On today’s BradCast: Something seemingly very interesting may have occurred at Tuesday’s oral arguments on two separate, if related, partisan redistricting cases at the U.S. Supreme Court. The results, believe it or not, could change the outcome from what many voting rights advocates had previously predicted following the resignation of Justice Anthony Kennedy and the subsequent seating of his far-right replacement Justice Brett Kavanaugh. [Audio link to complete show is posted at end of article.]
The scourge of state legislative and Congressional maps drawn for partisan advantage by the party in power after a decennial Census has crippled democracy and the voting power of citizens for decades in the U.S. But the GOP dramatically upped the stakes following the 2010 Census when they employed highly sophisticated computer mapping techniques to ensure themselves huge electoral advantages over the ensuing ten years by drawing extremely partisan maps that “packed” Democrats into a small number of districts or “cracked” them among several in order to dilute the voting power of non-Republicans.
It’s a practice that Democrats have carried out as well, if not to the same extreme as Republicans who took over many statehouses in the 2010 “red wave” election. A new analysis from AP finds that 2018’s “blue tsunami” election, for example, would have been much larger for Congressional Democrats, were it not for many extremely partisan GOP-drawn maps in a number of key states, including North Carolina, Ohio, Indiana, Wisconsin, Alabama and Texas. The AP study finds “Republicans won about 16 more U.S. House seats” than they would have under fair maps. Similarly, “Republicans’ structural advantage might have helped them hold on to as many as seven [state legislative] chambers that otherwise could have flipped to Democrats.”
While the U.S. Supreme Court has long found gerrymanders on a racial basis to be unconstitutional, they’ve yet to affirm the many lower court rulings finding partisan gerrymanders to be similarly unconstitutional. Last term, when many believed SCOTUS was prepared to do so, the Court punted instead on several cases of extreme partisan maps in Wisconsin, North Carolina and elsewhere, before Justice Kennedy — thought to have been the likely swing-vote in favor of ending the odious practice — announced his retirement.
On Tuesday, one of those cases, Common Cause v. Rucho — where a federal appeals court determined (twice!) that North Carolina’s Congressional maps were unlawfully skewed for Republicans (they’ve held a 10 to 3 advantage in their Congressional delegation for the past decade, despite the state being almost evenly divided between Republican and Democratic voters) — was heard again at SCOTUS. Another case, Benesik v. Lamone, in which a single Congressional district in Maryland was drawn by Democrats specifically to remove an incumbent Republican, was heard as well.
And while many voting rights advocates have not had high hopes for either case, given the even farther-right leaning majority on the court following Kennedy’s retirement, there were some surprises during oral argument, particularly from Justice Kavanaugh whose decision in one or both of the cases could change history by delivering a major win for voting rights.
We’re joined today to discuss these potentially encouraging developments with SUZANNE ALMEIDA, Redistricting and Representation Counsel for Common Cause, the lead plaintiff in the NC case. She was in the Court on Tuesday for both hearings and explains what seems to have happened, offers insight on what could now occur, decries why these cases are so important, and what may happen when SCOTUS finally delivers it’s crucial opinion in June in advance of both the crucial 2020 elections and the subsequent redistricting of all 50 states that will follow the 2020 Census.
“The North Carolina case is a particularly egregious case, for a couple of reasons,” Almeida tells me. “One is that we have an admission. On the floor of the General Assembly, Representative Lewis leaned into a microphone and said, ‘This is a partisan gerrymander. I wanted to this map to be 10-3 because it couldn’t be 11-2.’ That’s not the way that map-drawing should work, and that’s not the way representation should work in America.” She also discusses, for example, how one district line drawn by the GOP in North Carolina actually splits an historically African-American college in two, so that its voters are diluted into two separate Republican-leaning districts.
As to the matter concerning Kavanaugh, who was reportedly disturbed by his own district in Maryland, where he lives, being gerrymandered by Democrats to prevent Republican representation, Almeida confirms that he seemed to want to find a standard that could be used by courts to determine if districts were unlawfully gerrymandered on a partisan basis. She says she shares “the characterization that Justice Kavanaugh has a personal interest in the Maryland case … And he was pushing back quite strongly against the advocate for the state.”
Almeida also pushed back at the notion from Justices on the right that Courts should simply stay out of these matters, and leave them to voters and the legislators who drew the maps to keep themselves in power in the first place, she tells me: “This idea that the Court has that somehow this is self-correcting, or will fix itself through the magic of the political process, just doesn’t work. And that’s because gerrymandering is about power, and people in power staying in power. And when the people in power have that power to make the rules and draw the lines, that’s what they’re going to keep doing.”
She adds that comments from Kavanaugh and even Chief Justice Roberts during the proceedings on Tuesday are “reason to be optimistic”. But I’ll wait until the opinions come out in June before popping any champagne bottles on what could be, according to Mark Joseph Stern at Slate the “most important voting rights victory of the century so far.”
Also on today’s program: Speaking of 2020, some curious questions about why nobody from Team Trump — particularly Donald Trump Jr. or campaign chair Paul Manafort — has yet been charged with campaign finance violations regarding “soliciting” and/or “accepting” a “thing of value” from a foreign government, as clearly occurred in relation to the now-infamous June 2016 Trump Tower meeting with a number of Russian nationals. Election law expert Rick Hasen argues that the lack of indictments brought by Special Counsel Robert Mueller in this matter does not bode well for the Dept. of Justice’s plans to enforce election laws that bar “foreign governments from sharing information — even information obtained from illegal hacking — with campaigns, for the purposes of influencing the 2020 election…and beyond”…
Sounds like saviors are on sale (Follow The Immunity – 8).