Md. redistricting case could stall while Supreme Court hears Wisconsin case

Supreme Court to hear potentially landmark case on partisan gerrymandering

The Supreme Court declared Monday that it will consider whether gerrymandered election maps favoring one political party over another violate the Constitution, a potentially fundamental change in the way American elections are conducted. The justices regularly are called to invalidate state electoral maps that have been illegally drawn to reduce the influence of racial minorities by depressing the impact of their votes. But the Supreme Court has long been tolerant of partisan gerrymandering — and some justices have thought that the court shouldn’t even be involved. A finding otherwise would have a revolutionary impact on the reapportionment that will take place after the 2020 election and could come at the expense of Republicans, who control the process in the majority of states. The court accepted a case from Wisconsin, where a divided panel of three federal judges last year ruled that the state’s Republican leadership in 2011 pushed through a redistricting plan so partisan that it violated the Constitution’s First Amendment and equal rights protections. The issue will be briefed and argued during the Supreme Court term that begins in October. The justices gave themselves a bit of an out, saying they will further consider their jurisdiction over the case when it is heard on its merits. And the justices gave an indication of how divisive the issue might be. After granting the case, the court voted 5 to 4 to stay the lower court’s decision, which had required that new state legislative districts be drawn this fall. Wisconsin had argued that would create unnecessary work should the Supreme Court ultimately overturn the lower court’s decision and allow the Republican plan to stand. The liberal justices — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — went on record saying they would have denied the stay, meaning that the court’s five conservatives granted it. Justice Anthony M. Kennedy, who probably holds the key to the case, voted for the stay. The court’s action comes at a time when the relatively obscure subject of reapportionment has taken on new significance, with many blaming the drawing of safely partisan seats for a polarized and gridlocked Congress. Barack Obama has said that one of his post-presidency projects will be to combat partisan gerrymanders after the 2020 Census. Both parties draw congressional and legislative districts to their advantage. A challenge to congressional districts drawn by Maryland Democrats is making its way through the courts. But Republicans have more to lose because they control so many more state legislatures. The Republican National Committee and a dozen large Republican states have asked the court to reverse the decision of the federal court in Wisconsin. That state’s legislative leaders asked the Supreme Court in their brief to reject any effort that “wrests control of districting away from the state legislators to whom the state constitution assigns that task, and hands it to federal judges and opportunistic plaintiffs seeking to accomplish in court what they failed to achieve at the ballot box.” But the dozen plaintiffs — voters across the state — said the evidence laid out in a trial in the Wisconsin case showed that “Republican legislative leaders authorized a secretive and exclusionary mapmaking process aimed at securing for their party a large advantage that would persist no matter what happened in future elections.” In the election held after the new district maps were adopted, Republicans got just 48.6 percent of the statewide vote, but captured a 60-to-39 seat advantage in the State Assembly. The Supreme Court has been reluctant to tackle partisan gerrymandering and sort through arguments about whether an electoral system is rigged or, instead, a party’s political advantage is because of changing attitudes and demographics, as Wisconsin Republicans contend. The justices last took up the topic in 2004 in a case called _Vieth v. Jubelirer,_ which involved a Pennsylvania redistricting plan. The case split the court five ways, with the bottom line being that the justices could not agree on a test to determine when normal political instincts such as protecting your own turned into an unconstitutional dilution of someone else’s vote. Four justices — only Justice Clarence Thomas remains of the group — said it was not the court’s business to make such decisions. Four others — only Ginsburg and Breyer remain — said such challenges could be heard by the court, but they disagreed on the method. Kennedy was in the middle. He joined the first group in deciding the specific case against the challengers of the Pennsylvania plan, but he left the door open for future cases. Kennedy said he could envision a successful challenge “where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment.” What was elusive, Kennedy said, was “a manageable standard by which to measure the effect of the apportionment and so to conclude that the state did impose a burden or restriction on the rights of a party’s voters.” In the Wisconsin case, plaintiffs urged the use of a measure called the “efficiency gap” to determine how Republican mapmakers hurt Democrats with the main tools of gerrymandering: “packing” and “cracking.” These refer to packing like-minded voters, such as supporters of the same party, into a limited number of districts or cracking their influence by scattering them across districts in numbers too small to make an impact. Under the approach, developed by two University of Chicago professors, every voter packed into a district above the threshold needed to elect a candidate from his party creates a “surplus” vote. And someone in a cracked district who votes for a candidate who is unable to win is a “lost” vote. Surplus and lost votes are considered wasted votes. The efficiency gap measures the difference between the wasted votes of the two parties in an election divided by the total number of votes cast. The federal court in Wisconsin was not so definitive. It acknowledged the efficiency gap, but only as one of several theories the court said corroborated its findings that the Republican leadership had a discriminatory intent, that its plan had a discriminatory effect and that the state had no legitimate reason for drawing the districts in the way it did. The state contends that while Wisconsin is a purple state in national elections, its geography favors Republicans in legislative elections. Democratic voters are clustered in cities such as Milwaukee and Madison, while Republican voters are more evenly spread across the state. Any method of drawing districts will favor Republicans, they say. The case is _Gill v. Whitford_.

Supreme Court could tackle partisan gerrymandering in watershed case

MADISON, Wis. — With newly elected Scott Walker in the governor’s office and a firm grip on the legislature, Wisconsin Republicans in 2011 had a unique opportunity to redraw the state’s electoral maps and fortify their party’s future. Aides were dispatched to a private law firm to keep their work out of public view. They employed the most precise technology available to dissect new Census Bureau data and convert it into reliably Republican districts even if the party’s fortunes soured. Democrats were kept in the dark, and even GOP incumbents had to sign confidentiality agreements before their revamped districts were revealed to them. Only a handful of people saw the entire map until it was unveiled and quickly approved. In the following year’s elections, when Republicans got just 48.6 percent of the statewide vote, they still captured a 60-to-39 seat advantage in the State Assembly. Now, the Supreme Court is being asked to uphold a lower court’s finding that the Wisconsin redistricting effort was more than just extraordinary — it was unconstitutional. Such a conclusion would mark a watershed moment for the way American elections are conducted. The Supreme Court has regularly — and increasingly — tossed out state electoral maps because they have been gerrymandered to reduce the influence of racial minorities by depressing the impact of their votes. But the justices have never found a plan unconstitutional because of partisan gerrymandering — when a majority party draws the state’s electoral districts to give such an advantage to its candidates that it dilutes the votes of those supporting the other party. A divided panel of three judges in Wisconsin, though, decided just that in November. It became the first federal court in three decades to find that a redistricting plan violated the Constitution’s First Amendment and equal rights protections because of partisan gerrymandering. The Supreme Court could announce as soon as next Monday that it is either affirming or reversing the lower court’s decision, or, more likely, accepting the case for full briefing and arguments in the term that begins in the fall. The case comes at a time when the dusty subject of reapportionment has taken on new significance, with many blaming the drawing of safely partisan seats for a polarized and gridlocked Congress. Barack Obama has said that one of his post-presidency projects will be to combat partisan gerrymanders after the 2020 Census. In Wisconsin, it already has become a hot topic. “If there’s one word that defines the last year or year and a half in this country, it’s ‘rigged,’ ” said Dale Schultz, a Republican and former Wisconsin legislator who has joined with a Democratic counterpart to urge an end to the way the state handles redistricting. “People have come to realize their votes aren’t as important as they once were. And that’s really what this whole case is about: It’s about making sure people’s votes have equal value.” Schultz volunteered that he voted for the plan. After some run-ins with leaders of his party, he said he was just glad “they had not put my district in Iowa.” But he said he saw after the maps were enacted that legislators became more beholden to party leaders because the only real threat to reelection was a primary challenge. Schultz’s Democratic partner in the Fair Elections Project, former state senator Tim Cullen, added that he constantly hears from audiences that if his party had been in charge of the process, it would have done the same thing Republicans did. “And, of course, the answer to that is Democrats probably _would_ have done the same thing. But that doesn’t make it right,” he said. In fact, a challenge to the way Maryland Democrats drew districts to squeeze out one of the state’s two Republican congressmen is making its way through the courts, and a complaint about partisan gerrymandering by Republicans in North Carolina already is before the justices. Wisconsin’s Republican legislative leaders did not grant interview requests, but in their briefs to the Supreme Court, they said that if their redistricting is unconstitutional, so is that of about one-third of the other states. They asked the justices to reject any effort that “wrests control of districting away from the state legislators to whom the state constitution assigns that task, and hands it to federal judges and opportunistic plaintiffs seeking to accomplish in court what they failed to achieve at the ballot box.” Misha Tseytlin, Wisconsin’s solicitor general who is defending the redistricting plan, said the Republican advantage in the state legislature comes in part because its voters are spread across the state, and because it is winning the battle for voters in the purple state. “I think that political gerrymandering has become a — I don’t want to say an excuse, but something that a lot of folks who are frustrated by the state-level elections over the last eight years have come to rely on as an excuse,” he said in an interview in the state capitol. “It’s easier to have a villain than to say, oh, our party isn’t doing well, not selling its message or unfortunately for our party our voters are clustering in major cities.” The Supreme Court has been reluctant to tackle partisan gerrymandering and sort through arguments about whether an electoral system is rigged or, instead, a party’s political advantage is due to changing attitudes and demographics. The justices last took up the topic in 2004 in a case called  _Vieth v. Jubelirer_ . It split the court five different ways, with the bottom line being that the justices could not agree on a test to determine when normal political instincts such as protecting your own turned into an unconstitutional dilution of someone else’s vote. Four justices — only Justice Clarence Thomas remains of the group — said it was not the court’s business to make such decisions. Justice Anthony M. Kennedy joined the group to decide the specific case against the challengers of a Pennsylvania redistricting plan, but he left the door open for future cases. Kennedy said he could envision a successful challenge “where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment.” What was elusive, Kennedy said, was “a manageable standard by which to measure the effect of the apportionment and so to conclude that the state did impose a burden or restriction on the rights of a party’s voters.” William Whitford, one of a dozen plaintiffs suing over the Wisconsin plan, said his case, _Gill v. Whitford_ , should be attractive to the Supreme Court: “We think we have a standard.” Whitford, 77, was born in Madison, Wis. He is a Democratic partisan who lives in an old, left-leaning neighborhood near downtown where, he said, “it would take a genius to put me into a Republican district.” But he and the others in the lawsuit say the statewide partisan gerrymander makes it impossible for him to get the government he wants. “I want to get elected a Democratic majority,” he said. “It is the only chance for me to influence policy.” Whitford and his fellow plaintiffs asked the Wisconsin court to use a new approach to gauge how Republican mapmakers hurt Democrats with the main tools of gerrymandering: “packing” and “cracking.” These refer to packing like-minded voters, such as supporters of the same party, into a limited number of districts or cracking their influence by scattering them across districts in numbers too small to make an impact. University of Chicago law professor Nicholas O. Stephanopoulos and his political scientist colleague Eric McGhee, of the Public Policy Institute of California, called their theory the “efficiency gap.” Under their approach, every voter packed into a district above the threshold needed to elect a candidate from his party creates a “surplus” vote. And someone in a cracked district, who votes for a candidate that is unable to win, is a “lost” vote. Surplus and lost votes are considered wasted votes. The efficiency gap measures the difference between the wasted votes of the two parties in an election divided by the total number of votes cast. In an ideal scenario, where individual votes have as much impact as possible, the efficiency gap would be zero. The gap in Wisconsin was 13.3 percent in 2012. National groups opposed to partisan gerrymandering hail the theory as just the kind of objective test Kennedy said he was looking for. The Wisconsin court was not so definitive. It acknowledged the efficiency gap, but only as one of several theories the court said corroborated its findings that the Republican leadership had a discriminatory intent, that its plan had a discriminatory effect and that the state had no legitimate reason for drawing the districts in the way it did. Tseytlin, the solicitor general, said he finds it “frustrating” that the efficiency gap has been hailed as a way to scientifically measure gerrymandering and said challengers have backed off their reliance on the theory in their Supreme Court filings. “The actual standard that the district court used was kind of like a social-science mishmash,” he said. Paul M. Smith, vice president for litigation and strategy at the Campaign Legal Center, which is representing the plaintiffs at the Supreme Court, said his side has not retreated from the idea that the efficiency gap theory could be the test that convinces the Supreme Court but added that it was never meant to be the only gauge. “We don’t think any one formula has to have some kind of talismanic significance,” Smith said, adding that “the conclusion that this is one of the most extreme gerrymanders ever done is supported by the evidence — indeed, it’s compelled by the evidence — and supported by all of the different measures.” Tseytlin counters that there is plenty of evidence that points to a natural Republican advantage in Wisconsin, where Democratic voters are mostly clustered in Madison and Milwaukee. Because of its history of split government, Wisconsin legislators and governor have been unable to agree on redistricting plans in the past — the 2011 plan was the first in decades. So the maps had been drawn by federal judges, the “most nonpolitical way someone could draw a plan,” Tseytlin said. Under those court-drawn plans, Republicans won a majority of Assembly seats in every two-year election cycle since 1994, with the exception of 2008, the year of the Democratic landslide election of Obama. In 1998, Republicans won 49 percent of the statewide vote but 55 of the 99 Assembly seats, he said. In 2004, the party got 50 percent of the vote and won 60 seats. “The consequences of political gerrymandering in the real world have been greatly exaggerated,” he said. Whitford acknowledged Republicans may have something of a built-in advantage, but the 2011 redistricting plan gives Democrats no chance at all, he said. “I tell people, no harm is going to come from this case,” he said. “But we’ll be lucky to get a level playing field. It may be still tilted, just not as tilted.”

Wisconsin legislative map ruled illegally partisan; case will go to Supreme Court

Federal judges struck down Wisconsin’s legislative map on Monday as illegally partisan, an unusual ruling that will require the Supreme Court to once again consider whether political gerrymandering violates the Constitution. It is a question the court has addressed in the past without resolution. In its last attempt, Justice Antonin Scalia, who died in February, wrote that it was impossible for courts to come up with a test to decide when partisan line-drawing goes so far as to violate the rights of those who don’t belong to the party in power. But the justices are divided, and they have not shut the door to the possibility that such violations could exist. The three-judge panel in Wisconsin ruled 2 to 1 that such a violation occurred when the Republican assembly and Gov. Scott Walker (R) went to work drawing the state’s legislative districts in 2011. Judges in the majority said the Republicans drew lines to make it impossible for Democrats to receive their share of power. The evidence presented in a four-day trial established that “one of the purposes of Act 43 was to secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade, in other words to entrench the Republican Party in power,” wrote Judge Kenneth Ripple, who was nominated to the U.S. Court of Appeals for the 7th Circuit by President Ronald Reagan. He was joined by U.S. District Judge Barbara Crabb, who was nominated by President Jimmy Carter. District Judge William Griesbach, chosen by President George W. Bush, dissented. Such rulings on state redistricting plans go directly to the Supreme Court for review, without the usual stop at an appeals court. The Supreme Court must either affirm the judgment or schedule it for full briefing and decision. Although justices are often called to decide whether legislative and congressional apportionment plans are unconstitutional because of racial gerrymandering, it has never struck down a plan because it was too partisan. Some justices take a “to-the-victor-goes-the-spoils” view of redistricting; others think it an unconstitutional problem. In the court’s last look at the subject, Justice Anthony M. Kennedy ruled against the challengers at hand, but he noted that there could come a case where “the burdens and restrictions on groups or persons by reason of their views” would be so severe as to violate their First Amendment rights. Those who believe partisan gerrymandering has contributed to a more divisive political climate have been working to get such a case to the Supreme Court. Similar lawsuits have been filed in Maryland and North Carolina. Campaign Legal Center Executive Director J. Gerald Hebert, one of the lawyers in the case, said “the self-interested, unfair practice of partisan gerrymandering hurts our democracy. With this decision, partisan gerrymandering should come to an end in Wisconsin and is now on its way to extinction across the nation.” The judicial panel said the map-drawing was biased against Democrats. It noted that in 2012, Democrats received 51.4 percent of the statewide vote and won 39 seats in the legislative assembly. Republicans won 52 percent in 2014, and that translated into 63 seats.

Judges in Md. redistricting case decry politically motivated electoral map

A panel of federal judges on Friday sided with Republicans challenging Maryland’s electoral map, saying there is convincing evidence that the state’s Democratic leaders intentionally drew voting boundaries to make it easier for their party to pick up another congressional seat. One judge described the politically motivated mapmaking as “nefarious activity.” But the three-judge panel was divided about whether the contours of the 2011 redistricting plan were the direct cause of longtime GOP Rep. Roscoe G. Bartlett’s loss in 2012, and whether officials should literally have to go back to the drawing board before next year’s election. The judges at the U.S. District Court in Baltimore were considering a request for an immediate injunction that would scrap the electoral map at least for one congressional district, which lies mostly in Western Maryland but includes parts of Montgomery County. The hearing centered on the motivations of the state’s Democratic establishment when it redrew boundaries in 2011. Inside the wood-paneled courtroom, lawyers displayed photos and videotaped depositions of top Democratic officials, including Senate President Thomas V. “Mike” Miller Jr., House Speaker Michael E. Busch and former governor Martin O’Malley. The half-day session in Baltimore also reflected growing concern nationwide about gerrymandering, which is the subject of a Wisconsin case that is headed to the Supreme Court in the fall term, and which U.S. District Judge James K. Bredar on Friday called a “cancer on our democracy.” Looming over the hearing was a question of timing and how the Supreme Court’s decision to take the Wisconsin case will affect the challenge in Maryland, which also seems destined for the high court. The Supreme Court has thrown out state voting maps drawn to weaken the influence of racial minorities, but it has have never settled on a test to measure whether a plan is unconstitutional because of partisan gerrymandering. In the Maryland case, challengers are Republican voters who say they were punished because of their party affiliation and voting record when the Democratically controlled state government intentionally diluted the strength of GOP voters in the 6th District. For two decades, the district was represented by Bartlett. After the lines were redrawn to include more residents from heavily Democratic Montgomery, John Delaney (D) was elected. He still holds the seat. The office of Attorney General Brian E. Frosh (D), which is defending the plan, said state officials wanted to create a more competitive district, but that the election outcome was far from guaranteed. Assistant Attorney General Sarah Rice told the judges that forcing the state to redraw its electoral map now, less than a year before the 2018 primary, would be “extraordinary.” It would require a special session of the General Assembly, creating confusion for voters and forcing current candidates to “campaign under a cloud” of uncertainty. Her office wants to delay the lawsuit until after the Supreme Court rules in the Wisconsin case. Even as all three judges accepted what they called substantial and overwhelming evidence of partisan gerrymandering, two of the three seemed deeply skeptical that there were not other factors at work in Bartlett’s defeat. They also questioned the reliability of the measurements political consultants used to shift likely Republican and Democratic voters from one district to another. “Can you prove it? Where’s the concrete evidence that displaced voters would have voted for Bartlett?” U.S. District Judge George L. Russell pressed attorney Michael Kimberly, who represents the challengers. “You’ve got to demonstrate the results would have been different.” Russell and Bredar noted the difficulty of predicting individual voting patterns and pointed to the surprising outcome in the 2016 presidential election, when states that had supported Democratic President Barack Obama in 2012 backed Republican Donald Trump. Closer to home, the judges noted the election of Gov. Larry Hogan (R) in 2014 in a state where registered Democrats outnumbered registered Republicans more than 2-to-1. “It is an overwhelming case,” said Bredar who had earlier described the redistricting as “nefarious activity.” But, he said, “that still doesn’t answer the question of whether it worked.” The third judge, Paul V. Niemeyer of the U.S. Court of Appeals for the 4th Circuit, had no problem connecting the dots. “It seems to me they were highly successful in getting exactly what they wanted,” he said of the Democrats who oversaw redistricting. “These politicians had the power to make the map the way they wanted it.” An O’Malley spokesman declined to comment but pointed to a speech this year in which the former governor called for redistricting reform and said he believed in 2011 that he should wield his power to favor Democrats. Busch and Miller did not respond to requests for comment. In its brief, the attorney general’s office said there were other reasons for Bartlett’s defeat. At 85, his popularity was waning and he was having trouble raising money, the court filing said. The brief also noted that Delaney came close to being unseated by a Republican challenger in 2014. The judges did not indicate on Friday how quickly they will rule. If either side appeals the outcome, the case goes directly to the Supreme Court, which must either affirm, reverse or accept the case for oral arguments. Robert Barnes contributed to this report.

Republican redistricting is taking a beating in the courts, right now

Recent court decisions in three states are putting carefully carved Republican-drawn state legislative districts at risk — and could even threaten the entire process of partisan map drawing. On Friday, a federal court ordered Wisconsin legislatures to redraw their state House legislative districts after finding in November that the districts were unconstitutionally partisan. The order will essentially require lawmakers to redraw state Senate maps as well. The November decision was the first time this decade that a court has thrown out legislative maps because they favored voters of one party over another. Subsequently, this will be the first time in a decade that lawmakers will have to redraw maps specifically to make them more fair for both parties.   Wisconsin Democrats, who are in the minority in the legislature, were hoping the court would redraw the maps itself, but having a second shot at these maps is better than nothing. As such, they are demanding public hearings on the map-drawing process to try to keep a check on it.  Wisconsin is one of the most gerrymandered states in the nation. In 2012, Democratic candidates for the Wisconsin state legislature received more votes than Republicans in November but won just 39 of 99 districts. Republicans plan to appeal the decision to the U.S. Supreme Court, and it's anyone's guess how the justices will decide, said Doug Johnson, a redistricting expert at Claremont McKenna College. He said justices have shied away from declaring partisanship because they haven't agreed on a way to specifically measure what constitutes disproportionately burdening one member of a party over another. In Maryland, a federal court is preparing to hear arguments that several congressional districts were drawn by Democrats to unfairly benefit their party. “There's certainly a lot rolling toward the Supreme Court,” he said. “We just have no idea whether the court will get on board or continue to avoid this question.” The news Wisconsin lawmakers will have to redraw their state legislative maps comes almost exactly a week after a federal court found a dozen state legislative districts in Alabama were unconstitutionally racially gerrymandered. (The Democratic judge on that panel wrote that he would have thrown out 24 districts.) All 12 of the districts thrown out were represented by Democrats, and 10 by African American legislators. This court also left it up to the state legislature to redraw the districts, but because there are so many in question, the order would likely require lawmakers to redraw all state House and Senate districts. Here too, Democrats are thankful for a second chance.  North Carolina is no stranger to legal jousting over gerrymandering; lawmakers had to redraw two congressional districts last year after a federal court found them racially gerrymandered.  The three-judge panel made the unusual decision to let the election go forward because it decided it was too late to redraw the maps. After the election, the court ordered the legislature to redraw the lines by March and hold special elections later in 2017. Republican legislative leaders successfully managed to get the Supreme Court to pause those elections until it decides whether the districts were indeed gerrymandered. Over the past few years, courts have been litigating a steady stream of gerrymandering claims. But as the 2020 census nears — and brings with it a new chance to draw district maps — their decisions will be more closely watched than ever.

Supreme Court says Virginia redistricting must be reexamined for racial bias

The Supreme Court on Wednesday told a lower court to reexamine the redistricting efforts of Virginia’s Republican-led legislature for signs of racial bias and gerrymandered legislative districts that dilute the impact of African American voters. The justices declined to take a position on that issue. But they said a lower court had not applied the right standards when it concluded that the legislature’s work was constitutional. The decision was a win for black voters and Democrats who have challenged the General Assembly’s actions in drawing legislative as well as congressional lines. A win at the Supreme Court last term resulted in redrawing the congressional map in a way that favored the election of a second African American congressman last fall. It is unclear whether Wednesday’s technical and splintered decision would have such an impact or even whether any changes would be made in time for the fall elections. But the decision buoyed Democrats, who are making a push to field candidates in most, if not all, of the 100 seats of the House of Delegates that are up for election. The court ruling “contributes to the momentum that the Democrats believe they might finally have in actually being far more competitive in the Assembly elections this year than they have previously,” said longtime Virginia political analyst Bob Holsworth. “The redistricting case is on top of sort of the mobilization the Democrats are seeing in their local meetings, the increased attendance, the interest in actually running for election that you’re seeing among more people.” House Speaker William J. Howell (R-Stafford) said he was disappointed in the ruling but played down its significance. “The Supreme Court declined the plaintiffs’ request to find that the districts are unconstitutional,” Howell said. “The Supreme Court overruled the way in which the district court analyzed the case. We have read the court’s opinion and are quite confident that we will win when we go back to the district court.” Justice Anthony M. Kennedy, writing for five other justices, said the three-judge panel that initially considered the challenge made a mistake in its examination of Virginia’s districts. Under Supreme Court precedents, the maps can sometimes require an examination of race to make sure minorities have a chance to elect candidates of their choice. But race cannot be the predominate factor in drawing districts. In Virginia and other states, challengers have said Republicans have packed minorities into a small number of districts to make surrounding areas more hospitable to GOP candidates. The lower court held that if traditional redistricting practices such as compactness and protecting incumbents could explain a district, then race could not have been the predominant reason for their creation. But Kennedy said courts must look at the real reason for drawing the district, not whether it could be justified by other means. “A state could construct a plethora of potential maps that look consistent with traditional, race-neutral principles,” Kennedy wrote. “But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.” Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Kennedy’s opinion. Justice Samuel A. Alito Jr. mostly concurred, and Justice Clarence Thomas repeated his disapproval of using race to draw legislative districts, whether it predominates or not. Voting law experts disagreed about the decision’s impact. Richard Hasen, an election law expert at University of California at Irvine, said the ruling was technical and did not greatly expand the court’s precedents. New York University law professor Richard Pildes disagreed. “The court’s opinion today is more forceful and clear than it has ever been that unconstitutional racial gerrymandering can occur even when a state draws districts that look regular and follow traditional districting principles,” he wrote in a blog post. Marc E. Elias, who represented the challengers, said the decision will make it easier to win when the lower court reconsiders the 11 districts at issue. Its previous decision shut down efforts to show that Virginia was able to “hide the racial gerrymandering in districts that don’t look bizarre,” he said. The Supreme Court upheld one district that was disputed, saying the legislature had made the case that it needed a black voting age population of 55 percent in order for a minority candidate of choice to prevail. The House districts are in Richmond, the Hampton Roads area and along the state’s southern border. All have African American voter majorities. In the House, where Republicans were in charge when the legislative districts were redrawn after the 2010 Census, Democrats are outnumbered 66 to 34. (In the Senate, where Democrats were in control at the time of reapportionment, the GOP has a 21 to 19 advantage.) Democrats have already announced candidates in 75 House districts this year, and they are counting on national attention — and money — as they cast their races as referendums on President Trump. It is unclear if the case could play out before the November elections. But if the lower court rules that boundaries have to be redrawn at any point after that, Virginia would have to call special elections. Aside from the 11 districts affected by this case, an additional five are being litigated in Richmond Circuit Court, where a redistricting advocacy group has challenged them as being too sprawling to meet federal standards of compactness. That hearing is set for later this month. If all the districts in both cases were found to be unconstitutional, they and the ones around them would have to be redrawn. That could amount to 30 districts or more in total — roughly a third of the Virginia House, said Brian Cannon, executive director of One Virginia 2021, the redistricting advocacy group that filed the Richmond case. The decision came in _Bethune-Hill v. Virginia State Board of Elections_. Schneider reported from Richmond.

Supreme Court says challenge of Maryland district lines may proceed

The Supreme Court ruled unanimously Tuesday that a Maryland man may proceed with his lawsuit alleging that the state’s congressional redistricting plan was unconstitutionally gerrymandered. The court said lower courts were wrong to dismiss the lawsuit that Steve Shapiro filed on behalf of himself and others challenging the state’s redistricting after the 2010 Census. The state’s overwhelmingly Democratic political leadership changed the lines to make it easier for Democrats to win in seven of the state’s eight congressional districts. While Justice Antonin Scalia said the court was not expressing any view on the merits of Shapiro’s suit, he added that his claim “easily clears” the bar set for whether a special three-judge panel should be convened to consider the suit. A district judge had dismissed the claim, and the U.S. Court of Appeals for the 4th Circuit upheld that decision. “Perhaps petitioners will ultimately fail on the merits of their suit,” Scalia wrote, but the law “entitles them to make their case before a three-judge district court.” Shapiro is a longtime scourge of the Maryland General Assembly’s reapportionment efforts, and this year he retired from his job with the federal government to enter law school at American University. He filed the suit on his own but was represented at the Supreme Court by legal counsel. “The justices had exquisite timing,” said Shapiro, 55. “Finals start tomorrow.” A spokeswoman for Maryland Gov. Larry Hogan (R) said the suit highlights an unacceptable amount of political influence in Maryland’s redistricting efforts. “Maryland has the most gerrymandered districts in the nation, and Gov. Hogan has made it very clear that the entire redistricting process needs to be fully reformed,” said Shareese DeLeaver Churchill. “Today’s decision highlights the importance of the governor’s bipartisan efforts to accomplish this reform and ensure that all voters are equally represented.” In a 2004 decision in _Vieth v. Jubelirer_ , a plurality of the court concluded that after many years of trying, courts had not been able to come up with a test to decide when partisan gerrymandering — as opposed to racial gerrymandering — went too far. Justice Anthony M. Kennedy agreed with those justices in that case but wrote separately that he did not think that barred “all future claims of injury from a partisan gerrymander.” Kennedy said he could envision a First Amendment challenge “where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views.” That is what Shapiro is trying to get courts to examine in Maryland. Scalia said Shapiro’s claim cannot be considered “obviously frivolous” when it is “based on a legal theory put forward by a justice of this court and uncontradicted by the majority in any of our cases.” And although the court did not express an opinion on Maryland’s districts, it did note that Shapiro was motivated by the “crazy-quilt” results. Voters have approved Maryland’s redistricting, and lower courts have upheld it against charges of racial gerrymandering. But even when Maryland won, judges noted the contorted handiwork. For instance, the 3rd Congressional District, now held by Democratic Rep. John Sarbanes (D), has been called one of the most gerrymandered in the nation, roping together voters in Silver Spring, northern Montgomery County, Columbia, Annapolis, the city of Baltimore, and Baltimore County. U.S. Circuit Judge Paul V. Niemeyer likened it to a “broken-winged pterodactyl, lying prostrate across the center of the state.” It has also been compared to a blood splatter at a crime scene. Interestingly, Shapiro and the attorney who represented him at the Supreme Court, Michael Kimberly, are Democrats. But if their suit is ultimately successful, it will be Republicans who benefit. The case is _Shapiro v. McManus_.

Maryland redistricting lawsuit can go forward, federal judges rule

A lawsuit challenging Maryland’s contorted congressional district map on First Amendment grounds has merit and should go forward, a three-judge federal panel ruled Wednesday. The map, drawn by Maryland’s Democratic lawmakers following the 2010 Census, essentially ensured that seven of the state’s eight congressional seats would be under their party’s control. According to the lawsuit, the redistricting specifically targeted western Maryland’s 6th District, where lines were altered to help unseat 10-term incumbent Rep. Roscoe G. Bartlett (R). Bartlett was defeated by John Delaney (D) in 2012. The suit, brought by Steve Shapiro, an American University law student, presents a novel argument: that the gerrymandered map violated the rights of 6th District Republican voters to political association and expression. It asks that the state be barred from using the map in any future elections. The suit was thrown out by a federal judge in 2014. But the Supreme Court ruled in December that Shapiro should have gotten a hearing before a three-judge panel. The case was sent back to federal district court and heard last month in Baltimore. Wednesday’s 2-to-1 decision will have no impact on November’s congressional elections. The three-judge panel denied the state’s motion to dismiss the case, which will be tried sometime in the next several months, before the same judicial trio. Michael Kimberly, Shapiro’s attorney, said that if his client prevails at trial, and the case ends up back in the Supreme Court, it could eventually bring sweeping changes to redistricting across the country. “This could be the biggest gerrymandering case in a generation,” Kimberly said. “It could have enormous impact.” Maryland Gov. Larry Hogan (R), who has called for a nonpartisan commission to draw congressional and state legislative districts, called the ruling “a tremendous step forward in the fight for free and fair elections.” “Redistricting reform is not a partisan issue but an issue that all Marylanders — Democrats, Republicans, and Independents — should embrace and actively push to enact,” the governor said in a statement. While the Supreme Court has been active in enforcing the Voting Rights Act, which bars racial gerrymandering, it has not definitively addressed partisan gerrymandering. The reason, Justice Antonin Scalia said in writing for the majority in the 2004 case _Vieth v. Jubelirer_ , is that it is difficult to devise a test to determine when lawmakers have gone too far in adjusting district boundaries for partisan advantage. In a concurring opinion, Justice Anthony M. Kennedy left the door ajar for a challenge to redistricting based on the First Amendment, if plaintiffs can prove that redistricting created “disfavored treatment” of groups because of their voting preferences. Shapiro and Kimberly picked up on Kennedy’s suggestion. Fourth Circuit Judge Paul V. Niemeyer, writing for the majority in Wednesday’s ruling, said the First Amendment argument has never been rejected by the Supreme Court in past gerrymandering cases. He said that the complaint “adequately employs First Amendment jurisprudence to state a plausible claim for relief.” U.S. District Judge George L. Russell III also sided with Shapiro. U.S. District Judge James K. Bredar, who threw out the case in 2014, remained opposed to the lawsuit. At trial, Shapiro and Kimberly will have to present hard evidence that Maryland officials looked at party affiliation and voting histories of 6th District voters and took that information into account in drawing the map. Kimberly said Wednesday that members of the General Assembly and the redistricting committee created by then-Gov. Martin O’Malley (D) were quite transparent about their goals. “All of the major actors in this case were all pretty straightforward on the public record about what they did, and how they did what they did,” Kimberly said.

Supreme Court takes up Virginia redistricting case

RICHMOND — The U.S. Supreme Court said Friday that it will review whether Virginia lawmakers improperly packed minority voters into one congressional district at the expense of their influence elsewhere in the state. The court will consider whether earlier court decisions that ruled the districts invalid were correct. A three-judge panel of the U.S. District Court of the Eastern District of Virginia has twice invalidated the boundaries of a snake-like district that stretches from Richmond southeast to Norfolk — and ordered lawmakers to redraw the election map. The Supreme Court’s action represents a small victory for Virginia House Speaker William J. Howell (R-Stafford) and Senate Majority Leader Thomas K. Norment Jr. (R-James City), whose chambers would draw up the boundaries. Republicans had insisted on letting appeals play out before they abided by the order in case the high court intervened, as it did Friday. “Today’s order from the Supreme Court validates the Speaker’s position that the defendants should have the opportunity to fully litigate this case before a new congressional map is drawn,” Howell spokesman Matt Moran said in a statement. “In August, the Speaker and Senator Norment asked the Eastern District Court to delay its timeline for this very reason. We will monitor the case as it moves forward.” Gov. Terry McAuliffe (D) this summer convened a special session to adopt new maps, but an unrelated tussle over a judicial appointment abruptly ended the session before any progress could be made. McAuliffe asked the federal district court to redraw the maps on its own — a process that has played out while the Supreme Court considered whether to take up the case. Howell also recorded a win last month when a panel of three federal judges ruled on a similar case that targeted 12 House of Delegates districts. In that case, the court ruled the districts constitutional, and Democrats have filed an appeal of their own, potentially putting a second Virginia redistricting case before the Supreme Court. The two Virginia lawsuits and similar ones around the country were brought by Marc E. Elias and funded by the National Democratic Redistricting Trust. Elias is general counsel to Hillary Rodham Clinton’s presidential campaign and worked on the McAuliffe campaign. Elias said he reads it as a “good sign” that the Supreme Court wants to consider the case, in part based on who has the authority to challenge lower-court rulings. “It’s not a surprise in that the Supreme Court had to say something,” he said. “I think that the standing question is an interesting one so it doesn’t entirely surprise me that they took it up. But you never know what motivates the Supreme Court to take a case.” But in saying it would consider the case, the court also raised an issue that might prevent it from reaching the merits of the panel’s decision: whether any of those appealing the ruling have legal standing to challenge it. The court called for briefing on “whether appellants lack standing because none reside in or represent the only congressional district whose constitutionality is at issue in this case.” Both Virginia lawsuits assert that Republicans packed racial minorities into certain districts to dilute their influence elsewhere. Democrats contend that the state’s lopsided congressional and House delegations — the GOP has eight of Virginia’s 11 congressional seats and a supermajority in the House — is evidence of illegal gerrymandering. The court already is looking at Maryland’s redistricting plan, but for the more limited question of whether the lawsuit challenging the partisan nature of the redistricting should have gone to a three-judge panel instead of being dismissed by a single judge. In Virginia, the congressional case has taken a circuitous route through the courts. A federal three-judge panel ruled in favor of Elias in October 2014 and ordered the Virginia House of Delegates to redraw the congressional map. Attorney Michael A. Carvin appealed on behalf of Virginia’s Republican congressional delegation. While the appeal was pending, the Supreme Court decided a similar redistricting case in Alabama and ordered the federal panel to reconsider the Virginia one. The judges affirmed their earlier decision, and congressional Republicans again appealed. On Friday, they were successful in getting the high court to take a look. Because of the special nature of redistricting challenges, appeals from three-judge panels go directly to the Supreme Court. A third Virginia redistricting lawsuit was filed in September. In that case, a group of Virginia residents challenged 11 legislative districts — including some in Northern Virginia — charging that they violated the state Constitution by enforcing election maps that too easily protect incumbents. The plaintiffs argued that during the last round of redistricting, in 2011, the General Assembly drew the districts to give incumbents the best chance at holding on to their seats at the expense of geographical compactness, which the Constitution requires. If successful, the suit could scrap the maps and send vulnerable lawmakers scrambling to compete in newly drawn districts. It is funded by OneVirginia2021, a nonprofit group pushing for nonpartisan redistricting. Howell has said the current process for drawing maps works fine, and he’s confident that the districts will withstand the challenge. But the Senate, where Republicans have a one-vote edge, passed three nonpartisan redistricting bills in this year’s session only to see them die in the House. Robert Barnes contributed to this report.

Supreme Court leaves in place Va. redistricting decision, rejects GOP lawmakers’ challenge

The Supreme Court on Monday left in place a lower court’s decision that redraws some of Virginia’s congressional districts and creates the possibility of electing a second black U.S. House member from the commonwealth. The justices ruled unanimously that three Virginia Republican congressmen who challenged the lower court’s decision — Reps. J. Randy Forbes, Rob Wittman and Dave Brat — do not have the necessary legal right to proceed. Without that, the court dismissed the appeal. Democrats cheered the decision, with the head of the state party calling it a blow to “racial gerrymandering” and an advance for fair representation. “This decision strengthens a fundamental pillar of democracy by amplifying the voices of Virginians through better representation in Congress,” Becca Slutzky, chair of the Virginia Democrats, said in a statement. But such cases have yielded mixed results for Democrats in Virginia. They recently lost a similar challenge of state House of Delegates districts, and the GOP-controlled General Assembly is preparing for another round of congressional and state legislative redistricting in five years. A three-judge panel last year decided that the Republican legislature had packed African American voters into the Hampton Roads-based 3rd Congressional District, which is represented by the state’s lone black congressman, Rep. Robert C. “Bobby” Scott, a Democrat. As a result, the surrounding districts became safer for white Republican candidates. At oral argument, the Supreme Court’s liberal justices had aggressively questioned whether the Republicans had standing to challenge the lower court’s efforts. The three federal judges who examined the commonwealth’s plan said it veered from partisan gerrymandering aimed at protecting incumbents — for which the Supreme Court has shown a high tolerance — into racial gerrymandering, which the Constitution forbids. The judges gave the legislature a chance to redraw the map, but lawmakers were unable to do so. So the lower court panel imposed a map of its own and redrew the boundaries in a way that hurt some incumbents and opened the way for a black candidate to run in District 4. State Sen. A. Donald McEachin (D-Henrico), the African American chair of the state Senate Democratic Caucus and a one-time candidate for attorney general, is seeking the seat. “An injustice has been rectified,” he said Monday. It’s important for voters to elect someone “who best represent their hopes, their ideas and their ideals and worry about the color of their skin secondarily — or not at all, actually,” he said. Virginia declined to challenge the lower court’s map, leaving space for Republican members of Congress to step in and fight it. Forbes and Wittman did not respond to requests for comment on Monday’s decision. The state GOP declined comment. A Brat spokeswoman, Barbara Boland, said Monday’s decision does not address what she called the “fundamentally flawed ruling” of the divided lower court. “While the decision ends this case, nothing has changed for future [redistricting] actions elsewhere in the United States,” she said. Because of the changes to what had been his old district, Forbes decided to run in District 2, where the incumbent was retiring. After oral argument, Forbes told the Supreme Court in a letter he would continue to run in District 2, no matter the outcome of the case. “Given this letter, we do not see how any injury that Forbes might have suffered is likely to be redressed by a favorable judicial decision,” Justice Stephen G. Breyer wrote for the court in dismissing the appeal. Even if true, the court said, that would be only a debatable reason to consider overturning the panel’s decision. Quentin Kidd, a political science professor at Christopher Newport University in Newport News, said Forbes’s candidacy made it clear that the congressman expected the lower court map would probably stay in place. “That made me understand how deeply the Republicans felt they were going to lose the case because that’s who challenged it, the Republican members of the delegation,” he said. In the decision, Breyer wrote that Wittman and Brat, who are both seeking reelection in their current districts, “have not identified record evidence establishing their alleged harm.” “Representatives Wittman and Brat claim . . . their districts will be flooded with Democratic voters and their chances of reelection will accordingly be reduced,” Breyer wrote. But he said the court searched the record for “any evidence” that the new plan will reduce their reelection chances, “and have found none.” While running for another term in Congress, Wittman is also raising money to run for governor in 2017. Because of the lack of standing, the Supreme Court did not address the central issue of the case: whether the Virginia General Assembly was motivated by protecting incumbents — the state’s congressional delegation consists of eight Republicans and three Democrats — or impermissibly used race in creating the districts. Under the Supreme Court’s guidance and the Voting Rights Act, state lawmakers must consider the race of those who populate each district to ensure minorities have a fair shot at being represented. But lawmakers fail if they let race become the predominant issue in drawing the lines. The case is _Wittman v. Personhuballah._ Voters in June will go to the polls to elect members of Congress from the revised districts. For longtime observers of Virginia politics, the congressional lawsuit is the latest wrinkle in cyclical battles over district boundaries. C. Douglas Smith, vice president for the Robert H. Smith Center for the Constitution at James Madison’s Montpelier, has advocated for reducing the influence of politics on the process. “This is a fine Virginia tradition. Patrick Henry did it to James Madison in 1788,” he said. “We shouldn’t call it gerrymandering. We should call it Patrick Henry-mandering.”

Election reform is on the line at the Supreme Court

SUPREME COURT observers focused on the Affordable Care Act case this week. But the justices heard arguments Monday in another case with potentially major implications for the country’s proper functioning: a dispute over whether voters can break the self-serving system in which state politicians manipulate voting districts to their own and their party’s benefit. The case concerns an amendment to the Arizona constitution that empowered a nonpartisan committee to create district maps — without input from or the approval of state lawmakers. Voters went over the heads of state legislators, limiting politicians’ regularly abused power to manipulate the political system. That’s the problem, Arizona’s legislature argues. The U.S. Constitution stipulates that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Defenders of the reform argue that election procedures must emerge from a legislative process — which includes voter initiatives — not necessarily from the legislature itself. State legislatures’ control over federal electoral procedure has never been impervious to direct popular intervention. Voters through the years have imposed all sorts of procedural changes without their legislatures’ consent, and the court isn’t going to strike all of those down. Paul D. Clement, the Arizona legislature’s attorney, didn’t have a great answer to why voters could do an end-run around state lawmakers in some instances of election reform but not in others. Yet he might have swayed the justices when he argued that the Constitution’s words, if they mean anything, preclude voters from “the most extreme case” of stripping state legislatures of their power to draw district lines, pretty much irreversibly. If the court agrees, Arizona’s lawmakers could go back into the business of distorting election results by aggregating and dividing voters into contorted districts, and the movement to fix the nation’s elections would be dealt a big setback. Even such a decision, though, shouldn’t end reform. Partisan redistricting is not the only problem with American democracy, but it’s undeniably harmful. For proof, look at the nakedly, repugnantly partisan electoral maps that Republicans drew in North Carolina and Democrats drew in Maryland. Statehouse majorities carefully sliced up their states to magnify the partisan tilt of their representation in Washington. The result is a deep and unjustifiable insult to the principle of one man, one vote. If the Arizona legislature wins the case, then the question will be how much election reforms must acknowledge and include state legislatures in their new processes. One possibility that came up Monday would have a redistricting commission submit a few electoral map proposals to the legislature, which could choose one. Or a commission could draw one map, on which state lawmakers could vote up or down. Perhaps reformers could demand that a supermajority of lawmakers be required to reject a commission redistricting plan. There are many possibilities. The only one that should be off the table is doing no more to combat gerrymandering. **Read more about this topic:** The Post’s View: A proposal that mocks democracy in Virginia The Post’s View: Virginia’s powerless voters Jon Husted: From Ohio, lessons in redistricting reform The Post’s View: Can Larry Hogan bring much-needed redistricting reform to Maryland?

Supreme Court appears conflicted on dismissal of gerrymandering case

The Supreme Court seemed conflicted Wednesday about whether a Maryland man may proceed with his complaint that the redistricting process in the state is unconstitutionally partisan. Some justices were concerned that a single federal district judge had decided on his own to curtail Steve Shapiro’s lawsuit over Maryland’s much-criticized gerrymandered congressional map rather than send it to a special three-judge panel to see whether the complaint had merit. Justice Stephen G. Breyer said Shapiro and his co-plaintiffs “want to raise about as important a question as you can imagine. . . . And if they are right, that would affect congressional districts and legislative districts throughout the nation.” But other justices seemed concerned about further involving the court in the political machinations of redistricting, where the party in control of a legislature routinely draws congressional and legislative districts to its own advantage. “This court has never seen [a political gerrymandering challenge] that it thought was justiciable,” said Justice Samuel A. Alito Jr., referring to a controversy over which the courts, rather than the political branches, can grant a remedy. Shapiro, a longtime foe of partisan gerrymandering who has quit his job as a federal worker to enroll in law school, wants to give the Supreme Court another chance to make that call. In a 2004 decision in _Vieth v. Jubelirer,_ a plurality of the court concluded that after many years of trying, courts had not been able to come up with a test to decide when partisan gerrymandering — as opposed to racial gerrymandering — went too far. Justice Anthony M. Kennedy agreed with those justices in that case, but he did not think that barred “all future claims of injury from a partisan gerrymander.” Kennedy said he could envision a future First Amendment challenge “where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views.” Shapiro’s attorney, Michael B. Kimberly, told the court: “It’s Justice Kennedy’s concurrence in _Vieth_ that provides the basis for the complaint in this case.” Although registered Democrats in Maryland outnumber Republicans 2 to 1, the state’s Democratic leadership drew its eight congressional districts to make seven of them safe for Democrats. A judge in a case separate from Shapiro’s compared one of the state’s congressional districts — which expands and contracts to include residents of Silver Spring, Columbia, Annapolis, the city of Baltimore and Baltimore County — to a “broken-winged pterodactyl, lying prostrate across the center of the state.” In most cases, challenges to redistricting arrive before a federal district judge only long enough to be referred to a special three-judge panel, as outlined in federal law. But U.S. District Judge James K. Bredar dismissed Shapiro’s First Amendment complaint on his own. He said Shapiro’s remedy was persuading the Maryland General Assembly and Congress, not the courts, to change the process. The question before the Supreme Court is whether that decision was correct or whether a judge is required to pass along such a lawsuit to the three-judge panel. Kimberly told the court that Congress wanted such constitutional challenges to be settled quickly, with a decision by the three judges and then immediate review by the Supreme Court. Shapiro’s case showed the wisdom of that system, he said. Shapiro already has been before a district judge, an appeals court and now the Supreme Court. If he is successful with the justices, the process in effect would start over: He would argue the merits of his claim to a three-judge panel, and the resulting decision would go back to the Supreme Court. Justice Antonin Scalia seemed taken aback by the cumbersome process. “Wow, that’s — I mean, that’s my comment,” Scalia said. But Maryland Assistant Attorney General Steven M. Sullivan — and some justices — said that was a reason that district judges should have the power to dismiss such complaints. There were seven challenges to Maryland’s redistricting that were dismissed, he said, rather than further clogging already crowded court calendars. Sullivan said a “legally insufficient complaint that otherwise could not get past the threshold of the courthouse is going to get a direct appeal to this court.” Chief Justice John G. Roberts Jr. was concerned as well. The law’s requirement that the Supreme Court review a decision of a three-judge panel is a departure from the normal process, where the justices decide whether the cases present a legal issue that requires their involvement. “That’s a serious problem because there are a lot of cases that come up in three-judge district courts that would be the kind of case — I speak for myself, anyway — that we might” decline to take, Roberts said. Even Breyer said he had concerns about that. And Roberts and Alito questioned Kimberly’s assertion that a three-judge panel was the best way to assure the public that politics had been removed from a court’s decision about a redistricting plan. The process of appointing the panel might be open to judicial politics, Alito said. “So I don’t see how that creates an insulation against the appearance of political favoritism,” he said. Kimberly replied that any process is open to criticism. But Congress’s view, he said, is that “the public could rest more easy when decisions of such political importance and sensitivity are decided by three judges rather than one.” The case is _Shapiro v. McManus_.

Supreme Court may decide against Va. Republicans in redistricting fight

The Supreme Court on Monday seemed likely to leave in place a lower court’s decision that redraws some of Virginia’s congressional districts and creates the possibility of electing a second black U.S. House member from the commonwealth. The justices seemed concerned that Virginia’s Republican-led legislature had packed African American voters into the Hampton Roads-based 3rd Congressional District, which is represented by the state’s lone black congressman, Rep. Robert C. “Bobby” Scott, a Democrat. As a result, the surrounding districts became safer for white Republican candidates. The court’s liberal justices also questioned whether former and current Republican congressmen had the legal right — which is called standing — to challenge the lower court’s redrawing of the map in a way that hurts some incumbents and encourages a black candidate to run in District 4. Justice Sonia Sotomayor told Washington lawyer Michael A. Carvin that his clients were asking for a rule that says “every change that affects an incumbent gives the incumbent the right to challenge the line of change . . . an incumbency-protection standing rule.” Because of the death of Justice Antonin Scalia, the court is operating with only eight members. Even a tie would uphold the lower court’s decision, which has scrambled Virginia politics and could mean a change in the state’s congressional delegation. The hearing lasted more than an hour and displayed the intricacies and high political stakes that come when states divide their residents into congressional districts. Carvin generally represents Republicans and his adversary and fellow Washington lawyer Marc E. Elias represents Democrats, and their Virginia battle is being replicated in courts around the country. Under the Supreme Court’s somewhat hazy guidance and the Voting Rights Act, state lawmakers must consider the race of those who populate each district to ensure minorities have a fair shot at being represented. But lawmakers fail if they let race become the predominant issue in drawing the lines. The three federal judges who examined the commonwealth’s plan said it veered from partisan gerrymandering aimed at protecting incumbents — for which the Supreme Court has shown a high tolerance — into racial gerrymandering, which the Constitution forbids. The judges gave the legislature a chance to redraw the map, but legislators were unable to do so. So the panel imposed a map of its own. In a separate proceeding, the Supreme Court refused to stay that plan, and voters in June will go to the polls to elect members of Congress from the revised districts. Carvin told the court that when redrawing the map after the 2010 Census, the Virginia General Assembly was motivated by protecting incumbents — the state’s congressional delegation consisted of eight Republicans and three Democrats — and preserving core areas of existing districts. It was a success, he said. “Every incumbent was reelected.” But former state delegate Bill Janis (R-Glen Allen), who devised the commonwealth’s congressional map, testified that he did not consider partisan implications of his plan. He said he decided the voting-age black population in Scott’s district should be increased to at least 55 percent to comply with the Voting Rights Act. “That’s what the drafter of the plan said,” said Justice Ruth Bader Ginsburg. “He didn’t take into account partisan performance.” Chief Justice John G. Roberts Jr. said that did not mean that the entire legislature was motivated by racial decision-making. “How do you show what the motive of the legislature was?” he asked. But Justice Anthony M. Kennedy was concerned. Even if politics motivates the line-drawing, Kennedy said, “May we then use race to move people from one district to another, simply because that’s the easiest way to do it? We know that this is a race that votes strongly for a particular party, so we can use race for this ultimate neutral purpose?” Carvin said no, but that race and politics in this case were “co-extensive.” Justice Elena Kagan said that did not matter. “Does the fact that it also has political benefits, does that insulate these line drawers from what you would think is the obvious conclusion, which is this is unconstitutional conduct?” she asked. Representing Virginia, state Solicitor General Stuart A. Raphael said the commonwealth originally defended the legislature’s work, but now believes the decision of the lower court should be accepted. “Did anything else happen between the time when your office took the prior position and your appearance here today?” asked Justice Samuel A. Alito Jr., to laughter. His obvious reference was that the state’s governor and attorney general are now Democrats, where Republicans previously held the jobs. Although Raphael supported the lower court, he also said that, on the question of standing, Rep. J. Randy Forbes (R), who currently represents District 4, should be able to challenge the lower court’s decision to radically change his district. Forbes currently has decided to run for the seat being vacated by Rep. Scott Rigell (R). But Elias, and Deputy Solicitor General Ian H. Gershengorn, representing the federal government, said he should not. They said Kagan and other justices were correct to question whether a member of Congress has a legally recognized right to challenge unfavorable changes to his district. “Under the American system, voters choose candidates,” said Elias. “They choose their elected officials. It is not the other way around.” The case is _Wittman v. Personhuballah_.

Supreme Court will weigh in on whether Va. districts are racially gerrymandered

The Supreme Court announced Monday it will take its second look at whether Virginia’s Republican political leaders gerrymandered the state’s electoral maps in order to diminish the power of African American voters. Last month, the justices upheld a plan imposed by a lower court that redrew some of the commonwealth’s congressional districts and created the possibility of electing a second black U.S. House member. On Monday, the court said it would review a different court’s rejection of a challenge that said Republican leaders reduced the strength of minority voters by packing them into a dozen House of Delegates districts. A three-judge panel had voted 2 to 1 that the districts were constitutional and that race had not been the primary consideration in drawing them. The case will be considered in the new term that begins in October, and if the Supreme Court orders any changes in the districts, they would presumably take place in advance of the 2017 elections. The Supreme Court is increasingly being asked to consider cases of alleged racial gerrymandering. Unlike the usual process involved in selecting which cases it will review, federal law leaves the court little discretion in deciding whether to review redistricting challenges. Last year, the court sent back Alabama’s legislative redistricting plan, saying legislators had failed to find the legal sweet spot between districts drawn with enough minority voters that they can elect representatives of their choice but not with so many minority voters that surrounding districts are intentionally made safe for white Republicans. The Virginia cases were brought by Marc E. Elias and funded by the National Democratic Redistricting Trust. Elias is general counsel to Hillary Clinton’s presidential campaign and worked on the campaign of now-Gov. Terry McAuliffe (D). Virginia House Speaker William J. Howell (R-Stafford) said the three-judge panel in the current case “plainly laid out the constitutionality of Virginia’s House of Delegates redistricting plan and we are confident that upon review the Supreme Court will affirm the lower court ruling.” Supporters of the plan noted that every member of the Legislative Black Caucus voted for it when it was drawn in 2011. But support from black incumbents does not guarantee that the maps were fair, said Brian Cannon, executive director of OneVirginia2021, a nonprofit group pushing for nonpartisan redistricting. “It’s not about the black legislators. It’s about the black voters, whether African American voters have been illegally packed into districts,” Cannon said. “This leaves a number of communities split. It wrings out competition from elections, and it only serves as an incumbent-protection racket.” He added: “The Supreme Court has a chance to uphold good-government redistricting criteria in this case because what they’re faced with is a scenario in which the political process subverted all other good-government criteria in favor of politics.” Richmond braced for a stalemate over redistricting in 2011, the first time since Reconstruction that political map-making had been undertaken by a divided legislature. But the GOP-led House and Democratic-led Senate struck an informal deal: Republicans in the House agreed to accept Senate lines drawn by Democrats, and Democrats in the Senate agreed to accept House lines drawn by Republicans. Some Democrats complained at the time that the GOP could have drawn two additional majority-minority districts but chose not to. Many black legislators spoke in favor of the plan, saying that their views had been taken into account. The deal sailed through the House on an 86-to-8 vote. Most of the resistance came from Republicans in the closely divided Senate, where the map was passed on a straight party-line vote of 22 to 18. Senate Republicans said at the time that the Democratic plan divided up too many counties and cities and contained districts that varied too widely in population. More recently, House Democrats have begun complaining about the lines. “We have a state that is essentially a 50-50, Republican-Democratic state and two-thirds of the House is controlled by the Republicans,” said House Minority Leader David J. Toscano (D-Charlottesville). “That only makes sense in terms of lines that are drawn to protect the incumbent Republican majority.” That may not mean much to the justices. The court has shown a high tolerance for partisan gerrymandering aimed at protecting incumbents. But the Constitution forbids gerrymandering that relies too heavily on race, because it harms the political clout of minorities. The lawsuit singled out 12 legislative districts for such criticism. But two of the three judges examining the plan said challengers had failed to prove that race was the predominant factor in drawing 11 of them. Dissenting Judge Barbara Milano Keenan disagreed, saying the state’s leaders applied a “one-size-fits-all racial quota” to the otherwise dissimilar districts. In the congressional case decided last month, the Supreme Court did not reach the question of whether Virginia lawmakers had intentionally packed minority voters in a way that diminished their strength. Instead, the court found that the Republican congressmen challenging the lower court’s decision did not have the legal standing to bring the suit. The legislative redistricting case is _Bethune-Hill v. Virginia Board of Elections._

Virginia GOP congressional members might appeal ruling on redistricting

RICHMOND — Republican members of Congress from Virginia are considering whether to appeal Tuesday’s decision by a panel of judges that declared the state’s congressional maps unconstitutional. The U.S. District Court for the Eastern District of Virginia ruled that the Virginia General Assembly must draw new congressional maps by mid-April because, according to the 102-page opinion, the current maps concentrate African American voters into a single district at the expense of their influence elsewhere. But an appeal would put the brakes on the frenzied political wrangling that has begun as the state’s political class has pondered the partisan implications of new maps. An appeal also would leave open the possibility that the status quo could be maintained. Several of the state’s Republican congressmen held a conference call with their attorneys Wednesday, but they have not made a final decision whether to appeal. Republicans say privately that an appeal is likely because of the importance of the case. “The Republicans need to appeal this case so this will not just be precedent in Virginia but across the country,” said Tom Davis, a Republican who once represented Northern Virginia’s 11th District in Congress. The seven Republican members (there are three Democrats) have about a month to decide whether to file a notice of appeal in federal court. That would trigger a round of briefs to the Supreme Court, which could affirm the lower court’s decision or agree to hear the case, which would set off another round of briefs and oral arguments. Arguments in a similar case from Alabama are set for Nov. 12. The process is more uncertain now than it might have been under former House majority leader Eric Cantor, who had the power and fundraising muscle to dominate the redistricting process and to pay for legal maneuvers. Lawyers have told the state’s Republican congressmen that if they move quickly, the case could be heard at the same time as the Alabama one. The delegation was granted the right to intervene in the case, giving members as a group the right to appeal just like the other defendant, the state Board of Elections, which is represented by the attorney general’s office. Quentin Kidd, a political science professor at Christopher Newport University, said districts for U.S. Rep. Randy J. Forbes and to a lesser extent U.S. Rep. Scott Rigell are most in danger of changing. Some have speculated that Dave Brat, the front-runner in the race for Cantor’s old seat, could also be on the losing end, if only because he has fewer relationships in the House and General Assembly than incumbents. At issue is the number of African American voters in the majority-black 3rd Congressional District, which is represented by U.S. Rep. Robert C. “Bobby” Scott. A federal panel of judges ruled that lawmakers improperly packed voters into Scott’s district to reduce their influence elsewhere. Kidd said a fairly simple fix would entail moving about 45,000 African American voters from Petersburg, Norfolk and Hampton out of Scott’s district and into Forbes’s and perhaps Rigell’s districts. That could give Forbes more competition in his next reelection, however. “But in politics, the simplest thing is often the thing that doesn’t happen,” Kidd said. The Republican-controlled General Assembly and Gov. Terry McAuliffe (D) have an incentive to come up with map upon which both can agree. If they don’t, the courts will take over and could draw up a plan neither party likes. “Obviously, Medicaid expansion is an example of them not being able to do something, but the budget shortfall is an example of them being able to work together,” Kidd said. Tuesday’s decision also will expedite an independent review of the process. Former lieutenant governor Bill Bolling (R) and former representative Rick Boucher (D) said Wednesday that they will add bipartisan redistricting to the agenda for the first meeting of a new Commission to Ensure Integrity and Public Confidence in State Government, created by McAuliffe. They initially didn’t plan to take up the complicated issue until after the General Assembly’s 2015 session. “I think it’s very important that we move away from the partisan redistricting process that tends to produce districts that have a weight majority for one party or another,” Boucher said. Bolling took it one step further and called on McAuliffe, the House of Delegates and the state Senate to create another commission to redraw the maps in a nonpartisan manner. He suggested that each could appoint three members. “The truth is the congressional delegation should have no influence over the process,” Bolling said. “The responsibility for this process rests with the General Assembly. While the congressmen should have input, they should not be allowed to drive this process. It should be up to the General Assembly and the governor.” McAuliffe is in a particularly strong position on the issue because he can veto any maps sent to him by lawmakers. His spokesman, Brian Coy, said the governor’s office is open to proposals on how to make the process more fair. Laura Vozzella contributed to this report.

Maryland redistricting fight officially over

Maryland’s redistricting battles are over. Really. Finally. Over. The state’s high court on Friday upheld a new blueprint for state lawmakers’ districts, the lesser known of two maps that critics challenged unsuccessfully this year in court and at the ballot-box as gerrymandered. Voters on Tuesday overwhelmingly endorsed the state’s congressional map, which carved up surging minority populations in the Washington suburbs to help Democrats unseat Rep. Roscoe P. Bartlett, the state’s senior Republican On Friday, Maryland’s Court of Appeals ruled against several challenges to the map rewriting state lawmakers’ districts – including one lodged by Democratic lawmakers who saw their districts changed significantly. In that case, Sen. James Brochin, a Baltimore County Democrat, argued the new map crafted by Gov. Martin O’Malley’s (D), went too far in protecting representation for the city of Baltimore. The continued population decline in the city, which O’Malley led as mayor, could have reduced the city’s number of senators by one. But O’Malley’s redistricting commission found a way to maintain six seats connected to the city by funneling one district far to the west in Baltimore County. Sen. Delores G. Kelley (D-Baltimore County) lost a significant share of her district’s minority population. Brochin’s district was extended all the way to the Pennsylvania border. The court issued a short order, upholding the map. It said a full opinion would follow. Under the state’s legislative map, several districts around the Washington area would change too. African Americans will become a majority in two Prince George’s County state Senate districts now held by white lawmakers. A combination of Hispanics, Asians and blacks would also make up 50 percent or more of two Montgomery County districts now represented by white state senators. Statewide, the number of African American majority districts will increase from 10 to 12, and majority minority districts would double from two to four. The House of Delegates would also gain the first single-member majority Hispanic district along the border of Montgomery and Prince George’s.

Supreme Court asks Virginia panel to reexamine redistricting decision

The Supreme Court on Monday told a federal judicial panel in Virginia to take another look at its decision that lawmakers improperly packed minority voters into one congressional district. The court sent the case back to the U.S. District Court for the Eastern District of Virginia without comment,following its decision last week in a similar case from Alabama. In the Alabama case, the court ruled 5 to 4 that lower court judges should look more closely at whether lawmakers made race the predominate factor in drawing new district lines after the 2010 census. In Virginia, a three-judge federal district court panel ruled in October that the Virginia General Assembly must draw new congressional maps, because the current plan concentrates African American voters into a single district at the expense of their influence elsewhere. Both the Virginia and Alabama cases hinge on when it’s legal to use race to draw district boundaries. A lawyer for the plaintiffs in the Virginia case, along with several independent experts, said it is unlikely that the federal court in Virginia will make a different ruling this time around. “I wouldn’t expect anything to change,” said Marc Elias, who represented two voters from the district where the redistricting in question took place. Justin Levitt, a professor at Loyola Law School in Los Angeles who runs a blog about redistricting, said nothing in the Supreme Court’s ruling in the Alabama case gives the Virginia court any reason to alter its original ruling. “Alabama strengthened the trial courts’ decision against Virginia,” he said. “Essentially the accusations against Virginia that the trial court found to be true are really, really, really close to the accusations against Alabama.” But Michael A. Carvin, who is representing former House Majority Leader Eric Cantor and Virginia’s Republican congressional delegation in their appeal of the lower court’s decision, drew the opposite conclusion. “We’ve always been confident in our defense and there’s no reason to think differently now,” Carvin said. The Virginia court’s decision focused on the state’s lone black-majority district, the 3rd Congressional District, which stretches from Richmond to Hampton Roads. It is currently represented by Rep. Robert C. “Bobby” Scott, one of three Democrats in the commonwealth’s 11-member congressional delegation. When lawmakers redrew the 3rd district’s boundaries, they increased the percentage of the voting population that was African American from 53 percent to 56 percent. The courts have said that when drawing maps lawmakers can treat voters differently on the basis of race in a few instances, such as complying with the Voting Rights Act, making up for specific past discrimination and achieving diversity in higher education, Levitt said. But he added that the court has said that protecting incumbents or achieving a political goal alone are not good enough reasons. Cases on similar grounds are pending in South Carolina, North Carolina, Texas and Florida. “Administratively, it’s easier to use the blunt calculation of race to peg to certain percentages — but that’s never made it okay,” Levitt said. “And it looks like a bunch of states fell prey to this without considering the facts on the ground that might make it necessary to comply with the Voting Rights Act in order to ensure real political opportunity.” Quentin Kidd, a political science professor at Christopher Newport University, said a do-over on the Virginia case and the associated appeals could mean the state’s congressional districts won’t be redrawn for some time. “I would have a hard time seeing how one federal court in Virginia that had already found the 3rd district to be gerrymandering could look at the Supreme Court ruling in Alabama and not see the Virginia district as gerrymandered,” Kidd said. The Virginia court has yet to layout a timeline for its reconsideration of the case. The Virginia and Alabama cases could also influence judges in a second case brought by Elias in Virginia that challenges 12 Virginia House districts. That case mirrors the Virginia congressional case and the Alabama case, in that plaintiffs argue that lawmakers violated the constitution when they “packed” black voters into several districts and diluted their influence elsewhere. Del. William J. Howell (R-Stafford), the speaker of the Virginia House of Delegates, has said that he is confident the state’s legislative map would withstand legal challenge. He declined comment on Monday’s move by the high court.

Supreme Court takes no action on same-sex marriage cases, for now

The Supreme Court on Thursday accepted new cases about congressional redistricting, judicial candidates asking for campaign donations and religious discrimination. But the justices took no action on requests that they decide whether there is a constitutional right for same-sex couples to marry. The court waded through hundreds of petitions that have accumulated during its summer break, and accepted 11 new cases. Among the pile were petitions from Virginia, Utah, Oklahoma, Indiana and Wisconsin, where federal appeals courts have struck down state bans on same-sex marriages. Both the winners and losers in those cases have asked the court to provide an answer to the question that would apply nationally. There is still plenty of time for the court to take up the question and rule on the issue during the new term that begins Monday and will end next June. Those who study the court and even the lawyers making the requests have said they expect that it could be weeks or months before the justices decide whether to hear the issue, although most think it almost impossible for the court to pass up. If the court accepts the question, it has to then decide which of the cases provides the best vehicle for a decision. So far, all three appeals courts that have ruled on the question have struck down the bans on same-sex marriage. Usually, the Supreme Court waits for a split among those circuits before taking a case. But more than 30 states, on both sides of the issue, have asked the nation’s highest court to resolve the issue The justices could also simply let the appeals court decisions stand, although that is considered unlikely. The Supreme Court has not allowed marriages authorized by those rulings to take place, indicating justices want to have a say in the matter. The court met in private earlier this week to sort through cases that had stacked up this summer. Though it accepted some cases, it won’t be known until next week which of the cases it rejected and which it will reconsider later. Among the cases that got a green light Thursday was one that could decide how candidates running for election as judges may conduct their campaigns. A case from Florida asks whether such candidates may be forbidden from personally asking for campaign contributions. There are 39 states that allow at least some of their judges to be elected, and 30 of them have laws or rules banning contribution requests. The Florida Supreme Court ruled that such laws are justified to protect the reputation of the judiciary as impartial. But candidate Lanell Williams-Yulee, who was reprimanded and fined for signing a fundraising letter, said the ban violates her free-speech rights. The Florida Bar, which brought the action against Williams-Yulee, agreed with her that the Supreme Court should take the case to clarify whether the First Amendment protects candidates against such restrictions. Lower courts across the nation are split on the question. “The federal courts of appeals for the Third and Seventh Circuits and the highest courts of Arkansas, Oregon, and (in this case) Florida have held that such laws do _not_ violate the First Amendment,” states Williams-Yulee’s petition to the court. “By contrast, the federal courts of appeals for the Sixth, Eighth, Ninth, and Eleventh Circuits have held that they _do_.” The case is _Williams-Yulee v. The Florida Bar_. The justices also agreed to consider whether voters can take away from the legislature the right to draw congressional districts. Arizona voters gave the job to an independent commission in 2000 in an attempt to remove politics from the redistricting process. The panel was instructed by voters not to take into account the wishes of incumbents and to draw the state’s districts as compactly as possible. But the legislature objected to the 2012 redistricting, and contends that the Constitution does not give voters the right to exclude elected officials. The Elections Clause holds that “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” But a three-judge panel ruled that voters could give the job to a commission. One of the questions the Supreme Court will consider is whether the legislature has the legal standing to challenge the voters’ decision. The case is _Arizona State Legislature v. Arizona Independent Redistricting Commission_. The justices will also decide whether retailer Abercrombie & Fitch violated anti-discrimination laws when it denied a job to a Muslim applicant because her head scarf conflicted with the company’s dress code. The Equal Employment Opportunity Commission took up the case of Samantha Elauf, who was denied a job at one of the chain’s stores in Tulsa. Elauf, then 17, had worn a head scarf, or hijab, since she was 13. When she interviewed, she scored high enough on the company’s ratings to qualify for a job, and her interviewer said later she understood Elauf wore the hijab for religious reasons. But Elauf was not hired. A judge ruled in her favor. But the U.S. Court of Appeals for the 10th Circuit reversed, saying it was up to Elauf to ask for a religious accommodation, and she had not done so. The case is _Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc._

The Supreme Court has a chance to rein in partisan gerrymandering

POLITICIANS HAVE been manipulating legislative district lines in order to tip electoral results their way for about as long as the Republic has existed. The term “gerrymander” was coined 205 years ago. But the tools and methods have become far more sophisticated, resulting in extremely warped electoral maps that curb the ability of many Americans to obtain meaningful political representation. For decades, the Supreme Court has kept its distance from this issue. But on Monday, the court announced that it will hear a challenge to one of the most egregious examples of partisan mapmaking, raising hopes that, after two centuries, the justices may find their way to setting some limits on this increasingly corrupt practice. Wisconsin’s state legislative map, which the court agreed to consider, is epically unbalanced. “Wisconsin’s Assembly,” the map’s challengers note, “. . . bears no resemblance to its evenly split electorate. In 2012, Republicans won a supermajority of sixty seats (out of ninety-nine) while _losing_ the statewide vote. In 2014 and 2016, Republicans extended their advantage to sixty-three and sixty-four seats, respectively, even though the statewide vote remained nearly tied.” Democrats could gain a majority only with a massive electoral swing far outside historical norms. And if they don’t, Republicans will remain in charge after the next census, again will draw district boundaries in an abusive fashion and so will perpetuate the inequity indefinitely. It is no big leap to conclude that a map in which one party has dramatically more “wasted” votes than another, on purpose — a map designed so that a 55 percent vote for one party results in a remarkably different outcome from a 55 percent vote for another — offends the Constitution’s guarantee of equal protection and possibly free-speech rights, too, given that gerrymandering effectively punishes certain voters for their past political choices. “That is precisely why judicial intervention was necessary here,” the challengers assert, “to correct a serious democratic malfunction that would otherwise have gone unremedied.” If the court were to quash Wisconsin’s legislative map, it would deter future bad behavior by putting statehouses across the country on notice: Don’t go too far in rigging the system. This is far from an easy call. How can judges distinguish between acceptable and excessive politicization? The challengers recommend that courts determine whether voting-map bias is significant, purposeful and has no legitimate justification. The state of Wisconsin argues that this test is still vague, relying on an “unspecified brew” of factors that would give judges far too much flexibility in tossing out lawmakers’ work. “ _One third of all legislatively drawn_ plans would fail” the test, the state reckons. Once involved, the court might trigger a long-running judicial intervention in the workings of the political branches of government. Redistricting, a power assigned to the legislative branch, could effectively become a judicial enterprise. Yet from Maryland and Virginia to North Carolina and beyond, state legislatures controlled by both parties have been disgracefully willing to prioritize incumbent protection over voter rights. The justices may take a long time to rule, and they might well decline to strike down the Wisconsin map. In the meantime, then, the political battle to curb gerrymandering must continue, steeply uphill though it may be. **Read more on this topic:** Tim Cullen and Dale Schultz: We led the Wisconsin Senate. Now we’re fighting gerrymandering in our state. Julian E. Zelizer: The power that gerrymandering has brought to Republicans The Post’s View: Maryland Democrats’ faux redistricting reform Richard L. Hasen: The Supreme Court may just have given voting rights activists a powerful new tool Nancy Soreng and Jennifer Bevan-Dangel: Maryland shouldn’t wait for other states to start redistricting

Court declares Virginia’s congressional map unconstitutional

A panel of federal judges on Tuesday declared Virginia’s congressional maps unconstitutional because they concentrate African American voters into a single district at the expense of their influence elsewhere. The decision, handed down in the U.S. District Court for the Eastern District of Virginia, orders the Virginia General Assembly to draw up new congressional maps by April — potentially launching a frenzied and highly political battle for survival within Virginia’s congressional delegation. The order delivered another victory for Democratic plaintiffs hoping to break up black-majority districts, which they say have been drawn by Republicans who have used the Voting Rights Act to dilute the influence of minority voters. A similar case in Alabama in which Republicans prevailed will be heard by the Supreme Court this term. “We’re obviously thrilled with the results,” said Marc Elias, a lawyer on the Virginia case who represented two voters from the district where the unconstitutional redistricting took place. “The Republicans engaged in impermissible racial gerrymandering in a cynical effort to gain seats. . . . We look forward to the state doing a new redistricting to comply with the court’s orders.” Elias said that if Virginia does not appeal, its leaders will have to go “back to the drawing board” to draw their electoral boundaries. Judge Robert E. Payne wrote in a dissenting option that incumbent protection — rather than race — motivated the redistricting, a practice which is legal. The case can be appealed directly to the Supreme Court, an unusual legal quirk of the matter because it was decided by a three-judge panel, but whether that will happen remains unclear. Michael Kelly, a spokesman for Attorney General Mark R. Herring (D), said state lawyers were “reviewing the decision and assessing its impact and how best to move forward.” The attorney general’s office, in consultation with the Department of Elections, will decide whether to appeal, he said. The court’s decision allows the current maps to remain in place for next month’s elections, and it focuses on the state’s lone black-majority district, the 3rd Congressional District, which stretches from Richmond to Hampton Roads and is now represented by Robert C. “Bobby” Scott (D). But there was broad agreement Tuesday that, if the decision is not appealed, its impact could ripple across several districts in the state. Dave Wasserman of the Cook Political Report tweeted this on Tuesday: “Depending on how VA’s map is redrawn for 2016, the big loser here could be #VA04 Rep. Randy Forbes (R).” Republican reaction to the ruling was muted; a spokesman for Virginia House Speaker William J. Howell (Stafford) declined to comment. But privately, some members of the GOP conceded that the redrawn map would probably make at least one and possibly several heavily GOP districts competitive for Democrats. If the state doesn’t appeal, the General Assembly would address the process when it reconvenes in January. “There clearly would be at least a fourth district in Virginia where the Democrats would be more competitive than they are now,” said Bob Holsworth, a former Virginia Commonwealth University political scientist. A legislative session that revolves around redistricting would likely heighten partisan rancor in the Capitol, where a bitter deadlock over Medicaid expansion between Republican lawmakers and Gov. Terry McAuliffe (D) threatened to trigger a government shutdown last summer. “It’s pretty clear that the Republicans in the legislature and the governor are not on the best of terms these days, so the opportunity to redraw lines may be yet another example of the fact that gridlock rules the roost in Richmond,” said Stephen J. Farnsworth, director of the Center for Leadership and Media Studies at the University of Mary Washington. Yet Republicans and Democrats would be taking a big risk if they did not find a way to come to an agreement. If the GOP-   controlled legislature did not pass a plan that McAuliffe would be willing to sign, more uncertainty could ensue: A veto from McAuliffe would send the map to the courts for the judges to redraw. McAuliffe said in a statement, “Today’s ruling demonstrates the need to get partisan politics out of how Virginia draws its legislative boundaries.” Earlier this year, the Supreme Court agreed to hear a similar challenge to Alabama’s legislative reapportionment plan. In that case, the challengers said Republicans altered districts that were already drawn to give minority voters significant influence to include even more black voters, raising the proportions in at least one district to more than 70 percent. Both cases came on the heels of a 2013 Supreme Court decision invalidating a key provision of the Voting Rights Act that required some states with a history of discrimination to not draw districts in such a way that created a “retrogression” in minorities’ ability to elect their preferred candidates. That generally meant not breaking up majority-black districts. Although the Voting Rights Act was meant in part to ensure elected representation for minorities, Democrats have argued in recent years that Republicans have used the act and its provisions to justify diminishing black — and Democratic — influence outside of the majority-minority districts. Such arguments have sometimes created tensions between minority groups and the Democrats they most often favor. Black incumbents especially want to make sure that districts remain safe for reelection, while other Democrats want minority voters more dispersed to increase the party’s chances of winning more races. Scott, who is running unopposed this fall, issued a statement noting that he was not involved in the suit but that he backed another map during redistricting in 2011. He first won election in 1992, after Virginia, under a directive from the Justice Department, created the majority-black district. “I was a strong proponent of the redistricting plan sponsored by State Sen. Mamie Locke, which made all congressional districts in the Commonwealth more compact and contiguous,” Scott said. “I hope and expect the General Assembly will more equitably and appropriately balance the influence of all Virginia’s voters, as mandated by this decision, when they redraw the third congressional district and adjacent congressional districts next session.” The judges who decided the Virginia case mentioned the Supreme Court decision on the Voting Rights Act in their opinion, but legal experts said it was largely irrelevant to what they ultimately found: that the state’s recent redistricting map was unconstitutional because race was the predominant factor in drawing the boundaries of the 3rd District. Under the map, which was drawn in 2012, the district went from a voting-age population that was 53.1 percent African American to one that was 56.3 percent African American. “In today’s case, the challenger said, ‘you’ve violated this rule against unconstitutional racial gerrymanders, because . . . you’ve packed in these African American voters into this 3rd Congressional District, and you didn’t have a good reason to do so,’” said Richard Hasen, a University of California at Irvine law professor who specializes in election law. Jon Greenbaum, the chief counsel for the Lawyers’ Committee for Civil Rights Under Law, said the judges looked in particular at how the map split cities and shaped the 3rd District, making it an “outlier” compared with others. He said the state will probably maintain an African American majority in the district if it is redrawn — as another portion of the Voting Rights Act indicates it should — but that majority will not be as sizable. “What we would hope Virginia would do would be to create a plan that maintained the district as a black-voting-age-majority district and cured the fault of this plan,” he said.

Federal judges bring Va. one step closer to a new congressional map

RICHMOND — A panel of federal judges issued a ruling Friday that Virginia lawmakers illegally concentrated African American voters into one congressional district to reduce their influence elsewhere, bringing the state a step closer to being forced to redraw its election map. The U.S. District Court for the Eastern District of Virginia affirmed its earlier decision and ordered the Virginia House of Delegates to redraw the state’s 11-district congressional map by Sept. 1. The costly and time-consuming process would force the General Assembly back to Richmond for a special session this summer. But an appeal from the state’s congressional Republicans could derail that timetable. Attorney Michael A. Carvin, who represented Virginia’s Republican congressional delegation in their appeal of the court’s decision, said another appeal is likely. ****“There’s a good chance that we will,” he said. “It was wrong for the same reason the original decision was wrong.” Democrats and advocates for reducing the influence of politics on redistricting applauded Friday’s decision. And they could benefit politically: Diluting the African American makeup of the state’s black-majority district would make adjacent districts less Republican and potentially vulnerable to Democratic challenge. The suit was brought by Marc E. Elias of the law firm Perkins Coie and funded by the National Democratic Redistricting Trust. “I’m happy that the federal court, for the second time, has found that the Republican legislative map was an unconstitutional racial gerrymander,” Elias said. “I look forward to the state of Virginia enacting a constitutional map by the September 1st deadline that the court provided.” House of Delegates Speaker William J. Howell (R-Stafford) said he supports letting the case play out fully in court. “The House of Delegates fully intends to exercise its legal right to attempt to remedy any flaw ultimately found by the courts with respect to the current congressional districts,” he said. “However, we maintain that the defendants should have the opportunity to fully litigate this case.” Because of the special nature of redistricting challenges, appeals from three-judge panels go directly to the U.S. Supreme Court. The justices are required to summarily affirm or reverse the decision or accept the case for full briefing and argument. The case could foreshadow the court’s decision in a separate but very similar case — also brought by Elias — that calls into question the constitutionality of a dozen Virginia House of Delegates districts on similar grounds. That case has yet to go to trial. The stakes are high for Howell in the legislative case because his Republican supermajority helped craft and ultimately approved the maps. He also petitioned to be part of the case to defend them. Republicans hold eight of the state’s 11 congressional seats — a lopsided reality that stands in contrast to the fact that the GOP has not won a statewide election in Virginia since 2009. Democrats regularly point to that statistic as evidence of the gerrymandering of district boundaries. In October, the same federal court ruled similarly — that the General Assembly must redraw the congressional maps because the current plan “packs” African American voters into Democrat Robert C. Scott’s 3rd Congressional District at the expense of their influence elsewhere. While an appeal from the congressional delegation played out in that case, the Supreme Court in March made a high-profile ruling in an Alabama case, requiring lower courts to look more closely at whether lawmakers make race the predominant factor in drawing new district lines after the 2010 census. Around the same time, the high court ordered the lower court in the Virginia case to reconsider its decision to uphold district maps — which it did on Friday. The Virginia and Alabama cases hinge on when it is legal to use race to draw district boundaries. Del. Charniele L. Herring (D-Alexandria), chairwoman of the House Democratic Caucus, said she was not surprised by Friday’s ruling. “We need to redraw the map. It’s important that the voters choose their representatives and not the other way around,” she said. Redistricting is regularly blamed for the partisanship that often defines the legislative process. In this year’s General Assembly session, proponents of nonpartisan redistricting pushed to remove politics from the process with a raft of bills but none passed. Advocates of restructuring argue that under the current system, districts are drawn to protect incumbents. As a result, they tend to include populations that lean heavily toward one party over the other — attracting candidates who appeal to the extremes of their parties at the expense of bipartisanship and moderation. Brian Cannon, executive director of OneVirginia2021, which pushes for nonpartisan redistricting, said: “This just proves the General Assembly can’t handle the responsibility of doing this without some kind of reform.”

Republican redistricting is taking a beating in the courts (again)

This year, federal courts have been litigating a steady stream of gerrymandering claims. And most of the electoral maps the courts have knocked down were drawn by Republicans. That’s good news for Democrats: They have an opportunity in several states to draw more favorable congressional and state legislative maps ahead of 2018 elections. And every seat counts, given the 2020 Census is right around the corner, which brings with it the opportunity in many states to draw new district maps.  What’s more, some gerrymandering experts think the court ruled against North Carolina Republicans in a way that opens the door for Democrats to potentially challenge almost all mapmaking in the South. Here’s a rundown of the redistricting landscape — and how it could affect our elections.  The Supreme Court ruled Monday that North Carolina’s GOP-controlled legislature illegally looked at people’s race when drawing two majority-black congressional districts in the state. Lawmakers argued they were only looking at drawing lines based on people’s party affiliation, but the court ruled that it is reasonable to assume that, in a state like North Carolina, party affiliation and race are pretty much synonymous. The way the court arrived at its decision is a big deal, said Doug Johnson, a redistricting expert with Claremont McKenna College. “It’s the first time the court has used party as a proxy for race,” he said. “It opens the door to throwing out partisan gerrymandering as well.” Other gerrymandering experts disagree that this decision has any implications for partisan gerrymandering. "This is a traditional case about racial gerrymandering, pure and simple," said Rick Pildes, an expert on redistricting law at New York University. North Carolina Republicans held their 10 to 3 lock on congressional districts. But the court could now have a different way of reviewing yet another upcoming case in North Carolina, where legislators explicitly said they were drawing lines based on politics, and in Maryland, the lone pending gerrymandering case where Democrats drew the map.  When the justices looked at Virginia’s state legislative maps in March, the Supreme Court didn’t say whether they thought the state’s GOP-controlled legislature had illegally drawn districts to group together African American voters (and dilute their impact across the state).  Virginia state elections are in the fall, and all 100 state House seats are up. It’s unclear whether the legal challenges will finish in time to require the redrawing of maps. But Virginia also brings with it a reminder that map changes do have consequences: In November, Democrats picked up a seat here after the 4th Congressional District was redrawn for — you guessed it — being illegally gerrymandered.  A federal court decided that Texas’s legislature intentionally tried to disenfranchise minority voters when it drew its congressional districts in 2011.   Two strikes could force Texas back under the supervision of federal officials, who would review any election changes Texas wants to make. A 2013 Supreme Court ruling invalidating a key part of the Voting Rights Act freed Texas and other Southern states from federal oversight.    Partisan. That's the key. This marks the first time in a decade that a court has thrown out legislative maps because they favored voters of one party over another. And therefore, this will be the first time in a decade that lawmakers will have to redraw maps specifically to make them more fair for both parties (not just to consider race). The shake-up is so profound that the legislature will probably have to redraw the state Senate districts as well. Wisconsin’s attorney general, a Republican, has appealed to the Supreme Court. If they take up the case, it could be monumental: The Supreme Court has never been clear on what, exactly, constitutes illegal partisan gerrymandering, so a ruling on Wisconsin could set precedent for years to come.

Supreme Court rules race improperly dominated N.C. redistricting efforts

The Supreme Court ruled Monday that North Carolina’s Republican-controlled legislature relied on racial gerrymandering when drawing the state’s congressional districts, a decision that could make it easier to challenge other state redistricting plans. The decision continued a trend at the court, where justices have found that racial considerations improperly tainted redistricting decisions by GOP-led legislatures in Virginia, Alabama and North Carolina. Some cases involved congressional districts, others legislative districts. The states contended that their efforts were partisan moves to protect their majorities, which the Supreme Court in the past has allowed, rather than attempts to diminish the impact of minority voters, which are forbidden. But the justices declared that North Carolina had relied too heavily on race in its efforts to “reshuffle,” in the words of Justice Elena Kagan, voters in two congressional districts. They were unanimous in rejecting one of the districts and split 5 to 3 on the other. “This is a watershed moment in the fight to end racial gerrymandering,” said former attorney general Eric H. Holder Jr., who is part of a Democratic effort focused on redistricting. “North Carolina’s maps were among the worst racial gerrymanders in the nation. Today’s ruling sends a stark message to legislatures and governors around the country: Racial gerrymandering is illegal and will be struck down in a court of law.” North Carolina leaders said the court had made the rules regarding redistricting even murkier. Lawmakers are required to consider race when drawing legislative lines so that minorities have a chance to elect candidates of their choice when the numbers are there. But the court has said racial considerations cannot predominate when drawing the districts. “We have the utmost respect for the Supreme Court, but it is challenging for our lawmakers to draw congressional districts that the courts will accept when the courts regularly change the rules state legislatures must follow when drawing them,” said Amy Auth, a spokeswoman for North Carolina Senate Leader Phil Berger. Kagan, writing for the court’s majority, criticized lawmakers for increasing the share of black voters in the two districts to more than 50 percent, when experience had shown that was not necessary in order for minority voters to elect representatives of their choice. The Voting Rights Act does not require that, she said, and the real goal might have been to make surrounding districts safer for white candidates. Justices will not “approve a racial gerrymander whose necessity is supported by no evidence and whose _raison d’être_ is a legal mistake,” Kagan wrote. That is one of the most important parts of the decision, said Richard Pildes, an election law expert at New York University. The ruling “opened up a new avenue of constraint by holding that if white voters now vote for candidates black voters prefer at high enough rates, the intentional creation of majority-black districts is no longer required — and indeed, is unconstitutional,” Pildes wrote in an analysis of the decision. Redistricting is part of a bare-knuckled fight in North Carolina, where Democrats and Republicans uneasily share political power. Last week, the Supreme Court said it would not review a lower court’s ruling that a sweeping 2013 rewrite of the state’s voting laws was an unconstitutional attempt to diminish the power of African American voters. The state’s Republican legislative leadership had asked the Supreme Court to get involved, but the Democratic governor and attorney general said they did not want to defend the law. In the case involving the congressional districts, a lower court had found them improperly drawn, and in 2016, elections were held in redrawn districts. Republicans maintained control of 10 of 13 districts. The partisan battle over redistricting has raged in North Carolina for decades; Kagan noted that one of the districts in question was “making its fifth(!) appearance before this Court.” The justices unanimously agreed that District 1, anchored in the northeastern part of the state and stretching into the black neighborhoods of Durham, was improperly drawn. But the court split on District 12, which Kagan described as a “snakelike” district in the south-central section of the state that includes part of Charlotte. In an unusual alliance, conservative Justice Clarence Thomas joined Kagan and the court’s other liberals — Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor — in saying the Voting Rights Act did not justify lawmakers’ actions. Kagan noted that lawmakers redrew District 12 so that it had 35,000 more blacks of voting age and 50,000 fewer whites. She said the state’s contention that it was simply adding Democrats was contradicted by testimony that only 18 percent of the region’s white Democrats ended up in the district, while 65 percent of black Democrats did. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr. objected. Alito wrote that “District 12’s borders and racial composition are readily explained by political considerations and the effects of the legislature’s political strategy.” Alito complained that in a previous decision, the court insisted that those challenging districts present alternative maps showing that the legislature could achieve its political goals without “the racial effects giving rise to the racial gerrymandering allegation.” The majority relieved the challengers of providing such a map in this case, he said. “A precedent of this Court should not be treated like a disposable household item — say, a paper plate or napkin — to be used once and then tossed in the trash,” Alito wrote. Kagan, in return, said Alito and the dissenters accepted the word of the North Carolina legislature rather than the three-judge panel that heard evidence in the case and found the congressional districts unacceptable. The case is _Cooper v. Harris_. It was argued before Justice Neil M. Gorsuch joined the court, and he took no part in the decision.

High court hears arguments in two redistricting cases

Justice Anthony M. Kennedy seemed to hold the key in two redistricting cases Monday where the justices were considering whether Republicans had unconstitutionally packed minority voters together to limit their influence. His comments should cause concern for Virginia lawmakers, who lost at the court last term for the way they drew congressional districts and this time were defending a dozen legislative seats from challenges by African American voters. _[Supreme Court leaves in place decision on Virginia gerrymandering]_ “I have problems” with the way the lower court analyzed and approved the districts, Kennedy told Paul D. Clement, the lawyer representing Virginia. In both cases argued Monday — the other involves two congressional districts in North Carolina — the court was considering whether race played too large a role in drawing districts. States and municipalities say they face pressure under the Voting Rights Act to draw districts that give minorities a shot at electing the candidates of their choice. But the Supreme Court for decades has held that race cannot be the predominant factor in drawing electoral lines. That can be a difficult balance to find, and Justice Samuel A. Alito Jr. complained that the issue was “very, very complicated” and that any decision by the state seems to serve only as “an invitation for litigation.” At issue in Virginia are 12 House districts in Richmond, the Hampton Roads area and along the state’s southern border. All were held by African American representatives. Republicans who drew the new map after the 2010 Census said their goal was to preserve those incumbents. To do that, Republicans said each of the districts would have a black voting age population of 55 percent. But African Americans and Democrats complained that the real intent was to pack black voters into those districts so the surrounding districts would be more winnable for Republicans. A panel of three federal judges upheld the districts last year. But Marc E. Elias, the lawyer representing the challengers, said that the judges were wrong to rule that race did not play the predominant role in drawing lines. “Virginia applied this 55 percent rule to move voters in and move voters out of districts on the basis of race, regardless of the differences in voting patterns, geography, demographics or the actual interests of black voters in each of those districts,” he said. Chief Justice John G. Roberts Jr. said it was difficult for the court to discern what motivation was the dominant one when lawmakers were drawing the map. And partisan gerrymandering, as opposed to racial decisions, is allowed under the court’s current jurisprudence. But Justice Elena Kagan suggested that there must be a more detailed approach than the one Virginia employed. “It sort of defies belief you could pick a number and say that applies with respect to every majority-minority district,” she said. But Clement said the number was not picked “from thin air.” Some of the majority-minority districts that the state wanted to protect already had black voting age populations larger than that. “The 2011 redistricting of the Virginia House of Delegates was a bipartisan success story,” Clement said, noting that the changes were endorsed by the legislature’s black caucus. Even though Virginia has elected two Democrats to the U.S. Senate and voted for the Democratic presidential candidate in the past three elections, it is much more divided at the state level. Republicans hold 66 seats in the 100-member House. As the result of the congressional map approved by the court last term, the commonwealth elected a second African American congressman. Republicans will hold seven of 11 seats. In the North Carolina case, a lower court had rejected how the state legislature drew two congressional districts. The arguments were similar to those in the Virginia case — and the lawyers were identical. Clement said those arguing that the drawing of one district was racially motivated, rather than partisan, should be required to produce an alternative map. But Kagan questioned that, and Elias agreed that there “are all manner of ways to prove that race predominated.” A separate three-judge panel has struck down some of North Carolina’s legislative districts and said there must be new elections in 2017. That decision is probably headed to the Supreme Court as well. Justice Stephen G. Breyer noted that he had written several of the court’s rulings on reapportionment and had tried in a 2015 decision to give guidance to lower courts that would alleviate the need for the justices to step in so frequently. “It certainly doesn’t seem to have done” that, Breyer said. The cases are _Bethune-Hill v. Virginia State Board of Elections_ and _McCrory v. Harris_.

Va. Republicans want Supreme Court to put new congressional map on hold

Republican lawmakers in Virginia want Supreme Court Chief Justice John G. Roberts Jr. to stop a new congressional map from taking effect until after the 2016 elections. The Supreme Court is planning to review a federal panel’s ruling that the state’s congressional map, drawn by a Republican legislature, illegally packed black voters into the district of Rep. Robert C. Scott (D) to dilute their overall influence. The map approved by that panel would move some of Scott’s reliably Democratic voters into Rep. J. Randy Forbes’s district, making it harder for the Republican to win reelection. It also shifts voters in three other districts. The ruling immediately moves more than 1 million people in parts of central and southeastern Virginia. On Tuesday, the Republicans involved in the lawsuit asked the high court not let that happen before the justices rule. Should the Supreme Court find that the previous map was constitutional, they wrote, the result would be “electoral chaos, mass voter confusion, an immense waste of taxpayer and private resources,” and possibly a postponement of the election itself. If the ruling comes after the June 14 primaries, they added, the damage would be even worse — new primaries would have to be scheduled. “No matter how one handicaps the likelihood of reversal, it is far too high to expose the Commonwealth,” the Republicans wrote. The possibility of a reversal also forces candidates to campaign and collect signatures in both potential districts, they noted. The three-judge panel of the U.S. District Court of the Eastern District of Virginia previously ordered the General Assembly to redraw the congressional map, but after a special session ended with no action, Gov. Terry McAuliffe (D) asked the judges to take over. One judge on the three-person panel broke from his colleagues in the 2014 ruling, saying that a remedial map was “neither required, nor permitted.” The map the panel chose most profoundly affects Forbes, putting the heavily black cities of Petersburg and Richmond in his territory. His district follows a diagonal path between Chesapeake and western suburbs of Richmond. But Rep. Dave Brat (R), who unseated Eric Cantor, then the House majority leader, in a 2014 primary, would also lose some of his most conservative supporters in a district just north of Scott’s and Forbes’s. Brat faces a primary challenge from a more moderate Republican, Henrico County Sheriff Mike Wade. Reps. Scott Rigell and Robert J. Wittman, both Republicans, get slightly more friendly seats as all of Newport News moves into Scott’s district. Of Virginia’s 11 representatives, eight are Republicans and three are Democrats. Under the map ruled unconstitutional, which was drawn in 2012, Scott’s district went from a voting-age population that was 53.1 percent African American to one that was 56.3 percent African American. Under the new map, that proportion drops to 45.3 percent while the black voting-age population in Forbes’s district rises from 31.3 percent to 40.9 percent. Forbes said in a statement that he was “confident that the Supreme Court will conclude that the overreach . . . is not appropriate.” The challenge to Virginia’s congressional district map and similar ones around the country were brought by attorney Marc E. Elias and funded by the National Democratic Redistricting Trust. Elias is general counsel to Hillary Clinton’s presidential campaign and worked for McAuliffe’s campaign. Elias could not be reached Wednesday for comment.

Supreme Court must step in on gerrymandering

In his June 22 op-ed, “Just how partisan is too partisan?,” Charles Lane asked, “can there be a partisan gerrymander with no gerrymandering?” Unfortunately, that’s the wrong question. With today’s mapping abilities, partisans can draw districts that look nice to the naked eye but really are drawn to serve only partisan interests. University of Michigan political scientist Jowei Chen recently conducted 200 random simulations of mapping plans for Wisconsin. Not one was even half as skewed for partisan purposes as the one Wisconsin lawmakers enacted into law. What’s more, Mr. Chen found that “the enacted plan achieved this partisan outcome at the expense of traditional districting principles, splitting apart far more counties and municipalities than were necessary.” With our elected representatives gaming the system more than ever, citizens’ fundamental right to have their votes count in a meaningful way is undermined. That’s exactly why the Supreme Court must step in and set outward bounds on how much citizens’ power can be diminished in the service of politicians’ desire to hold on to power. By setting such limits, the court would encourage restraint in our elected legislatures and bring us closer to a government of, by and for the people. ****Gerry Hebert** , Washington** The writer directs the voting rights and redistricting program at the nonpartisan election law organization Campaign Legal Center, which is representing the plaintiffs in the Wisconsin gerrymandering case.

Alabama minority redistricting case seems to divide Supreme Court

The Supreme Court seemed divided Wednesday over and perhaps even stumped by a request that Alabama redo its state legislative redistricting plan that challengers said was drawn with too much emphasis on the race of voters. The challenge was brought by black officeholders and Democrats who argued that the state’s Republican leadership packed minority voters into districts that allowed the election of African American officials but reduced their influence elsewhere. The court’s jurisprudence on when race can be used in drawing legislative districts, however, is complex and at times contradictory. And more than one justice pointed out during oral arguments that minority voters used to come to the court to demand that legislatures specifically use race in order to ensure that blacks and Hispanics be represented in government. Justice Antonin Scalia told Richard Pildes, an attorney representing the Alabama Democratic Caucus, that he was making the same argument “the other side used to be making” when the demand then was for districts that could be won by minorities. And Chief Justice John G. Roberts Jr. said states faced conflicting demands from Congress to make sure that minorities were represented and from constitutional protections against government treating people differently because of race. Roberts said he sympathized with states trying to find the “sweet spot” between too much consideration of race and too little. Alabama contends that its redistricting plans were guided by a goal of making districts as similar to each other in size as possible to comply with commands of “one person, one vote.” And it says its plan also complies with demands of the Voting Rights Act that states create majority-minority districts when possible to allow minorities to elect representatives of their choice. Alabama Solicitor General Andrew L. Brasher noted that about 25 percent of the state’s population is black, as is the percentage of blacks in the Alabama legislature. A federal judicial panel ruled 2 to 1 to approve the plan. But the court’s liberals indicated they think that the state relied too heavily on race in drawing the districts, which would cause constitutional problems. Justice Elena Kagan said the state was under the “mistaken understanding” that it had to keep the percentages in the majority-minority districts unchanged. She said it was clear that the state was looking only at race when it split voting precincts in drawing the new districts. The question could come down to whether Alabama had partisan gerrymandering goals in mind — the court has allowed that — rather than racial gerrymandering. And that is complicated when, as in Alabama, racial and political identities are closely linked. The question of whether Alabama Republicans were passing a plan only to protect their own — as ruling Democrats had done 10 years earlier — was most important to Justice Anthony M. Kennedy. Even if the court sends the redistricting plan back, it was unclear what would change. Brasher said redistricting plans favored by the black challengers were similar to the ones the state legislature passed. The combined cases are _Alabama Legislative Black Caucus v. Alabama_ and _Alabama Democratic Conference v. Alabama._

Md. congressional districts violate First Amendment, lawsuit says

Maryland’s infamously contorted congressional district map was challenged in federal court on Tuesday by an American University law student who says the boundaries violate the First Amendment rights of Republican voters. The suit was thrown out by a federal judge in 2014, a decision upheld by the U.S. Court of Appeals for the 4th Circuit. But the Supreme Court ruled in December that plaintiff Stephen Shapiro was improperly denied a hearing before a three-judge panel. He got his day in court in Baltimore on Tuesday, along with plaintiffs in two other lawsuits challenging Maryland’s 2011 redistricting. Shapiro questions the legality of gerrymandered boundaries approved by Democratic state lawmakers to ensure that seven of Maryland’s eight congressional seats would be under their party’s control. A specific priority, the suit alleges, was the reconfiguring of western Maryland’s 6th District to oust 10-term Rep. Roscoe G. Bartlett (R), who lost his seat the next year to John Delaney (D). State attorneys have filed a motion to again dismiss Shapiro’s case. But should two of the three judges buy into Shapiro’s argument, Maryland’s political map could soon be back before the Supreme Court. Unlike racial gerrymandering, which is barred by the Voting Rights Act, partisan gerrymandering has not been definitively addressed by the nation’s highest court. In the 2004 case _Vieth v. Jubelirer_ , Justice Antonin Scalia, writing for the majority, concluded that it was impossible to come up with a sensible test to decide when lawmakers had gone too far in manipulating boundaries for partisan advantage. But in a concurring opinion, Justice Anthony M. Kennedy suggested that the First Amendment could be the basis for a challenge if plaintiffs could prove that redistricting created “disfavored treatment” of groups based on their voting preferences. Shapiro and his attorney, Michael Kimberly, are attempting to slip through the door Kennedy left ajar. They assert that the map drawn by Democratic lawmakers violated the rights of Republican voters to political association and expression by expressly targeting 6th District voters, who had long expressed their preference for Republican candidates. Kimberly said the sheer scale of the redistricting — swapping an estimated 360,000 residents from the heavily Republican 6th District for a similar number of voters from the deep-blue 8th District, centered in Montgomery County — made it all but inevitable that Democrats would win both seats. “The results were crushingly effective,” Kimberly said in his written argument to the panel. In the 6th District, Bartlett’s share of the vote plummeted from 61 percent in 2010 to 38 percent in 2012. Shapiro and Kimberly are seeking an injunction barring Maryland from using the map. Maryland Assistant Attorney General Jennifer L. Katz defended the district boundaries, arguing that the redrawn map posed no such harm to Maryland residents, who are able to vote, campaign and express their opinions as they please. Katz said that party preference can take unexpected turns from election to election. She noted that Gov. Larry Hogan, a Republican, recently announced that he would not vote for his party’s presumptive presidential nominee, Donald Trump. She also pointed out that in 2014, Delaney nearly lost his 6th District seat to Republican Dan Bongino. But Kimberly and Shapiro had a highly sympathetic ear in one member of the judicial panel: 4th Circuit Judge Paul V. Niemeyer. He wrote in a 2011 opinion that Maryland’s 3rd Congressional District, which takes in parts of Montgomery, Howard and Baltimore counties and Baltimore City, resembled a “broken-winged pterodactyl, lying prostrate across the center of the state.” Niemeyer peppered Katz with questions and corrections during her oral argument. He branded as “too simplistic” her contention that the only damage to 6th District Republicans is that they are no longer certain to elect the candidate of their choice. Niemeyer said the scope of the population shift between the 6th and 8th districts had only one objective: to dilute the impact of Republican voters. “It’s hard not to say that’s what was going on,” he said. The two other justices on the panel were U.S. district judges James K. Bredar — who originally dismissed Shapiro’s suit — and George L. Russell III. The other two lawsuits, also given another turn at the wheel because of the Supreme Court’s December decision, challenged the Maryland map from different directions. Judicial Watch, a conservative legal foundation, argued that the state’s “egregious” gerrymandering could be stopped by ensuring that all congressional districts are physically compact without regard to partisan makeup. Attorney Robert Popper proposed a mathematical formula he developed with law professor Daniel D. Polsby to form more compact districts. Maryland Assistant Attorney General Jeffrey L. Darsie, arguing to dismiss the case, said it was not realistic to expect that district boundaries could be drawn without some underlying political strategy. “As long as legislators are responsible for drawing districts . . . the decisions will inevitably and unavoidably include political calculations,” Darsie said. The third suit was brought by Christopher Eric Bouchat, a Carroll County resident who contends that the division of his state legislative district across county lines violates his constitutional rights. Bouchat brought an earlier version of the suit in 2012 that was thrown out by the Maryland Court of Appeals. This time Bouchat cited his unsuccessful 2014 Republican primary race for the House of Delegates in District 9A, which includes mostly Howard County residents and only a small portion of Carroll voters. He said the boundaries effectively disenfranchise Carroll voters.

In Md. and Va., efforts to end gerrymandering face major obstacles: Lawmakers

In deep-blue Maryland, Democratic state lawmakers have shown little interest in giving up their power to redraw the boundaries of congressional districts every 10 years. The Republicans who control the legislature in Virginia are similarly unwilling. But with both states’ congressional maps under attack for unfairly favoring the majority party, a few lawmakers have come up with a new suggestion: Why don’t we give up our power together, negating the political effects? “The only way to get through this now is for everybody to give up a little bit in a partisan sense for everyone to gain a lot in terms of principle,” said Maryland state Sen. Jamie B. Raskin. The Montgomery County Democrat is calling for a “Potomac compact” in which a single, independent panel would draw congressional lines for both states. State Sen. Paul G. Pinsky (D-Prince George’s) has proposed turning control over to a commission made up of legislative appointees — provided that a comparable red state does the same. And Del. Kirill Reznik, also a Democrat representing Montgomery, is calling for technical experts to redraw Maryland’s maps — considered some of the most gerrymandered in the country — but only if Virginia and Republican-leaning Pennsylvania follow suit. “The political establishment here, especially in the legislature, does not feel it would be fair to unilaterally disarm,” Reznik said. “If we are going to fix it, it cannot just be Democrats saying, ‘We will be the nice guys.’ ” So far, at least, these creative approaches seem no more likely to succeed than Republican Gov. Larry Hogan’s proposal — made earlier this year — for a constitutional amendment to turn redistricting power in Maryland over to an independent panel. Although that idea was supported by 75 percent of Marylanders in a recent Goucher College poll, Democratic lawmakers assailed Hogan’s plan as poorly written and said it was developed without the perspective of minority communities. Neither it nor the other proposals generated much discussion or interest at legislative hearings this month. Proposals for an independent redistricting commission have also gone nowhere in Virginia, even though that state’s districts are under legal challenge in a case that will be heard by the U.S. Supreme Court this month. The idea of independent commissions “seems like an intellectually compelling argument,” said Michael Li, who follows redistricting reform efforts for the Brennan Center for Justice. “But politics isn’t always about intellectual compellingness.” Critics of allowing state legislatures to control redistricting say lawmakers of both parties tend to abuse their power, resetting boundaries in ways that protect incumbents and dilute the opposition. One of the most egregious examples is Maryland’s 3rd Congressional District, which one judge likened to a “broken-winged pterodactyl” because of how it stretches across narrow parts of four counties. Democrats hold seven of Maryland’s eight congressional seats, even though registered Democrats outnumber registered Republicans in the state by a far-smaller ratio of 2 to 1. In Virginia, where there is no party registration but Democrats have prevailed in recent years in statewide races, Republicans hold eight of 11 congressional seats. Brian Cannon, executive director of the advocacy group One Virginia 2021, said redistricting reform is “not a Republican or Democratic issue. It’s just a power issue and whether you’re going to let politicians continue to abuse their power.” Six states use independent redistricting commissions, and at least 11 state legislatures rely on advisory panels to help draw districts or resolve disputes. In Iowa, legislative staff members draw congressional maps based on geography and population, without data on party registration. In California and Arizona, residents successfully launched ballot initiatives to overhaul redistricting powers. But that option is unavailable in Maryland and Virginia. Across the country, Republicans in general have viewed independent commissions with suspicion, in part because their implementation led to an increase in the number of Democrats elected in California and Arizona, said Nick Goedert, a visiting professor at Lafayette College in Easton, Pa., who has studied redistricting and is joining the faculty of Virginia Tech this summer. Walter Olson, a Cato Institute fellow and co-chairman of Hogan’s redistricting task force, said the proposals for interstate agreements “can easily become an excuse for not acting at all.” The longtime Democratic leaders of the Maryland General Assembly have said national reform should come from Congress, where Republicans retain power — in part because of partisan redistricting — or from the Supreme Court. But House Speaker Michael E. Busch (D-Anne Arundel) and Senate President Thomas V. Mike Miller Jr. (D-Calvert) indicated that they would be open to adopting an independent redistricting commission if GOP-controlled states do so, as well. Alexandra Hughes, Busch’s chief of staff, said the speaker plans to contact legislators in Virginia and Pennsylvania to determine their interest. Hogan’s office had little patience for the initiatives aimed at compromise. “It’s preposterous on its face that we have to wait for Virginia,” said Douglass Mayer, a spokesman for the governor. “Maryland shouldn’t wait to act for others to do what’s right.”

Supreme Court rejects GOP petition to block new Virginia congressional lines

RICHMOND — The U.S. Supreme Court on Monday denied a request from Republican members of Congress to put on hold an election map that gives Democrats a chance to pick up a seat in this year’s election. The ruling is the latest in a series of decisions triggered last year by a panel of federal judges who said Virginia’s map illegally packed African American voters into one district at the expense of their influence elsewhere. Last month, the judges sought to change that by imposing a map that increases the number of African American voters, who reliably vote for Democrats, in a district that stretches from Richmond to Norfolk. It is represented by Rep. J. Randy Forbes (R). The matter is not settled entirely — the high court is still set to hear arguments in the case on March 21. But Democrats viewed Monday’s decision as a sign that the June primary will take place under the new lines. “This is an encouraging development that will allow the Democratic Party of Virginia to make the necessary adjustments to ensure a seamless Election Day with the new district lines,” Susan Swecker, chairwoman of the state Democratic party, said in a statement. It also increases the pressure on potential congressional candidates who are considering running in the newly drawn districts. Forbes is reportedly considering a run for the seat currently held by Rep. Scott Rigell (R-Va.), who is retiring in 2017. State Sen. A. Donald McEachin (D-Henrico) has said he would be interested in running for the district currently represented by Forbes. Of Virginia’s 11 representatives, eight are Republicans and three are Democrats. The challenge to Virginia’s congressional district map and similar ones around the country were brought by attorney Marc E. Elias and funded by the National Democratic Redistricting Trust. Elias is general counsel to Hillary Clinton’s presidential campaign and worked for Gov. Terry McAuliffe’s campaign. The case has taken a circuitous route through the courts. The judges ruled in favor of Elias in October 2014 and ordered the legislature to redraw the congressional map. Attorney Michael A. Carvin appealed on behalf of Virginia’s Republican congressional delegation. While the appeal was pending, the Supreme Court decided a similar redistricting case in Alabama and ordered the federal panel to reconsider the Virginia one. The judges affirmed their earlier decision, and congressional Republicans again appealed. Because of the special nature of redistricting challenges, appeals from three-judge panels go directly to the Supreme Court.

It will take a con-con to untangle Maryland’s gerrymanders

The U.S. Constitution mandates that states redraw their political districts every decade, based on the latest population census data. Maryland’s General Assembly is currently considering new districts for itself. Maryland’s redistricting process allows incumbent legislators to choose their own and their competitors’ voters for the coming decade. The resulting anti-democratic districts are called gerrymanders, which have two basic flavors: partisan and pro-incumbent. In a partisan gerrymander, districts are drawn to favor the dominant political party. For example, Maryland’s recently approved congressional districts were drawn so that the Republican Party would be dominant in only 12.5 percent of the congressional seats despite routinely polling more than 40 percent of the vote. In a pro-incumbent gerrymander, districts are drawn to favor sitting legislators. Maryland’s proposed General Assembly districts have been drawn to give most members of both parties safe seats in the general election. Many will run unopposed or face only nominal opposition. Of course, the incumbents who control redistricting routinely profess that the districts are drawn to enhance, rather than harm, democratic values. Although everyone knows these claims are a farce, it plays out this way decade after decade because incumbents benefit from the status quo and voters have no practical recourse for bringing about change. One common recommendation to fix the problem is to create a bipartisan redistricting commission. But creating such a commission isn’t politically viable in Maryland, where one party dominates the government and no ballot initiative exists. Another often-heard idea is to empower judges to draw the districts. But judges lack the power of the purse or sword to enforce their rulings, often depend for their appointments and perks on the good will of incumbent legislators and know that they are popularly perceived to be the least democratic branch of government. Hence, except for the most egregious gerrymandering cases, they defer to the political branches. As U.S. District Court Judge Roger W. Titus wrote in a recent redistricting case, it “is clear that the plan adopted by the General Assembly of Maryland is, by any reasonable standard, a blatant political gerrymander.” Nevertheless, he approved the plan. My preferred solution is the redistricting jury. With a redistricting jury, judges don’t choose a plan. Instead, they convene a jury to pick from among submitted plans based on democratic criteria such as compactness, contiguity and equal population. To enhance its democratic legitimacy, the jury is randomly selected and unusually large. Until recent technological advances, redistricting juries weren’t practical. Drawing district maps used to require experts, cost hundreds of thousands of dollars and required months of work. Now a fifth-grader connected to the Internet can draw comparable maps with a few clicks of a mouse. This means that a redistricting jury would be able to choose from among many high-quality submitted maps. However, given the long-standing and inevitable opposition of Maryland’s incumbent legislators to meaningful redistricting reform, the only politically plausible way to implement such reform is via a state constitutional convention. The good news is that Maryland’s Constitution mandates that citizens be asked every 20 years whether they want to convene such a con-con. In 2010, when the question was last on the ballot, 54.4 percent of those voting on the question voted yes. Not a single member of the General Assembly publicly supported a yes vote. The bad news is that, relying on a self-serving and, I believe, illegal interpretation of Maryland’s Constitution, the governor and General Assembly refused to convene the approved convention, despite their oath of office to uphold the Constitution. With the need for redistricting and other democracy-enhancing reforms in mind, reformers should support pressuring and suing the governor and General Assembly to convene the con-con that Maryland voters approved. The writer is president of iSolon.org and a fellow at Harvard University’s Edmond J. Safra Center for Ethics. **More Local Opinions** Emilie Surrusco: Yeardley Love’s story — and mine Close to Home: White in a black neighborhood Gall and Frommer: Danger zone for D.C.’s food trucks ****

The Supreme Court issues a welcome ruling for voting rights

RACE WAS an impermissibly predominant factor in the drawing of two North Carolina congressional districts, the Supreme Court determined Monday, upholding a lower-court ruling. In the process, the court did two welcome things. First, it made clear that politicians drawing district lines will face strong constraints in shuffling minority voters in or out of political boundaries. Second, it declared that those challenging district maps have several ways of substantiating their claims, flexibility that might aid plaintiffs in future gerrymandering lawsuits. North Carolina has become the poster child for voter-suppression laws and absurd gerrymandering. Following the 2010 Census, its Republican legislature produced an astonishingly slanted congressional map. Though the state is closely divided politically, it sent nine Republicans and only four Democrats to Washington after the 2012 election. This alone may not have raised the court’s ire: The justices have ruled that gerrymandering for partisan reasons is generally permissible. What’s not, most of the time, is moving district lines around based on voters’ race, rather than their party. In the case of its 1st Congressional District, North Carolina claimed an exception. The state argued that it packed more African Americans into the traditionally Democratic district because the state was worried that it would have otherwise violated the 1964 Voting Rights Act. In some cases, the act requires that minority populations be bunched together so that their preferred candidates can win, in order to curb the dilution of minority votes. In fact, the state legislature almost certainly moved minority voters into the 1st District to make the adjoining districts whiter and, therefore, more Republican. Nothing in the district’s voting history, which is reliably Democratic, suggests minority voices were being drowned out before. The state claimed that population shifts necessitated adding thousands of voters to the district, and that legislators wanted to be sure these changes did not result in minority vote dilution. But it could point to no serious analysis backing up its claim. The state’s invocation of the Voting Rights Act was cynical, and it deserved to be repudiated. The court made clear that judges will not allow a law meant to offer minority voters a fair shot at representation to be used as pretext for race-based voter-map manipulation unrelated to that goal. Also notable, and more controversial among the justices, was that the court granted flexibility to those challenging district lines on the grounds that they were drawn according to impermissible racial considerations. In the case of North Carolina’s 12th Congressional District, the second one the court struck down on those grounds, the state claimed that its opponents had to produce an alternative legislative map showing what the district would have looked like absent the consideration of unlawful racial factors. The court ruled sensibly that other kinds of evidence, such as statements from lawmakers and expert studies, could obviate the need for an alternative map. As the courts deal with assertive GOP efforts to fix the electoral rules in ways that disadvantage minorities, the Supreme Court’s Monday findings are welcome. **Read more on this topic:** Richard L. Hasen: The Supreme Court may just have given voting rights activists a powerful new tool The Post’s View: Maryland Democrats’ faux redistricting reform Nancy Soreng and Jennifer Bevan-Dangel: Maryland shouldn’t wait for other states to start redistricting The Post’s View: It’s up to voters to end gerrymandering John Lewis: How we won, and are losing, the right to vote

Supreme Court takes up highly political Arizona redistricting case

Supreme Court justices will hear arguments Monday morning over an independent redistricting commission created by Arizona voters more than a decade ago in a case that may have the most direct impact on the makeup of the U.S. House of Representatives this term. Arizona voters passed a ballot initiative back in 2000 creating a bipartisan commission to conduct the decennial redistricting process. The panel, comprised of two Republicans, two Democrats and a fifth member, chosen by the other four, to break ties, was supposed to draw fairer lines, mostly free of partisan gerrymandering. [ _ **This is the best explanation of gerrymandering you will ever see**_ ]    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico But members of the Republican-led state legislature say the U.S. Constitution clearly grants them the right to draw their own districts. Article 1, Section 4 of the Constitution grants legislatures the power to decide “The Times, Places and Manner of holding Elections.” That clause, the legislature has argued, should supersede the ballot initiative that created the commission. If the court agrees, Arizona’s legislature would likely have to redraw congressional and legislative district lines before the 2016 elections. And redrawing district lines could have big benefits for Republicans. The party already controls five of nine congressional districts in Arizona, and in 2014 they narrowly missed out on winning two more — seats held by Reps. Ann Kirkpatrick (D) and Kyrsten Sinema (D). The court will be asked to decide just how much authority the legislature has to draw its own district lines. The legislature, represented before the Supreme Court on Monday by former Solicitor General Paul Clement, contends the Constitution gives them sole power to oversee the process. Currently, the commission’s plans are sent to Arizona’s Secretary of State, who seeks the legislature’s input before finalizing the map. Supporters of the independent commission will argue the legislature has at least some control over the redistricting process: Legislators get to pick commission members, from a pre-approved list. A three-judge district court panel rejected the legislature’s suit on a two- to-one vote. That court cited two previous Supreme Court cases, _Ohio ex. rel. Davis v. Hildebrandt_ , decided in 1916, and _Smiley v. Holm,_ a 1932 case out of Minnesota, according to SCOTUSblog.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico In the Ohio case, the court ruled that a voter referendum was a part of the legislative process. In the Minnesota case, the court said the Elections Clause in the U.S. Constitution granted each state the ability to choose its own method of holding elections. The National Conference of State Legislatures filed an amicus brief in support of the legislature’s challenge to the law, while 13 states and the Department of Justice have weighed in on behalf of the commission. The case has the potential to affect other states that have moved to a bipartisan or nonpartisan redistricting process, too. California, Idaho and Washington each have independent commissions that draw state boundaries. (So do Montana and Alaska, but both of those states have only one representative in Congress.) Twenty-one states have established redistricting commissions in some form, though most allow the legislature to have a final say.

Republicans shrug off governor’s offer to seek nonpartisan redistricting

RICHMOND — Gov. Terry McAuliffe (D) on Thursday urged Republican leaders in the House of Delegates to stop defending legislative districts that are under legal challenge and work with him on nonpartisan redistricting. Republicans declined, accusing the governor of grandstanding one day after the U.S. Supreme Court told a lower court to reexamine Virginia’s redistricting efforts for signs of racial bias. “I believe very strongly that this case is far from over and it’s premature to think about redrawing lines,” said House Speaker William J. Howell (R-Stafford). “I believe he’s doing it just for political gamesmanship.” House Republicans drew the districts in 2011 but they were approved by a majority of the body — Democrats and Republicans. The Republicans went on to increase their majority in the House, and today have 66 seats to 34 held by Democrats. In Wednesday’s 7-1 ruling, the Supreme Court found that a lower court used the wrong standard in upholding 11 districts that were drawn to have a voting population that was 55 percent African American. The court did not rule on whether that constituted racial bias by concentrating black votes in a few districts, only that the lower court used the wrong legal approach in evaluating them. In a 12th district that the high court did examine, it found that the lines were properly drawn. Democrats and some legal experts said the ruling made it more probable that the lower court would overturn the districts, which would require new boundaries for those and the ones around them. The case seems unlikely to be resolved through the court system before this November’s elections for all 100 House seats, experts said. But if the districts were redrawn, there could be special elections as soon as next year. On Thursday, McAuliffe sent a letter to Howell and House Majority Leader M. Kirkland Cox (R-Colonial Heights) urging them to capitulate. Noting that the Supreme Court last year struck down several Virginia congressional districts on the grounds that they were drawn to concentrate black votes, McAuliffe said the recent decision was heading down the same path. “This ruling sets the stage for protracted litigation at taxpayer-expense and further delay that will cast a shadow over our upcoming legislative elections — unless we find a more productive path forward,” he wrote. If the Republicans would agree to settle the lawsuit and empower the General Assembly to redraw the districts in a nonpartisan fashion, McAuliffe said he would call a special session of the legislature to get the job done before November elections. Del. S. Chris Jones (R-Suffolk), who led the effort to draw the districts in 2011, said Thursday that he found the governor’s offer amusing given the years that Democrats controlled the legislature and drew districts to their own liking. “For decades and decades, you never heard any push for nonpartisan redistricting until Republicans took over about 15 or 16 years ago, which I find real interesting,” he said. Jones, who is chairman of the House Appropriations Committee, estimated that the public bill for defending the districts in court could be as much as $2 million and counting. Howell pointed out that former U.S. attorney general Eric H. Holder Jr. is leading a new political organization, the National Democratic Redistricting Committee, that is spending money to seek more favorable legislative districts. In that light, he said, McAuliffe’s offer to work together is “hypocritical.” The House Republican caucus has retained the law firm of BakerHostetler to represent it in defending the districts. Mark Braden, a lawyer for the firm, said he remains “quite confident in a victory” once the case goes back to federal district court.

U.S. judge: Miller, Busch must testify, turn over documents in redistricting case

A federal judge has ordered Maryland’s top two legislative leaders to testify and turn over records for a lawsuit challenging the 2011 redrawing of the state’s congressional districts, which effectively ensured Democratic control of seven out of eight U.S. House seats. Senate President Thomas V. Mike Miller Jr. (D-Calvert) and House Speaker Michael E. Busch (D-Anne Arundel) have fought efforts to examine their intentions during the redistricting process, claiming that “legislative privilege” protects them from records requests and litigation related to internal deliberations. But U.S. District Judge James K. Bredar ruled Tuesday that the ability to discover evidence “lies at the heart of this case” and that the legislature’s direct role in the redistricting process “supports overcoming the legislative privilege.” Bredar wrote that the protections Miller and Busch had claimed do not apply in certain types of federal lawsuits, particularly those that don’t involve financial liability. His order also applies to a number of other current and past state officials who have received subpoenas, including Jeanne D. Hitchcock, who chaired the state’s redistricting commission and was former Democratic governor Martin O’Malley’s appointments secretary; former commission member Richard Stewart; and state Sen. Richard S. Madaleno Jr. (D-Montgomery). The plaintiffs are Maryland residents who have asked the court to block the state Board of Elections from enforcing the voting map, which they consider to be gerrymandered, or manipulated in favor of one political party. “What we were seeking in the motion was an opportunity to ask these people questions,” said their attorney, Michael B. Kimberly. “And we’re pleased we’re going to have that opportunity.” The offices of Miller, Busch and state Attorney General Brian E. Frosh (D), whose agency has defended state officials involved in the case, declined to comment on the decision. Gov. Larry Hogan (R), who has proposed overhauling the redistricting process for the past two years, returned to the topic during his State of the State address on Wednesday, urging lawmakers to pass legislation that would create a nonpartisan commission to draw the state’s voting boundaries instead of leaving it to elected officials. Democrats, who hold strong majorities in the legislature, have resisted such efforts, saying that redistricting changes should apply to all states, including those that are widely considered to be gerrymandered in favor of Republicans. Miller said Wednesday that the Senate “will pass a bill this year that lumps states together” for redistricting purposes. He did not provide specifics. Hogan spokesman Doug Mayer declined to comment on the lawsuit but said the governor believes that “voters should choose their elected officials, not the other way around.” The lawsuit focuses on Maryland’s 6th Congressional District, which covers a large swath of Montgomery County, then meanders north to the Pennsylvania line and west to West Virginia. It alleges that state officials drew those lines to help unseat then-Rep. Roscoe G. Bartlett (R), a 10-term incumbent who lost to Democrat John Delaney in 2012. The plaintiffs, some of whom were moved from the 6th District to the 8th District when the lines were redrawn, claim that the new boundaries violate their First Amendment rights by subjecting them to disfavored treatment because of their voting preferences. Bredar threw out the case in 2014, but the Supreme Court later ruled that the matter should have gone before the District Court’s three-judge panel. Last year, the panel decided 2 to 1 that the lawsuit could go forward. Ovetta Wiggins contributed to this report.

Supreme Court, with ninth justice, now looks ahead to contentious fall term

Three key cases lingered for months on the court’s docket this term as justice waited for a ninth person to join their ranks — and two other cases, in which justices were tied 4 to 4, will be reargued. Right before Justice Antonin Scalia died in February 2016, the court took three cases -- on immigration, class-action lawsuits and religious rights — for its 2016-2017 term that, without nine justices, seemed likely to end in a 4-to-4 tie. Usually, the Supreme Court hears arguments in each case in the exact same order as they accepted them, but these cases were different. “They held them for month after month without arguing them,” said John Elwood, a Washington lawyer who closely watches the court’s deliberations on accepting cases. “They wanted to see if they could have them argued to the full court.” The court generally wants to avoid 4-4 rulings. “From any perspective — ideological or courts legitimacy — there’s not a lot to be gained by 4-4 rulings,” Supreme Court scholar Adam Feldman said. This term, the court finished with two 4-to-4 decisions in cases they heard before Neil Gorsuch joined their ranks. The cases ask, respectively, whether those facing deportation be held indefinitely and when immigrants can be deported for crimes. They will be reargued before a full court in their next term. Despite delays, the court decided some significant cases this term. Here’s four of them: Church and state Trinity Lutheran Church of Columbia v. Comer The court ruled 7 to 2 that religious institutions may not be excluded from state programs with a secular intent — in this case, making playgrounds safer. Trademarks Packingham v. North Carolina The court ruled unanimously that the federal government has violated the First Amendment by refusing to register trademarks that officials consider disparaging, in a decision that provides a boost to the Washington Redskins’ efforts to hang on to the team’s controversial name. Gorsuch did not take part in the decision. Criminal procedure Murr v. Wisconsin The court ruled 5 to 3 to give a second chance to a U.S. permanent resident who pleaded guilty to a drug charge and faces deportation because his lawyer gave him bad advice. Redistricting Cooper v. Harris The court ruled 5 to 3 that North Carolina’s Republican-controlled legislature relied on racial gerrymandering when drawing the state’s congressional districts, a decision that could make it easier to challenge other state redistricting plans. Gorsuch did not take part in the decision. After Gorsuch joined the court, the justices agreed to take up some more contentious issues for the next term, which runs from October 2017 to June 2018. The court will decide whether a warrant is needed to track a suspect through cellphone records and whether Wisconsin Republicans went too far when drawing state legislative districts. They will also decide whether a Denver baker unlawfully discriminated against a gay couple by refusing to sell them a wedding cake in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case justices considered a record 14 times before deciding to hear it. Early next term, the court will also consider the president’s broad powers in immigration matters, in a case that raises fundamental issues of national security and religious discrimination. The temporary ban on travelers from six Muslim-majority countries and refugees from all countries was fast-tracked, with the administration asking the courts to take up the issue in early June after lower courts blocked President Trump’s executive order. About this story Data from SCOTUSblog and Oyez.

Supreme Court lets Wisconsin’s voter-ID law stand

The Supreme Court on Monday turned down a challenge to Wisconsin’s 2011 law requiring voters to present photo identification, but the state’s attorney general said the law will not be in effect for next month’s elections in the state. The justices’ decision not to review a federal appeals court ruling that upheld the law was a victory for Gov. Scott Walker (R), who supported and signed the law, and perhaps for other states that have tightened voting procedures to require additional identification. More challenges to specific state laws are in the pipeline. The Supreme Court last year stayed the Wisconsin law from affecting November’s midterm elections. At the time, civil rights groups told the court that it was too close to the elections to be sure that everyone who lacked the required photo ID would get one in time to vote. After Monday’s action, in which the justices without comment declined to review the law, state Attorney General Brad Schimel (R) said Wisconsin would voluntarily forgo the requirements for the upcoming election. “Absentee ballots are already in the hands of voters, therefore, the law cannot be implemented for the April 7 election,” Schimel said in a statement. “The Voter ID law will be in place for future elections — this decision is final.” The Supreme Court ruled in 2008 that states may require voters to present photo identification before casting ballots, opening the way for wider adoption of measures that Republicans say combat fraud and Democrats say discourage voting among minorities, the elderly and the poor. A number of Republican-led states have passed tighter voting requirements, and that has led to a rash of litigation in the lower courts. In a series of emergency rulings just before the last election, the Supreme Court allowed a Texas law to take effect, despite a lower court’s ruling that it was based on intentional discrimination; upheld a change in Ohio law that shortened the period for early voting; and allowed North Carolina to go through with two changes that were being challenged: doing away with same-day registration and voting, and refusing to count ballots mistakenly cast in the wrong precinct. Those decisions seemed to be based less on the merits of the cases than on the justices’ unwillingness to upset the procedures for the elections at the last minute. The Wisconsin law has been controversial since its passage and has been used only in a February 2012 primary. A federal judge in Milwaukee agreed with the American Civil Liberties Union and civil rights groups that the law is unconstitutional. But a panel of the U.S. Court of Appeals for the 7th Circuit in Chicago reversed that decision. Richard Hasen, a voting-law expert at the University of California at Irvine law school who opposes voter-ID laws, wrote on his blog that the court’s decision to pass up the Wisconsin appeal might be a “blessing in disguise.” Hasen said that from the perspective of those who oppose such laws, the Texas case might be more promising for court review. U.S. District Judge Nelva Gonzales Ramos found that there was evidence that law was written to discriminate. When the Supreme Court turned down a request to stay the Texas law and allowed it to be implemented for November’s elections, Justice Ruth Bader Ginsburg wrote a stern dissent. “The greatest threat to public confidence in elections . . . is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” Ginsburg wrote. The U.S. Court of Appeals for the 5th Circuit is reviewing Ramos’s decision. The justices on Monday also declined to consider the case of a Texas inmate who has been on death row for three decades. As a result, the court lifted a stay that has been in place since last month. Lester Bower, 67, was convicted of killing four men in an aircraft hangar in 1983. He shot one man while trying to steal an ultralight plane this man was trying to sell, then shot the other three when they unexpectedly arrived, according to the Texas Department of Criminal Justice. He has maintained his innocence. Bower’s long tenure on death row was among the reasons his attorneys argued he should be eligible for a stay. They say his execution has been scheduled six times since he arrived on death row, and he has come within hours of heading to the death chamber before. Justice Stephen G. Breyer said the court should have considered Bower’s appeal. He said that when Bower was convicted, the jury helping decide his sentence did not properly consider potentially mitigating evidence. Bower was entitled to another sentencing hearing, Breyer said. “I recognize that we do not often intervene only to correct a case-specific legal error,” Breyer wrote in his dissent, which was joined by Ginsburg and Justice Sonia Sotomayor. “But the error here is glaring, and its consequence may well be death.” However, it is unclear when Bower may face the death chamber. Texas has half a dozen executions scheduled over the next three months and only one dose of its lethal-injection drug left. If the state carries out its scheduled execution of Kent Sprouse on April 9, it will have no drugs left and five other executions on the calendar. States across the country are facing a shortage of lethal-injection drugs, which has fragmented the way executions are carried out nationwide.

Va. House has no immediate plans to redraw congressional map

RICHMOND — The speaker of the Virginia House of Delegates said Friday that he will not redraw congressional district lines while appeals are pending in a federal court case that deemed the map unconstitutional for diluting the influence of African American voters. The U.S. District Court for the Eastern District of Virginia last year ordered the Virginia General Assembly to remake the map by April 1, but congressional Republicans quickly appealed the ruling. House Speaker William J. Howell (R-Stafford) said initiating the redistricting process could create confusion if the Supreme Court reverses the lower court. “The Virginia House of Delegates fully intends to exercise its legal right to attempt to remedy any legal flaw ultimately found by the courts with respect to the current congressional districts,” Howell said in a statement Friday. “However, we believe it would be inappropriate to act before the defendants have fully litigated this case. We are confident that a stay will be granted.” Gov. Terry McAuliffe (D) said Howell’s wait-and-see strategy will not change the reality that the map is illegal and must be redrawn. “Governor McAuliffe is concerned that House Republicans will forgo Virginia’s opportunity to draw a sensible, nonpartisan map that complies with the court’s ruling in advance of the deadline the court clearly set. Running out the clock will not make the current unconstitutional map any more legal, but it will inject unnecessary legal uncertainty into what should be a straightforward process,” Brian Coy, McAuiffe’s spokesman, said in a statement. Coy declined to comment on whether McAuliffe will propose a map of his own. The court has yet to act on congressional Republicans’ request to move the deadline for redrawing the maps to Sept. 1. Attorney General Mark R. Herring (D) opposed the request and offered a counter-deadline of April 15. In his brief, Herring said that McAuliffe agreed that the deadline should be extended. The April 15 date coincides with lawmakers’ scheduled return to Richmond to reconvene the legislative session. If the date comes and goes with no action from the House, lawmakers could be forced to call a special session at a later date and return to Richmond at significant taxpayer expense, Herring said. Each day of a special session costs about $41,000, including personnel costs, per diem payments to lawmakers and other expenses, he said. But Howell said the Supreme Court’s lack of action on the appeal suggests that “it is not clear there are any true legal flaws in the current map, and, if there are, their true nature is not known.” The lower court’s decision focused on the state’s lone black-majority district — the 3rd Congressional District, which stretches from Richmond to Hampton Roads and is represented by Robert C. “Bobby” Scott (D). The decision declared Virginia’s congressional maps unconstitutional because they concentrate African American voters into a single district at the expense of their influence elsewhere. The decision also delivered another victory for Democratic plaintiffs hoping to break up black-majority districts, which they say have been drawn by Republicans who have used the Voting Rights Act to dilute the influence of minority voters. Shortly after the decision, the same law firm that challenged the congressional maps filed a federal suit challenging the boundaries of a dozen House of Delegates districts on similar grounds. Both cases came on the heels of a 2013 Supreme Court decision invalidating a key provision of the Voting Rights Act. A similar case in Alabama is pending before the Supreme Court.

Justices rule 5-4 that independent panels can draw election district lines

A divided Supreme Court on Monday said voters concerned that partisan gerrymandering is creating unfair elections are entitled to take reapportionment away from state legislatures. The court ruled 5 to 4 that the Constitution does not give legislatures exclusive control over congressional redistricting and said voters may vest the power in independent commissions by ballot initiative, where this option exists. “The animating principle of our Constitution [is] that the people themselves are the originating source of all the powers of government,” Justice Ruth Bader Ginsburg wrote for the majority. The court upheld a plan Arizona voters approved in 2000 that set up an independent commission to draw the boundaries. The Republican-led Arizona legislature had objected to the plan the commission drew, and pointed to the Constitution’s Elections Clause to contest the validity of the district map. The clause states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” If the Arizona legislature had retained the power to set the map, Republican lawmakers would have been able to redraw the boundaries to the advantage of their party in at least two of the state’s nine congressional districts, which are now roughly split between Republicans and Democrats. The Supreme Court has largely stayed out of partisan gerrymandering cases, unable to agree on a test that would allow the court to discern when expected political maneuvering rises to the level of being unconstitutional. Ginsburg was joined in the majority by Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. issued a biting dissent, accusing the majority of using a “magic trick” to impose its policy preferences. “No matter how concerned we may be about partisanship in redistricting, this court has no power to gerrymander the Constitution,” Roberts wrote. He was joined in dissent by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Scalia and Thomas would have ruled that the case be dismissed as an allocation of political power that the courts have no business deciding. Scalia said he joined Roberts because the majority opinion “is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.” The Arizona plan works like this: The top Republican and Democratic leaders in the two legislative chambers each select a member of the commission from a list of 25 people compiled by a group that also selects judicial candidates. Those four commission members select a chairman also from the list. Legislative leaders may comment on the plans the commission draws up, but they cannot alter the maps, nor can the governor veto them. California is the only other state that has diminished the legislature’s role in a similar fashion. About 11 other states have created commissions that advise legislators on reapportionment or serve as a backup in case the legislature fails to complete a plan. Ginsburg acknowledged that the language of the Elections Clause seemed to indicate the work was to be done by a legislature. But she invoked history and the court’s precedents to say that the word more broadly speaks to the power to make laws and that it is clear Arizona allows voters to make laws through the initiative process. “Recall that when the Constitution was composed in Philadelphia and later ratified, the people’s legislative prerogatives — the initiative and the referendum — were not yet in our democracy’s arsenal,” Ginsburg wrote. “The Elections Clause, however, is not reasonably read to disarm states from adopting modes of legislation that place the lead rein in the people’s hands.” Roberts countered that it took 86 years to pass the 17th Amendment calling for the election of U.S. senators directly by the people instead of by state “legislature.” “Didn’t they realize that all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people’?” Roberts asked. Roberts said the Constitution uses the word “legislature” nearly 20 times to mean a law-making body, and that the majority simply thinks it is better to combat gerrymandering than abide by the words of the document. Michael Li, counsel at the Brennan Center for Justice, said the ruling was a big win for voters concerned about gerrymandering. “By leaving in place important redistricting reforms in Arizona and California, the Supreme Court reaffirmed the principle that voters have the freedom under the Constitution to experiment with ways to make their democracy work better,” he said. About half of the states have ballot initiatives that let citizens go around the legislature and put issues to referendum. The case is _Arizona State Legislature v. Arizona Independent Redistricting Commission_.

State lawyer questions aspects of Hogan’s Md. redistricting plan

A lawyer for Maryland’s General Assembly has cast doubt on the legality of Gov. Larry Hogan’s proposal to take politics out of the redistricting process by shifting control from the governor and legislature to a nonpartisan commission. The idea of using an independent board to draw voting districts is broadly popular among Marylanders, regardless of demographics and political leanings, according to a recent Goucher College poll. But Assistant Attorney General Kathryn M. Rowe, responding to a request for advice from Sen. Joan Carter Conway (D-Baltimore), said in a letter this month that she has identified 10 legal problems with the proposal by Hogan (R), which would amend the state Constitution to require that a nonpartisan commission handle the redistricting process. The goal of the legislation is to end the practice of gerrymandering, or manipulating legislative and congressional boundaries in ways that give one party an advantage. The March 14 letter from Rowe effectively provides ammunition for Democratic leaders in the legislature who have resisted Hogan’s proposal and called for national redistricting changes that would apply equally to states where Republicans control the legislatures. Hogan’s proposal would have to be approved by the state’s Democratic-majority legislature and by voters to become law. The legislation has stalled at the committee level in the House and Senate, eliciting criticism from Hogan. Rowe, deputy counsel for the General Assembly, said the proposed constitutional amendment, which provides the governor and legislature with no role in the redistricting process, contradicts another section of the bill that says the final map has to be approved by the General Assembly and the state’s chief executive. She also took issue with a provision that would require both chambers of the legislature to approve the commission’s redistricting plans by a three-fifths vote. She said no such supermajority rule can apply to regular bills without a constitutional amendment. Additionally, Rowe said the legislation would restrict the attorney general’s constitutional authority to prosecute or defend the state in all cases pending in Maryland appeals courts and the federal judiciary. The bill would give the nonpartisan panel sole authority for determining who should defend any adopted redistricting plans. Another concern is that the bill would require funding in the state budget to pay for legal defenses of the final redistricting map. Rowe said the provision “does not meet the requirements necessary under the Constitution to act as a funding mandate” because it does not prescribe a dollar amount or a specific funding formula. Hogan spokesman Doug Mayer called Rowe’s letter “a feeble attempt to throw up a last-minute smoke screen in front of an important legislative issue.” He said lawmakers could have addressed the issues Rowe raised by adding amendments to the bill, noting, “that’s what committee hearings are for.” Maryland is home to some of the most gerrymandered voting districts in the nation, according to many analysts. The state’s 3rd Congressional District is notorious for its design, with lines that meander through four counties in the central part of the state with little geographic sense. Republicans have accused the previous governor, Martin O’Malley (D), of further manipulating the system in 2011 when he divided many conservative-leaning counties into multiple districts and shifted left-leaning populations from liberal to more moderate districts, all but ensuring that Democrats would control seven of the state’s eight congressional seats. In Virginia, Democrats say the Republican-controlled legislature has similarly used the redistricting process to its advantage, drawing lines that ensure a lopsided number of GOP congressional representatives. Virginia’s congressional districts are being challenged in the U.S. Supreme Court. Six states, including California and Arizona, use nonpartisan redistricting commissions to set their voting boundaries. Read more on redistricting: Md., Va. lawmakers want to join forces to fix redistricting Supreme Court could decide against Va. in redistricting fight Opinion: Virginia’s redistricting chaos, in black and white

Wisconsin high court won’t restore voter ID law before Election Day

Wisconsin’s Supreme Court denied the state’s request to immediately hear its appeals of two trial court-level rulings invalidating a voter identification law, Bloomberg News reported Wednesday. Attorney General J.B. Van Hollen last month asked the high court to delay enforcement of the decisions rendered by a pair of judges in the state’s capital city, Madison, earlier this year pending appellate review. He also asked the seven-justice panel to immediately hear his challenges and bypass the state’s intermediate appellate court. In separate rulings issued today, the high court denied Van Hollen’s requests. “There will be no voter ID law in effect for the presidential election on Nov. 6,” plaintiffs’ lawyer Lester Pines said in a phone interview. His Madison firm represented the League of Women Voters Wisconsin Education Network in one of the cases. Dane County Circuit Judge Richard G. Niess, who presided over the League case, in March ruled the law requiring otherwise eligible voters to present a government-issued photo identification before being allowed to cast their ballots was an unconstitutional burden. Dane County Judge David Flanagan, who had issued his own temporary order enjoining enforcement earlier that month in a suit brought by the Milwaukee branch of the National Association for the Advancement of Colored People, invalidated the law in July after a bench trial. First-term Gov. Scott Walker, a Republican, signed the voter ID measure into law last year. “This court recognizes the importance of the issues raised in this case and NAACP,” the state’s supreme court said in its ruling Wednesday in the League of Women Voters case. “The two cases share a commonality of subject matter, and if we were to grant review, we would hear oral argument in both cases on the same day and would take both matters under advisement at the same time.” Because appellate briefing is not yet complete in the NAACP suit, the high court said, it is “not feasible” to hear them both at this time. Van Hollen said in a statement that he was “very disappointed” by the high court decisions.   “The Voter ID law protects the integrity of our elections,” he said. “The result is that the injunctions against the Voter ID law remain in effect and will, in all likelihood, be in effect for the upcoming November elections.”

Supreme Court hands win to opponents of Alabama redistricting plan

The Supreme Court sided with black challengers Wednesday and told a lower court to reconsider whether a redistricting plan drawn by Alabama’s Republican-led legislature packed minority voters into districts in order to dilute their influence. The court voted 5 to 4 to send the plan back for further judicial review. Justice Stephen G. Breyer wrote the opinion, and Justice Anthony M. Kennedy sided with the court’s liberals to make up the majority. The challenge was brought by black officeholders and Democrats who argued that the state’s Republican leadership packed minority voters into districts that allowed the election of African American officials but reduced their influence elsewhere. Breyer said a lower-court panel should have looked at individual districts rather than statewide in order to decide whether there was racial gerrymandering. And he said the legislators and the reviewing court did not use the proper test in deciding whether the redistricting was in line with the Voting Rights Act. The act forbids “retrogression” in districts that favor minority candidates. But that does not mean the districts must retain a previous percentage of minority voters to meet the standard, Breyer wrote. What is important instead is looking at what percentages are necessary to preserve the minority’s ability to elect the candidate of its choice, he said. “Asking the wrong question may well have led to the wrong answer,” Breyer wrote. The court’s jurisprudence on when race can be used in drawing legislative districts is complex and at times contradictory. And more than one justice pointed out during oral arguments that minority voters used to come to the court to demand that legislatures specifically use race to ensure that blacks and Hispanics be represented in government. The court’s four most consistent conservatives — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — said the decision could have implications far beyond the limited ruling the majority professed. “The court issues a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the state in managing its own elections,” Scalia wrote in a dissent that all joined. Thomas, the court’s only African American member, wrote separately to say that the intent of the Voting Rights Act has been “hijacked” by the Justice Department and the American Civil Liberties Union. “We have somehow arrived at a place where the parties agree that Alabama’s legislative districts should be fine-tuned to achieve some ‘optimal’ result with respect to black voting power; the only disagreement is about what percentage of blacks should be placed in those optimized districts,” Thomas said. “This is nothing more than a fight over the ‘best’ racial quota.” Alabama Attorney General Luther Strange (R) said that he was disappointed by the ruling but that it did not mean the maps needed to be redrawn nor new elections ordered. “My office will continue defending the state’s legislative districts,” he said in a statement. While Breyer’s opinion did not say any districts were illegally drawn, he noted that “there is strong, perhaps overwhelming, evidence that race did predominate as a factor” in at least one. At the time the districts were being drawn, Alabama was operating under Section 5 of the Voting Rights Act, and state officials said they believed they had to maintain previous percentages of minority voters in majority-minority districts. The number of blacks serving in the Alabama legislature is proportional to the state’s population. But the Supreme Court effectively struck Section 5 in 2013, and Breyer acknowledged it is unclear what role it still plays. Even so, he said, Alabama legislators had interpreted it incorrectly. Election law experts said the practical effect of the ruling is unclear. Justin Levitt, a professor at Loyola Law School in Los Angeles who runs a blog about redistricting, said the lesson of the court’s ruling is that “it is incorrect for states to simply decide on a set percentage of minorities in a district, divorced from political facts on the ground.” “The Voting Rights Act is concerned with real political opportunity for affected populations, and it’s a mistake to shift people based on their race into a district to hit a pegged percentage, without any reflection on whether that shift is necessary to maintain real political opportunity,” he said. A federal court in Virginia has made a similar ruling about the state’s congressional districts, and there are other cases pending, Levitt said. Richard Hasen, an election law expert at the University of California at Irvine Law School, said Alabama Republicans could probably redraw the lines to similar advantage with little trouble. He said the court’s decision was a “small, albeit real, victory not only for minority voters but also for irony.” “The ‘racial gerrymander’ cause of action, which was the basis for conservatives to challenge the creation of extra majority-minority districts under the Voting Rights Act, has now become a tool by those who hate the cause of action to protect minority voting rights,” Hasen wrote on his blog. The case is _Alabama Legislative Black Caucus v. Alabama_.

U.S. court moves ahead with plan to redraw Virginia congressional maps

RICHMOND — Two days after Virginia lawmakers blew their court-imposed deadline for redrawing the state’s congressional election maps, federal judges on Thursday began to take matters into their own hands. The U.S. District Court for the Eastern District of Virginia set an ambitious schedule for naming an expert to help judges set new district boundaries and accepting suggested maps from legislators. Last year,the court declared Virginia’s congressional map unconstitutional, saying it packs African American voters into a single district at the expense of their influence elsewhere. The court later ordered the General Assembly to adopt a new map by Sept. 1. Congressional Republicans appealed the decision, but the U.S. Supreme Court has yet to say if whether it will hear the case. Gov. Terry McAuliffe (D) ordered lawmakers into special session on Aug. 17 in hopes of meeting the district court-imposed deadline. But partisan wrangling over a judicial appointment led to an abrupt end of the one-day session before any progress was made on redistricting. Lawmakers on both sides had already been predicting that the new districts would be drawn by the courts, speculating that any map passed by the Republican-controlled General Assembly would likely have been vetoed by McAuliffe. On Thursday, the court issued an order that gave parties involved in the redistricting dispute until Friday to submit suggestions for a special master to assist with the process. The order said parties should submit proposed boundaries by Sept. 18, and the court will accept comments on those maps until Oct. 2. Brian Cannon, executive director of OneVirginia2021, which supports nonpartisan redistricting, said lawmakers unhappy with the process should consider convening an independent commission to handle redistricting in the future. “If they don’t like a special master drawing these lines, then there are other ways to do this, including an independent commission,” he said. “Politicians have proven they can’t handle the responsibility themselves.” A similar but separate lawsuit challenging a dozen House of Delegates districts in Virginia is pending in court.

Supreme Court’s ruling on gerrymandering is a victory for voters

THE SUPREME Court has mostly avoided questions about gerrymandering, the practice of drawing otherwise irrational legislative district lines to the advantage of one party or of incumbents. But on Monday, in an unexpected victory for the democratic process, the court said the Constitution allows people to fight back against gerrymandering, with the strongest of tools. The court’s legal analysis in _Arizona State Legislature v. Arizona Independent Redistricting Commission_ was something of a reach. But the ruling’s practical implications are unequivocally positive. Gerrymandering deprives voters of genuine choice and encourages extreme partisanship, since many incumbents have to worry more about challenges from their flanks than from the other party. Now that the justices have given their approval, voters and courageous state leaders should work to limit or eliminate politicians’ ability to fix voting maps to their advantage. The case rose to the court from Arizona, where voters approved a ballot measure moving redistricting authority from the legislature to an independent commission. Republican state lawmakers challenged the legality of their constituents’ choice, citing the Constitution’s elections clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The line would seem to bar voters from stripping the legislature of redistricting authority. But the court’s majority found  that such a reading would run counter to the clause’s “history and purpose,” which was not to insulate state legislatures from popular initiatives. The court also relied on “the Constitution’s animating principle that the people themselves are the originating sources of all the powers of the government.” Chief Justice John G. Roberts Jr. shot back in his dissent that “no matter how concerned we may be about partisanship in redistricting, this Court has no power to gerrymander the Constitution.” Regardless of the merits of these arguments, the upshot is that popularly approved election reforms in various states are constitutional. California has a redistricting commission similar to Arizona’s, and 11 other states have adopted variations. At least two congressional districts in Arizona are likely to stay competitive thanks to the law. Usually we are skeptical of voter efforts to assume the functions of elected lawmakers. But gerrymandering is a special case because those who were elected through a slanted process have strong incentives to perpetuate that process. The unsurprising result is brazen electoral map manipulation, visible in the contorted districts that Republicans drew in North Carolina and Democrats drew in Maryland, to name just two of many. In states where redistricting won’t be taken out of the legislature’s hands entirely because there is no initiative process or because such a reform is seen as too radical, more modest policies are available. The legislature could empower an independent commission but retain veto power over its preferred map or order it to produce several alternatives. Reining in gerrymandering wouldn’t solve all of the country’s problems — not even all of the problems in how it conducts elections. But reform is in the national interest, and the Supreme Court has pointed the way forward. **Read more on this topic:** The Post’s View: Election reform is on the line at the Supreme Court George F. Will: Two reading lessons from the Supreme Court

The Supreme Court will examine partisan gerrymandering in 2017. That could change the voting map.

In 2017, the Supreme Court will take up the issue of partisan gerrymandering. Depending on how the court rules, its decisions could have far-reaching implications for the partisan balance in the U.S. House of Representatives and state legislatures — and for the future of redistricting across the country.  Partisan gerrymandering has become the norm in U.S. politics because the Supreme Court has declined to declare it unconstitutional. For three decades, a majority of justices have failed to identify manageable standards to determine when a plan rises to the level of an unconstitutional partisan gerrymander. As a result, state legislators have come to believe that they can draw partisan gerrymanders so long as long as they satisfy two criteria: They do not violate one-person, one-vote standards and do not reduce the electoral fortunes of African Americans or other protected racial and ethnic groups. As a result, the 2010 round of redistricting saw partisan gerrymandering run amok in some states. But change may be coming.  The methods of inference used in the Florida case may also be adapted to the federal context. They may help the Supreme Court decide on questions such as the standard for determining intent, and the need for burden-shifting to defendants to justify the plan if a clear violation is found. At the remedy phase, they may help determine whether an appropriate remedy involves overturning a whole plan or only particular districts, and about the amount of deference due to a legislature.   These two cases will be decided by the high court in 2017. If the courts are attentive to local circumstances, they may conclude that adding minorities to a district serves no legitimate state purpose, but merely serves to unnecessarily pack the district with minorities (who also happen to be largely Democrats).    Complementing the new First Amendment approaches, there are two other relevant developments. First, recent empirical work suggests that potentially unconstitutional partisan plans are concentrated in no more than a dozen states. That means we can use some very simple screening devices to prevent frivolous lawsuits from wasting the courts’ time. Second, there are new social science approaches to partisan gerrymandering that the Supreme Court has not previously evaluated. These include complementary ways to measure partisan bias; better ways to determine whether observed bias is due to chance or to “natural” factors having to do with the geographic clustering of groups of voters, and methods to measure the expected durability of the partisan effects of a redistricting plan. The latter two considerations had been largely or entirely missing from the gerrymandering challenges previously heard by the Supreme Court.   If, in 2017, the court does not specify a manageable standard for identifying unconstitutional partisan gerrymandering, “partisanship gone wild” will continue indefinitely, leaving us with a never-ending political nightmare: congressional delegations whose partisan balance is frozen into place regardless of changes in the preferences of the voters. Stopping egregious gerrymandering is not a partisan issue; it benefits Republicans right now, but in the past it has advantaged Democrats. Regardless of which political party gains, the loser is U.S. democracy.

Republican Larry Hogan really wants redistricting reform. He wrote to Obama about it.

Republican Gov. Larry Hogan is pulling out all the stops — including asking for President Obama’s help — in pressing Maryland’s Democratic-controlled legislature to vote on his plan for redistricting reform before lawmakers adjourn for the year on Monday. It is almost certainly not going to happen. Hogan has proposed putting a referendum on the November ballot that would ask voters whether they want a nonpartisan commission to redraw the state’s voting boundaries, which are widely considered to be among the nation’s most gerrymandered, or manipulated to give one party an advantage. In a state with an extremely popular Republican governor and a 2-to-1 ratio of registered Democrats to registered Republicans, all but one of the state’s eight congressional seats is held by a Democrat. The state constitution gives the legislature and governor authority to create congressional and legislative districts every 10 years. Six states use nonpartisan redistricting committees to draw their voting maps, and the idea is broadly popular among Maryland residents. But leading Democrats, whose party holds large majorities in the House and the Senate, say they will not consider making Maryland’s system more balanced unless other states whose maps favor Republicans do the same. The House and Senate held hearings on Hogan’s proposal more than a month ago, but no vote has been held on whether to advance the measure. “There can be no possible excuse for keeping this bill hidden in a drawer and simply ignoring the will of nearly every person in Maryland,” Hogan said at a news conference this week. “It’s time for legislators to join with us and set an example for the entire nation.” On Wednesday, Hogan’s office released a letter the governor sent to the White House requesting assistance from Obama, who has been a vocal advocate for national redistricting reform during his final year in office. “There are only days left in the legislative session, and next year, we may not have as strong an advocate in the White House as you have been on this issue,” Hogan wrote. “With your intervention, I believe we could set things right in Maryland.” The White House so far has not responded to the letter, which a spokesman for Maryland House Speaker Michael E. Busch (D-Anne Arundel) called an attempt to make “political hay.” Busch and Senate President Thomas V. Mike Miller Jr. (D-Calvert) have said Maryland should wait for Congress to enact redistricting reform nationwide, or for a regional agreement that involves Republican-controlled states. Jeremy Baker, a spokesman for Busch, said the speaker is going to focus on “issues of immediate importance to middle-class families” — such as paid sick leave and retirement benefits — during the final days of the legislative session. “After session, the speaker plans to continue to reach out to legislative leaders in the Mid-Atlantic to gauge interest in a bipartisan, regional approach to redistricting reform,” Baker said. Much like Democrats in Maryland’s General Assembly, the Republican majority in Congress is reluctant to take away redistricting power from GOP lawmakers in red states. When asked whether Hogan would consider a multi-state deal, which has been proposed by some Maryland lawmakers, aides to the governor said the state should lead on the issue. “Marylanders don’t want to have to wait for action in some other state before they can get fair election districts at home,” Hogan spokesman Matt Clark said. A lawyer for Maryland’s General Assembly provided Democrats with ammunition against Hogan’s proposal last month, saying in a letter to Sen. Joan Carter Conway (D-Baltimore), who had requested advice on the matter, that the legislation was essentially too poorly written to be workable. Hogan’s office responded last week by saying lawmakers could address any problems with the bill by amending it. In Virginia, where Republicans hold eight of 11 congressional seats, legislative proposals to establish an independent redistricting commission have made no progress. Virginia’s districts are being challenged in a case that the U.S. Supreme Court heard last month. The justices are expected to issue a ruling about June.

The gerrymandering jig should be up

THE 3RD congressional districts inMaryland and Virginia are roughly 200 miles apart — depending on which part of their ungainly boundaries one takes as a starting point — and, on the surface, seem to have little in common. Virginia’s 3rd stretches from Norfolk to Richmond. Maryland’s 3rd, with contours often likened to a blood spatter, incorporates parts of Baltimore City, as well as parts of Anne Arundel (including Annapolis), Baltimore, Howard and Montgomery counties. What they share is a genesis in bald-faced gerrymandering contrived by politicians intent on manipulating electoral maps to their advantage by hand-picking their own voters. Democrats are the culprits in Maryland’s case; Republicans did the deed in Virginia. Encouragingly, there are signs that the jig may be up, or that at least it is facing more pressure than ever before. Prodded by the judiciary, Virginia’s Democratic governor, Terry McAuliffe, and Maryland’s Republican governor, Larry Hogan, are moving toward some version of redistricting reform. In both cases, that would be a blow to the good-old boys in the state capitals and Congress, and a favor to voters, whose say in elections has been subjugated to partisan interests. Both Mr. McAuliffe and Mr. Hogan are on record as backing redistricting reform to minimize political shenanigans when their state legislatures redraw electoral lines after each decennial census. Each faces a state legislature dominated by the opposing party. And each can convincingly make the argument that the timing is right to shift the responsibility of drawing electoral maps to a bipartisan or nonpartisan commission. In Virginia, a federal court has ruled twice, most recently last month, that Republicans drew the state’s 3rd Congressional District unconstitutionally, packing it with Democratic-leaning minority voters. The effect was virtually to ensure that surrounding heavily white districts would remain safely in Republican hands. (It’s no coincidence that while Democrats have won every statewide race in the commonwealth since 2009, as well as the presidential contests in 2008 and 2012, the GOP controls eight of the state’s 11 congressional seats.) The court ordered that Virginia’s congressional maps be redrawn by Sept. 1, and Mr. McAuliffe has said he will call a special session of the state legislature to do so next month. But GOP lawmakers, afraid that a fairer map will mean the loss of one or more Republican seats in Congress, are playing for time, hoping a higher court will grant them a reprieve. Let’s hope the courts do not. In Maryland, it’s the Democrats, long dominant in Annapolis, who have played unconscionable games with electoral maps for years. A casual glance at the state’s meandering, tortuous 3rd District, which squiggles its way through four sprawling counties, is a testament to that arrogance and a study in political cynicism. Now advocates for redistricting reform in Maryland, heartened by a Supreme Court ruling last month empowering voters to fight back against gerrymandering, are pressing Mr. Hogan to name a task force that would recommend the establishment of a bipartisan or nonpartisan redistricting commission. It’s critical that he do so quickly, so that the next state legislative session, which begins in January, is presented with recommendations before time slips away and voters are once again treated with contempt by their elected representatives. **Read more on this issue:** The Post’s View: Supreme Court’s ruling on gerrymandering is a victory for voters The Post’s View: Federal judges deliver blow to racial gerrymandering in Virginia Stephen J. Farnsworth: How gerrymandering cost Virginia its Medicaid expansion

Virginia House and Senate spar over adjournment, Supreme Court judge

RICHMOND — A day after a bitter standoff over a judicial appointment between Gov. Terry McAuliffe (D) and the Republicans who control the Virginia General Assembly, both sides continued to disagree about the outcome. The House of Delegates stood by its claim that Monday’s special legislative session remained underway Tuesday — even as McAuliffe and Senate Democrats dug in on their belief that it was all over. The Senate’s abrupt vote to adjourn Monday — a legal maneuver intended to keep McAuliffe’s Supreme Court pick on the bench — caught Republicans off guard and sent them scrambling for legal research to challenge the move. By Tuesday, House Republicans were roaring back with state constitution citations that they said backed their position. They also kept the flag atop the House chamber, where it flies only when the legislature is in session. The central flag on the Virginia Capitol also waved, as always. On the west wing, above the Senate chamber, the flagpole was bare. That the House and Senate cannot even agree if they have adjourned shows — as plainly as the lopsided flag display — how off-kilter political discourse in Virginia’s capital city is right now. The governor called a special session of the legislature to draw new congressional districts, as ordered by a federal court. No mapmaking took place. Senators and delegates instead spent the day fighting over who should fill a seat on the Supreme Court of Virginia. They chose no one. And the biggest coup of the session? Abruptly calling it to an end. Led by Senate Democrats and made possible by one Republican defector, the surprise move to adjourn has left the fate of a sitting Supreme Court justice in question and has likely thrown the task of redrawing the commonwealth’s congressional map to a panel of federal judges. The only certainty is that the most baldly partisan brawl of McAuliffe’s governorship remains in full swing. “The language of Article IV, Section 6 of the Constitution of Virginia is clear, unambiguous and emphatic: ‘Neither house shall, without the consent of the other, adjourn to another place, nor for more than three days,’ ” Speaker William J. Howell (R-Stafford) and Senate Majority Leader Thomas K. Norment Jr. (R-James City ) said in a joint statement. “By adjourning . . . without seeking the consent of the Virginia House of Delegates, the Lieutenant Governor and the Democratic leadership in the Senate of Virginia violated the Constitution.” A spokeswoman for McAuliffe (D) did not answer directly the question of whether the legislature remains in session, instead criticizing Republican legislators for not taking the redistricting process more seriously. “It is embarrassing that Republicans, who shrugged off the opportunity to move this process forward, are now engaged in an existential argument about whether or not they are in session,” spokeswoman Christina Nuckols said. Nonetheless, the adjournment dispute could have real consequences for Justice Jane Marum Roush. Republicans saw the session as an opportunity to try to unseat Roush, a highly regarded former Fairfax County Circuit Court judge. Republicans have largely praised Roush’s qualifications but objected to the process: McAuliffe did not consult the Republican leaders of the House or Senate before making the appointment. The legislature normally makes judicial appointments in Virginia, but governors have the power to fill vacancies when the General Assembly is not in session. Those recess appointments expire 30 days after lawmakers convene unless they elect the judges to full terms. After legislators refused to consider Roush for a full, 12-year term Monday, McAuliffe said he would give her a second interim appointment when the first one runs out in September. But he does not have the power to make that recess appointment if the legislature is in session, as the House insists is the case. As the House and Senate dug in Tuesday, new details emerged about the administration’s last-minute discussions about delaying the session that jeopardized Roush. A rank-and-file member of the House said a senior administration official approached him about serving as a go-between for the governor’s office and Howell on the subject of delaying the session. Del. J. Randall Minchew (R-Loudoun) said in an interview with The Post that the official called him Saturday afternoon, and they discussed whether the special session could be called off — at least until partisan tempers had cooled. Minchew declined to identify the official, saying he did not want to break a confidence, but Nuckols later identified her as Suzette Denslow, McAuliffe’s deputy chief of staff. “The basic conservation was, what could be done to relieve some of the tension and to allow for the governor and the legislature to work together in good faith toward electing a justice and dealing with other items of legislation on the docket for review,” Minchew said. During the discussion, Minchew said the two concluded that the best way to do that might be to put off the session. He said he agreed to contact Howell to ask about the possibility that the House, Senate and governor would jointly call for a delay. Nuckols had said in an interview Sunday that the administration never considered calling off the session but said some people had made that suggestion to the governor. On Tuesday, she said Minchew proposed the idea to Denslow. She said Minchew asked, “ ‘Would you consider this?’ and Ms. Denslow said the only way the governor would consider that is if the Republican leaders made that request.” Minchew disputed the notion that he proposed the idea, though once it came up, he said he volunteered to call Howell with it. “The senior administration person called me,” he said. “I did not suggest that idea. We were talking conceptually that’s what would need to happen.” If Howell had been agreeable, Minchew said, the administration official wanted the speaker to call the governor about it. The request is notable given that the fight over the judge turns almost entirely on what Republicans consider McAuliffe’s breach of protocol by failing to consult them. Minchew said he called Howell to alert him about the outreach from the governor’s office. After consulting with other Republican leaders, the speaker decided it was too late. Delegates had canceled family vacations and made reservations here for the session, then just 36 hours away. “He was appreciative that someone had reached out, albeit through a back-channel communication,” Minchew said.

Democrats just got some very good news from the Supreme Court on gerrymandering

Democrats should be cautiously very happy with this.   In other words, the fact that the justices are even going to hear this case suggests that it could result in a ruling on the constitutionality question. And since the court has never struck down a map for partisan gerrymandering, that ruling could move the needle in a way we have never seen before.   Unless. Let's say for the sake of argument that the Supreme Court does rule that partisan gerrymandering is unconstitutional. How much would Democrats stand to gain?  Basically, it took the actual GOP share of seats in states that were big enough to allow for gerrymandering to shift seats, and compared it to various definitions of what you might expect under a neutral map. One method is the “efficiency gap,” which compares how many seats the GOP controls to the raw vote totals. In Florida, Michigan, North Carolina, Ohio and Pennsylvania, this method suggests the GOP gained multiple seats via its redistricting advantage. Other methods showed similar gains in similar states. Democrats gained seats in Maryland and Massachusetts, where they were in control, but their overall gains were nowhere close to the GOP's. In the end, the Brennan analysis suggests the GOP won between 25 and 37 extra seats in the 2012 election because of its redistricting advantage. In 2014, the advantage was smaller — between four and 20 seats — and in 2016 it got bigger again, with a GOP gain of between 16 and 29 seats. And here's the key takeaway: Those shifts were good enough to hand Republicans the majority in 2012 and potentially in 2016, too. Given the GOP had a 234-201 majority after the 2012 election, shifting 25 seats would have given Democrats a 226-209 majority. And that's Brennan's most GOP-friendly estimate; if 37 seats flipped, Democrats would have held a 238-197 majority. The GOP would have held on to its majorities in 2014 regardless, according to the estimates. But in 2016, that 16-to-29-seat gain for the GOP through redistricting may have accounted for its majority. If 23 or fewer seats shifted because of the GOP's redistricting advantage, the GOP would have held its majority. If 24 or more shifted, Democrats would have taken control. But that doesn't mean the Supreme Court is about to hand the keys to the U.S. House back to Democrats.  And all of this comes with a couple of big caveats. The first is that we don't know if the court will actually strike down partisan gerrymandering writ large or just rule narrowly on the Wisconsin case. Barnes notes a significant aspect of the court's announcement Monday: The second is that even a pretty sweeping decision won't suddenly result in those idealized, hypothetical neutral maps. It will certainly give Republicans some pause in drawing pretty nakedly politically advantageous maps and make it easier for courts to strike them down. But politicians are clever when it comes to self-preservation and partisanship, and the whoever is in charge will undoubtedly find other justifications for maps that appear to be partisan gerrymanders. In other words, it's unlikely that the court will do something that suddenly shifts 10, 20 or 30 or more seats toward Democrats — either in 2018 or after the next census and redistricting process. But basically any movement away from partisan gerrymandering will accrue to Democrats' benefit. And given that they've been in the minority since after the 2010 election and probably face another grim redistricting process in 2021 and 2022, that's got to be encouraging.

Va. Republicans take redistricting fight to the Supreme Court

The Supreme Court on Monday takes up a long-running political fight about whether Virginia lawmakers redrew the state’s congressional map to protect the commonwealth’s lone African American congressman — or to make sure he was not joined by a second. The court will consider whether Republican lawmakers packed African American voters into Democratic Rep. Robert C. “Bobby” Scott’s district to comply with the Voting Rights Act or to make surrounding districts more hospitable to white candidates. A lower court ruled against the legislature last year, and the judges then created a second district designed for a black candidate. Voters in the state’s congressional primary go to the polls in June — about when the justices would seem likely to rule on this new plan. The case presents what has become familiar litigation over how states divide up their residents into congressional districts, which is essential to the country’s politics and crucial to political parties. But state lawmakers charged with the task compare it to walking a tightrope, or crossing a minefield, or preparing a meal for Goldilocks. Under the Supreme Court’s somewhat hazy guidance, state lawmakers must consider the race of those who populate each district to ensure minorities have a fair shot at being represented. But lawmakers fail if they let race become the predominate issue in drawing the lines. “You can’t let the porridge be too hot, you can’t let the porridge be too cold,” said former Virginia delegate Bill Janis (R-Glen Allen), who devised the commonwealth’s congressional map. “But they won’t tell us what temperature the porridge has to be.” The Supreme Court will take another shot at that in the Virginia case. A panel of federal judges said the commonwealth’s plan veered from partisan gerrymandering aimed at protecting incumbents — for which the Supreme Court has shown a high tolerance — into racial gerrymandering, which the Constitution forbids. In a sense, said Nathaniel Persily, an election-law expert at Stanford Law School, “the Voting Rights Act is on a collision course with the Constitution.” The questions for Virginia and other states are, he said, “how much can you think about race in construction of districts, and is the use of race in aid of partisan gerrymandering problematic?” The line is increasingly elusive, especially across the South, where blacks are presumed to be Democrats and whites are increasingly Republican. Because of the high stakes, redistricting plans in more than three-quarters of the states have been challenged in court. But wherever the line is located, Virginia’s Republican-led General Assembly crossed it, according to an amicus brief to the Supreme Court filed by the Campaign Legal Center and League of Women Voters, among others. The legislature’s plan “sanctions the impermissible use of race as a proxy to achieve partisan gains,” the groups wrote. Janis, along with current and past Republican congressmen who are challenging the lower court’s decision, contends the plan adopted after the 2010 Census simply preserved the status quo by retaining the cores of the state’s existing congressional districts. To meet obligations under the Voting Rights Act to protect minority-majority districts, it increased the percentage of the black voting-age population in the 3rd District in southeastern Virginia, long represented by Scott. “Core preservation and incumbency protection were . . . the most important neutral principles and consistently applied to all districts,” Washington lawyer Michael A. Carvin, representing the Republicans, told the Supreme Court in a brief. The redrawing of Scott’s district “was neither race-based nor a departure from neutral principles,” Carvin wrote. But Democrats said that just a look at the “bizarrely shaped district” is enough to show other motives. The district started north of Richmond, slid down the north shore of the James River, jumped over James City and formed a horseshoe around Newport News. That was only the beginning, as it included some towns and skipped others, until the black voting-age population of the district reached 56 percent. Two residents of the district, Gloria Personhuballah and James Farkas, filed suit. They said the Republican-controlled General Assembly was not protecting Scott, who won his last race with more than 80 percent of the vote. Instead, they charged, legislators were making it easier to elect whites in surrounding areas by packing African Americans into Scott’s district. Drawing legislative and congressional districts is key to a party’s continued dominance in a state. Republicans controlled Virginia when it redrew congressional and legislative maps after the 2010 Census. The party still controls the General Assembly, and eight of its 11 members of Congress are Republicans. This is in a state that hasn’t elected a Republican to statewide office since 2009, where both U.S. senators are Democrats and where voters twice chose President Obama. The judicial panel, on a 2-to-1 vote, found fault with the General Assembly’s plan because it required that at least 55 percent of the voting-age population in Scott’s district be black. The prevailing judges said there was no evidence that such a high percentage was needed to comply with the Voting Rights Act and that setting this figure was contrary to a Supreme Court decision last term that sided with challengers to Alabama’s legislative redistricting. The Supreme Court’s 5-to-4 ruling in the Alabama case said legislatures should not set arbitrary minority population goals for districts but instead look at what makeup is necessary to preserve the minority’s ability to elect a candidate of its choice. This decision is one of several reasons to think Virginia Republicans have an uphill battle at the Supreme Court. For one, there is a question about whether they should even be there. The Obama administration, backing Personhuballah and Farkas, says that because Virginia did not appeal the lower court’s decision, it should stand. The Republican lawmakers do not have standing to challenge the ruling simply because it changes their districts, Solicitor General Donald B. Verrilli Jr. told the court in a brief. The congressmen claim they are harmed because a new plan “will move ‘unfavorable Democratic voters’ into the districts they represent, thereby decreasing their chances of reelection,” Verrilli’s brief states. The court should “reaffirm that voters in our democratic system choose their representatives — not the other way around.” Another bad sign for the challengers is that the justices turned down Carvin’s request to put a hold on the lower court’s plan to impose a new congressional map. The court’s action followed the General Assembly’s failure to provide its own remedy. Carvin argued that it would be wrong to allow the primary election to go forward when there is a possibility the new districts would be thrown out. The new map shows changes in line-drawing can have a dramatic impact on a state’s politics. The judges’ plan drastically reduced the number of black voters in Scott’s district, which is still considered safe for him. It increased the number of black voters in the 4th District, which is represented by Rep. J. Randy Forbes (R). So, Forbes announced he will instead run for the 2nd District seat being vacated by Rep. Scott Rigell (R). The newly drawn 4th District is a better fit for state Sen. A. Donald McEachin (D-Henrico), an African American who is chairman of the Senate Democratic Caucus and ran for attorney general in 2001. McEachin filed paperwork to run for the seat and wasted no time in kicking off his campaign three days after the legislative session adjourned. If the Supreme Court upholds the lower court’s decision — and even a tie among the eight justices would do that — law professor Persily said Virginia might provide a real-life answer to theoretical musings about how changing district lines affects results. “The election is going to prove who’s right,” he said.

Va. lawmakers get more time to redraw districts

RICHMOND — A federal court on Monday gave the Virginia General Assembly more time to redraw the state’s congressional map, which the panel ruled unconstitutional for diluting the influence of African American voters. The U.S. District Court for the Eastern District of Virginia moved the April 1 deadline to either Sept. 1 or 60 days after the U.S. Supreme Court rules on a pending appeal from congressional Republicans, whichever comes first. The ruling favors the approach taken by House Speaker William J. Howell (R-Stafford), who  said Friday that he would not redraw the lines until the appeal was decided. Gov. Terry McAuliffe (D) disagreed and said last week that “running out the clock” unnecessarily confuses what, he said, should be a straightforward process. “The governor remains ready to work with the General Assembly to pass a fair, nonpartisan congressional map that complies with the court’s standing ruling on this issue,” McAuliffe’s spokesman, Brian Coy, said Monday. Attorney General Mark R. Herring (D) had favored slightly extending the April 1 deadline to April 15 to prevent state taxpayers from incurring the $41,000-per-day cost of bringing lawmakers back to Richmond to deliberate on new maps. The judges were unmoved by that argument: “Even if a special session will be required, that expense is small when measured against the likely expense of going forward with the case in its current posture, because the parties will incur legal fees and litigation costs and expenses.” In the six-page ruling, the court said that circumstances have changed since the judges set the initial deadline, because the U.S. Supreme Court heard arguments late last year in a similar case in Alabama, the resolution of which could affect the Virginia case. “Under these changed and somewhat unusual circumstances, we conclude that it is wasteful for the General Assembly to devise a redistricting plan without the views and instructions of the Supreme Court,” the ruling says. The lower court’s decision focused on the state’s lone black-majority district — the 3rd Congressional District, which stretches from Richmond to Hampton Roads and is represented by Robert C. “Bobby” Scott (D). The decision tossed out Virginia’s congressional maps because they concentrate African American voters into a single district at the expense of their influence elsewhere. The decision also delivered another victory for Democratic plaintiffs hoping to break up black-majority districts, which they say have been drawn by Republicans who have used the Voting Rights Act to dilute the influence of minority voters. Shortly after the decision, the same law firm that challenged the congressional maps filed a federal suit challenging the boundaries of a dozen House of Delegates districts on similar grounds. Both cases came on the heels of a 2013 Supreme Court decision invalidating a significant provision of the Voting Rights Act.

Former Md. governor Martin O’Malley deposed in redistricting lawsuit

Former Maryland governor Martin O’Malley (D) was deposed Wednesday by attorneys in a lawsuit challenging the constitutionality of the state’s 2011 redistricting process, which O’Malley oversaw. The lawyers deposed Senate President Thomas V. Mike Miller Jr. (D-Calvert) on Monday and House Speaker Michael E. Busch (D-Anne Arundel) last week. Both lawmakers played key roles in the redistricting process. They and O’Malley tried unsuccessfully to avoid turning over records and testifying in the lawsuit, citing legislative and executive privilege. U.S. District Judge James K. Bredar ruled in January that the ability to discover evidence “lies at the heart of this case” and said the legislature’s direct role in the redistricting process “supports overcoming the legislative privilege.” The plaintiffs in the lawsuit, _Benisek v. Lamone_ , allege that state officials redrew Maryland’s congressional districts based on party registration and voting histories, violating the First Amendment by making it difficult for people of a particular political persuasion to elect their preferred representative. Specifically, they claim that Maryland’s 6th Congressional District was manipulated to unseat then-Rep. Roscoe G. Bartlett (R), a 10-term incumbent who lost to Democrat John Delaney in 2012. The plaintiffs are asking a three-judge panel of the U.S. District Court in Maryland to prevent the state from enforcing its current congressional map. Their attorneys say they expect a bench trial this summer and a decision by early fall, with the ruling potentially requiring the state to redraw voting boundaries before the 2018 primary elections.

Florida legislators have two weeks to redraw the state’s gerrymandered districts. Here’s how that might play out.

Terry Lewis, the Florida Circuit Court judge who last month issued a strongly- worded ruling voiding the state's congressional districts, on Friday ordered the legislature to redraw the state's Congressional districts by Aug. 15.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday Recognizing the difficulties in turning around a redrawn map so quickly, Lewis nevertheless argues that the alternative, doing nothing, would be worse: "To do nothing, when you could, means that you lessen the ability of many citizens to elect the representative of their choice -- which is the effect of political gerrymandered districts. You must tell them that even though they have been deprived of the equal right of having a say in who represents their interests in Congress for two years, they must wait another two." Lewis points to a precedent in the case law, _Busbee v. Smith_ in 1982. In that case, the state of Georgia failed to draw two Ccongressional districts, violating the Voting Rights Act. A federal court ruled in that case that under these "exigent circumstances" the state's federal elections could be moved to give the state time to draw up compliant districts.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday "In this case, as in _Busbee_ , the State finds itself facing elections under an unlawful redistricting plan," Lewis writes. "It would seem that a finding of exigent circumstances in this case is consistent with the _Busbee_ court's interpretation of sec. 7 and 8, justifying a later election date for selected districts."    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday Lewis notes that the Florida legislature has shown itself capable of quickly drawing up district maps in the past, and that it likely already has alternative maps that were considered by its members. The ruling orders new districts drawn up by noon Aug. 15, as well as a proposed schedule for special elections to fill those districts. Practically speaking, the ruling has the potential to upend the Florida political landscape. Lewis's original ruling found two districts in violation of the state's Constitution and needing to be redrawn, due to partisan gerrymandering. But because congressional districts need to have equal populations, it can be difficult to redraw one or two without redrawing the majority of the state.

Two reading lessons from the Supreme Court

The Supreme Court frequently ponders arcane matters. Next week, however, in oral arguments concerning two cases, the justices’ task will be to teach remedial reading to Congress and to Arizona. On Wednesday, the justices will consider this: Did Congress mean what it said when, with patently coercive intent, it stipulated in the Affordable Care Act that subsidies for persons compelled to purchase health insurance can be disbursed only through exchanges “established by the state”? If so, billions have been illegally disbursed through federal exchanges in the 34 states that resisted the ACA’s pressure to establish exchanges. On Monday, however, the court will consider whether the Constitution’s Framers meant what they said when, in the election clause, they assigned an important function to each state’s “legislature.” This clause says: “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.” Arizona’s Independent Redistricting Commission (IRC) supposedly is a better idea. It was created by a state constitutional amendment passed by voter initiative. The commission is composed of five members. Four are chosen by the majority and minority leaders of the two parties in the two legislative chambers — but these leaders must pick from a list of just 25 (of the 4.9 million Arizonans of voting age) selected by another state commission, one for appellate court appointments. No member of the legislature may serve on the IRC. It draws congressional district maps that are not subject even to such checks as a gubernatorial veto or referendum. The legislature’s role is reduced to submitting nonbinding recommendations to the IRC — “a function without consequence,” as the legislature says in its brief to the court. The question is whether this process, which reduces the Arizona legislature’s role to the vanishing point, complies with the Constitution’s mandate that the “manner” of elections shall be “prescribed” by the state’s legislature. The Supreme Court’s elections clause jurisprudence permits limited checks on the legislature’s redistricting prerogative, such as a governor’s veto. It has, however, never authorized a state to divest its legislature of all meaningful power to prescribe district lines. Clearly the clause restricts states’ abilities to do what the IRC does — nullify the Arizona legislature’s primacy in the redistricting process. The “I” in the IRC denotes independence from the legislature. To the suit brought by Arizona’s legislature, the IRC’s limp response is that the elections clause uses “legislature” to denote any process, such as a referendum, that creates any entity, such as the IRC, that produces binding edicts. Surely, however, in writing the elections clause the Framers used the word “legislature” as it was and still is generally understood, to mean the representative body that makes a state’s laws. Arizona cannot strip its legislature of a power that flows to it from the U.S. Constitution. Were it not for an unfortunate 19th-century decision, the court could rule that Arizona’s redistricting arrangement also violates the guarantee clause, which says “the United States shall guarantee to every state in the Union a republican form of government.” To the Framers, who were economical and precise with words, this clause had clear content. They believed that in a republic, the involvement of the people in governance is indirect and mediated but real. The essence of republicanism is the principle of representation: The people do not decide questions, they decide who will decide — their elected representatives, such as state legislatures. In 1849, however, the court held that the meaning of the guarantee clause is non-justiciable. That is, its meaning is a “political question” to be determined by Congress rather than courts. But Clint Bolick of Arizona’s Goldwater Institute says that here “non-justiciable” means that the clause “is written in disappearing ink.” So, the guarantee clause is less a guarantee than a suggestion. This is another example of what is lost when judicial modesty becomes dereliction of the judicial duty to judge. It is, Bolick says, arguable that the guarantee clause is inapplicable in the Arizona case because the clause is “an affirmative obligation on the national government rather than a restriction on the states. But because of the judicial abdication 166 years ago, we never get that far in the argument.” So the Arizona case is another legal log fueling the crackling fire of the conservative argument for a vigorously engaged rather than passive judiciary. Which is another reason not to wait until Wednesday to watch the court. _Read more fromGeorge F. Will’s archive or follow him on Facebook._ **Read more about this topic:** George F. Will: Education is the business of the states E.J. Dionne Jr.: Taking Obamacare for granted

It’s time to redraw Maryland

In upholding the constitutionality of Arizona’s independent redistricting commission, the Supreme Court opened the door for states to take the all- important task of drawing congressional districts out of the hands of partisan politicians. Maryland, whose current congressional districts look like a bad jigsaw puzzle, ought to seize the opportunity. Maryland’s 3rd District is often cited as one of the most gerrymandered in the nation. My parents and my fiancee’s parents both live in the 3rd District, even though the former live in Baltimore and the latter live nearly an hour away in eastern Montgomery County. The other districts aren’t much better. Does Baltimore, which is small enough to fit within a single district itself, need to be split among three congressional districts? Why is part of Carroll County in the same district as the entire Eastern Shore? And who thought it was a bright idea to put Rockville in a district with Western Maryland? This is embarrassing. The problem with Maryland’s districts isn’t merely aesthetic. In the last congressional election, Republicans won 41 percent of the statewide House vote. Yet they won only 12.5 percent of House seats — one of Maryland’s eight. It’s a gross perversion of democracy when elected representative choose who gets to vote for them rather than voters choosing who gets to represent them. And I say this as a member of the Democratic Party, which benefits from the existing district boundaries. The redistricting panel Maryland Gov. Larry Hogan (R) announced Thursday is a good start. Independent commissions such as Arizona’s seek to fix the problem by putting the responsibility for drawing districts in the hands of people less politically motivated. But the best solution might be simply to limit the role of people in the process altogether. Laws placing strict limits on how the districts can be drawn would minimize the opportunities for gerrymandering, regardless of who is in charge of drawing. Here are two simple rules that, in Maryland, would make a big difference: ● A county with fewer than 250,000 people must reside entirely within a single district. ● An incorporated city may not be split among multiple districts. Those rules would still offer flexibility as to how the districts are drawn. But they would cut down the range of options enough to prevent some of the most egregious gerrymandering practices. Under these rules, only five counties could be split among multiple districts: Montgomery, Prince George’s, Baltimore, Anne Arundel and Howard. Baltimore City would be in one district. These rules also would mean no more sticking Aberdeen and Havre de Grace in a district with parts of Baltimore City, Howard and Anne Arundel counties. Or putting northern Carroll County with the Eastern Shore. Or splitting Frederick County in half so that more Democratic voters from Montgomery County can be added to western Maryland. As an example, here’s a set of districts that would satisfy the rules: District 1: Worcester, Wicomico, Somerset, Dorchester, Talbot, Caroline and Queen Anne’s counties and three-quarters of Anne Arundel County; District 2: Kent, Cecil and Harford counties and slightly less than half of Baltimore County; District 3: Baltimore City, plus one-eighth of Baltimore County; District 4: Half of Prince George’s County and one-quarter of Montgomery County; District 5: St. Mary’s, Charles and Calvert counties and half of Prince George’s County; District 6: Garrett, Allegany, Washington and Frederick counties and one-quarter of Montgomery County; District 7: Half of Montgomery County and three-quarters of Howard County; District 8: Carroll County, one-quarter of Anne Arundel County, one-quarter of Howard County and the rest of Baltimore County. That’s just one of many possibilities, and it might not be the best. But it’s a lot better than what we’ve got now. Let’s call on the legislature and our new governor to make it a reality and make our state an example of democracy at its best. **Read more about this issue:** Jon Husted: From Ohio, lessons in redistricting reform The Post’s View: Election reform is on the line at the Supreme Court The Post’s View: Vote against Maryland redistricting

We need an end run around gerrymandering

Regarding the March 28 editorial “On the wrong side in Maryland”: It’s time to do an end run around Democrats. We need an election law that will apply to Republicans in Virginia, Democrats in Maryland and legislators in other states who continue to obstruct redistricting reform. Sufficient words have been written about the harm of gerrymandering. Little exists in the public eye about the dirty details of actually drawing better maps. Academics agree that the process is complex and that no one standard, such as compactness, will produce maps that don’t perpetuate some of the excesses of current maps. One example is housing patterns that result in unintentional gerrymandering of minorities because of clustering in compact areas. Arizona’s Supreme Court and courts in Florida, North Carolina and elsewhere have affirmed fairness as one of the standards that must be considered in redrawn maps. While defining criteria for fairness is not easy, at least one piece of software exists today that defines standards for fairness and draws districts accordingly. The software, Auto-Redistrict, is free and open to use by anyone. Maps drawn using this program produce more competitive districts and minimize county and municipal splits and wasted votes. Fairness can be programmed today. Let’s do an end run around the obstructionists and promote an election law that will apply to all states and hold up in the courts. ****Irma Shainberg Sheon** , Silver Spring** **I agree with** the March 28 editorial “On the wrong side in Maryland.” However, I’m sad to say, similar to other situations in which the benefits accrue to a few (legislators) and the costs are diffuse (in this case, to the voters), it is highly unlikely that anything will happen because of the cost- benefit imbalance. We need some group, such as Common Cause or the League of Women Voters, to decide to make this a top priority. Even then, it may be difficult. This situation is not at all desirable, but unless citizens decide to be single-issue voters for at least one cycle, it isn’t likely to be fixed. Also, I’m sad to say, the Supreme Court has decided that it is too political an issue for the justices to try to solve. ****John J. Landers** , Bethesda** **Unlike Democrat Paul Sundell** , whose March 30 letter, “I’ll vote Republican until Maryland ends gerrymandering,” addressed unfairly drawn political districts, as a Republican, I will vote for the GOP’s nominees for national offices. Like Mr. Sundell, I shall vote for Republicans to fill most state offices. Gerrymandering in Maryland has helped place a hegemonic legion of Democrats in the legislature who, at best, relative to the total size of the state, represent only small geographic regions where progressive Democrats and union-driven state and county government employees’ interests are heavily concentrated. And Mr. Sundell and I agree that Maryland desperately needs a statewide plan to check the power grabs by either political party against its citizens. ****John K. Lambert** , Silver Spring **

As voter rights cases churn through courts, rights are uncertain. But confusion is guaranteed.

In three states, however, those laws were struck down or weakened: But these rulings are not the end of the story.     Wisconsin, like North Carolina, could end up taking its case to the Supreme Court on an emergency basis. With the death of Justice Antonin Scalia, the court is divided 4-4 on ideological grounds, and that could mean a split over how to deal with these voting cases. A tie leaves the lower court ruling standing. The bottom line is that there’s still great uncertainty about the rules for voting in these key states. The longer this goes on, the harder it will be not just for those who run the election but for voters looking forward to participating in November’s key election.

We can redistrict without gerrymandering

The analysis of the effect of gerrymandering in “Where political lines are, and aren’t, being drawn” [news, May 16] offered another strong argument that it is time for this archaic system of redistricting state maps to go. We need to remove partisanship from the process. Tough as this seems, there is good news. Some states have come up with alternate plans. California’s independent commission is up and running. Iowa adopted a unique plan that satisfies its voters. Arizona, Texas and Florida have survived court review of various proposals. Computer software can draw maps with equal population, compactness and respect for geographically relevant features. It is time to shift focus from what is broken to what can be fixed. The public must be involved if we are to get reform. ****Irma Shainberg Sheon** , Silver Spring**

Where the race is rigged

Democrats in Annapolis and Republicans in Richmond have at least one thing in common with disgraced cyclist Lance Armstrong: using PEDs to rig races. Armstrong used performance-enhancing drugs to cheat his way to seven consecutive Tour de France wins. The two largest political parties have used gerrymandering to create performance-enhancing districts that rig elections for their congressional and legislative nominees. Maryland’s 3rd Congressional District staggers like a drunken sailor from Annapolis to Towson to Olney, dividing neighborhood after neighborhood. The 6th District, drawn by Democrats to defeat U.S. Rep. Roscoe Bartlett (R) , and the 8th District slice communities across Montgomery and Frederick counties. Used as pawns, more than 60 percent of Montgomery’s residents were moved to a different congressional district in 2011. Appalled by his party’s gerrymander, Bethesda resident and American University law school student Steve Shapiro sued Maryland. In 2015, after years of hard work, he and his attorney, Michael Kimberly, persuaded the Supreme Court to unanimously order that a three-judge panel review whether Maryland’s gerrymander, which looks like blood spatter from a crime scene, violates the First Amendment by intentionally depriving a group of voters — in this case, Republicans in Maryland’s 6th District — of a voice in the House of Representatives because of their party affiliation. In August, the panel ruled that the case has merit and can proceed. The results could sink gerrymandering throughout the country. In Virginia, Republicans drew performance-enhancing congressional districts that rig most elections for their nominees by packing registered Democrats into as few districts as possible. Republicans hold eight of Virginia’s 11 House seats, even though Democrats consistently win statewide elections. After Democrats sued, a three-judge panel redrew the redistricting map this year to give African American voters a better chance to have a potentially decisive impact in two congressional districts rather than just one. Democrats won both districts on Nov. 8. In no small part because of gerrymandering, low-turnout primaries rather than higher-turnout general elections are the key contests in an overwhelming majority of congressional and legislative elections. Gerrymandering cheats the public of legislators who must appeal to an ideologically broad group of people to get elected and creates incentives for officials to legislate as if only primary voters matter, especially in states with closed primaries where unaffiliated voters — more than 140,000 in Montgomery County alone! — are prohibited from voting in all but the nonpartisan races. Gerrymandering exacerbates political polarization, contributes to gridlock in Congress and undermines competition in legislative seats as well. In the 2014 general election for Virginia state House and state Senate, most incumbents faced no major-party opponent. But gerrymandering isn’t inevitable; California has eliminated it. In 2008 and 2010, California voters used their initiative power to petition to the ballot and approve an independent redistricting commission that excludes elected officials from any decision-making role in redrawing congressional and legislative boundaries. California’s districts are now compact and aren’t drawn to rig elections for one party or for incumbents. Maryland Gov. Larry Hogan (R), the first governor in the state elected using public financing, fulfilled his 2014 campaign pledge to tackle gerrymandering by proposing an independent redistricting commission. Democrats in Annapolis promptly deep-sixed the bill. Since a September 2015 Goucher Poll of Marylanders found that 73 percent support an independent redistricting commission, Hogan’s approval ratings will likely increase as his championship of political reform becomes better known. In 2011, few Democratic legislators in Annapolis broke party ranks and voted against the nation’s worst congressional gerrymander; no Republican state senators in Richmond opposed the gerrymander there. Unlike in California, voters in Maryland and Virginia can’t initiate a ballot measure to establish a new law. Given that reality — and the difficulty of persuading legislators who benefit from gerrymandering to remove themselves from the process — court-imposed congressional redistricting standards, which Shapiro’s case may bring about, are needed to prevent legislators in Maryland, Virginia and other states from creating “gerry-rigged” districts again after the 2020 Census. Eventually, Lance Armstrong was held accountable for using performance-enhancing drugs to rig races. Voters should hold state officials accountable who undermine democracy by approving performance-enhancing districts to rig elections. **Read more about this issue:** Julian E. Zelizer: The power that gerrymandering has brought to Republicans The Post’s View: It’s up to voters to end gerrymandering Rob Richie and Austin Plier: Maryland can’t act alone to end gerrymandering

The Supreme Court is in no hurry to protect voters from gerrymandering

When it comes to assuring fair elections, the Supreme Court has a new message: Voters can wait. Its recently completed term featured two key redistricting votes in which the court turned away temporary relief for voters as the court considered each case — not because these voters would eventually lose, but because the justices refused to put voters’ interests first. And these rulings build upon the court’s troubling “Purcell principle,” the idea that courts should not make changes to voting rules close to the election, even if those changes are necessary to protect voting rights.       They say justice delayed is justice denied. If the Supreme Court really cared about voting rights in these election cases, it would be less willing to tolerate delay in protecting voters’ rights.

Election year begins Monday at the Supreme Court

Iowa is history and New Hampshire and South Carolina are about to have their say. But election year at the Supreme Court begins Monday. In a rare afternoon session only a month after accepting the case, the court will hear a Texas redistricting dispute that is complicated in every way except its bottom line: four new congressional seats that have the potential to decide which party controls the House of Representatives. But it is only the first of the cases that will call upon the court to get involved in partisan electoral fights or revisit campaign finance decisions. On the way are challenges to the Voting Rights Act from jurisdictions that say its restrictions are outdated. The Department of Justice is promising to take a look at voter ID laws that Attorney General Eric H. Holder Jr. said hold the potential of disenfranchising the poor and minorities. And an appeal is on the way from a recent decision by the Montana Supreme Court upholding a state ban on corporate electoral spending. Those who challenged the law said the decision directly conflicts with the Supreme Court’s decision in _Citizens United v. Federal Election Commission_ , which held that corporations and unions were free to spend on behalf of candidates. But first, Texas. The state’s congressional delegation expanded from 32 to 36 because its population grew by a phenomenal 4 million people in the last decade. Now, six federal judges in two courts, in addition to the nine justices, are analyzing how Texas legislators redrew the congressional and state legislative districts to accommodate that growth. More than 65 percent of the increase was in the state’s Hispanic population. The maps drawn by the state’s Republican-dominated legislature were signed by Gov. Rick Perry (R.) But because of past discrimination, Texas is covered by Section 5 of the Voting Rights Act, which means any electoral changes must be approved by either the Department of Justice or a panel of federal judges in Washington. And while the case at the high court does not directly challenge Section 5, how the justices dispose of the controversy could have much to say about the continued viability of the controversial requirement. Conservatives on the court expressed great skepticism about the constitutionality of Section 5 in 2009, and it seems only a matter of time before the court considers it again. The Obama administration has made it clear it will aggressively defend Section 5, which was reauthorized by Congress in 2006. Last month, Holder called it a “critical tool to combat discrimination and safeguard the right to vote.” Until that showdown comes, the groups challenging Texas’s plans say the state is asking the court to provide a way around Section 5’s requirement that electoral maps be “pre-cleared.” A three-judge panel in Washington declined to quickly approve the legislatively drawn plan, and seems unlikely to finish its work in time for the state’s primaries, originally scheduled for March and now slated for April. In the meantime, a three-judge panel in San Antonio drew maps independent of the legislature. Texas has come to the Supreme Court to keep those maps from being used. Texas Attorney General Greg Abbott (R) said in an interview last week that the state wants the Supreme Court to defer to the “elected policymakers of the state of Texas” and use the legislatively drawn plans on an “interim” basis for the 2012 election. Nina Perales, litigation director for the Mexican American Legal Defense and Education Fund, said such a request “flips Section 5 completely on its head.” The law requires states to prove their electoral changes do not dilute minority voting rights _before_ they can be used, she said. Texas’s request is an “attempt to get one more (election) cycle” before having to acknowledge the burgeoning minority population that has fueled the state’s growth, she said. The Obama administration, supporting the challengers, told the court it should allow the plans drawn by the San Antonio court to be used for this cycle. But that’s exactly what the justices stopped by accepting Texas’ challenge. One compromise might be to instruct the San Antonio court to rewrite its maps to give more sway to the plans passed by the state legislature. The partisan implications of the Texas case remain prominently in the background. Political analysts have said that the court-drawn congressional map would increase Democratic chances in three of the four new districts. “We believe the plaintiffs are doing this for partisan political purposes,” Abbott said in the interview, saying their objections would put Hispanic Republicans at risk. But Jose Garza, who will argue the case for the Latino groups, denied that. Discrimination against Hispanics in Texas, he said, has occurred under both Republican and Democratic administrations. “Latinos are expressing a desire to be part of the process,” he said. Read more from PostPolitics: Romney takes fire in final N.H. debate Fact checking the N.H. debates Supreme Court case tests FCC’s power over TV indecency Tony Blankley, author and former Gingrich press secretary, dies

Fight over Gov. McAuliffe’s court pick likely will push redistricting aside

RICHMOND — Most of the legislators ordered back to the Capitol to revamp Virginia’s congressional map will arrive Monday bent on remaking the state’s highest court instead. A federal court ordered the General Assembly to draw a new map by Sept. 1 to replace one deemed to have been illegally gerrymandered along racial lines. But virtually no one expects the special session to produce one. Any plan agreeable to the Republican-led House and Senate is widely expected to be vetoed by Gov. Terry McAuliffe (D), which would prompt a panel of judges to take over the job. “I have not talked to anybody in either party that doesn’t think this thing is going to wind up with a three-judge panel drawing the district,” Senate Minority Leader Richard L. Saslaw (D-Fairfax) said. “I don’t even know why we’re even going to Richmond.” Republicans did not see a reason for the session, either — until McAuliffe inadvertently gave them one that they found far more appealing than mapmaking. By appointing Fairfax Circuit Court Judge Jane Marum Roush to the state Supreme Court two weeks after he called the special session, McAuliffe handed Republicans a chance to unseat her and one-up him. Republicans appear to have the muscle to remove Roush, even if, with the potential defection of one or two moderate Senate Republicans, they fall short of their goal of installing Virginia Court of Appeals Judge Rossie D. Alston Jr. in her place. The removal of a sitting Supreme Court justice would be unprecedented in modern Virginia history and represent a new low in relations between McAuliffe and Republican leaders. The General Assembly usually elects judges, but governors may fill vacancies when the legislature is not in session, as McAuliffe did in Roush’s case July 27. Those recess appointments expire 30 days after the legislature comes back into session unless members affirm the choice by permanently electing the judges to their posts. Had McAuliffe not called the special session, that clock would not have started ticking until the legislature convened for its regular session in January. Republicans still could have moved to oust Roush then, but it would have been tougher at that point because she would have been on the bench for months. Realizing that McAuliffe had endangered his court pick by calling legislators back to Richmond, his top staff searched for ways to cancel the session after he had formally ordered it in July, according to four people with direct knowledge of the matter. That, too, would have been a first in Virginia, although governors of other states have called off special sessions. McAuliffe ultimately decided against canceling, according to the four, who spoke on the condition of anonymity to discuss private deliberations. Christina Nuckols, a spokeswoman for McAuliffe, did not dispute that people suggested canceling the session, but she said that McAuliffe never pursued that option. “The governor received advice from a variety of individuals and certainly appreciates and listens to all of that advice, but he never even made the slightest gesture in that direction,” she said. “It’s extraordinarily regrettable that Republicans would attempt to fire a highly qualified justice with overwhelming support in the legal community and across the commonwealth,” she added. “The governor continues to call for full and fair consideration of this fine justice.” McAuliffe and Republican leaders have fought before, most bitterly over the governor’s thwarted effort to expand Medicaid under the Affordable Care Act. But there were differences in policy and ideology behind that battle. When it comes to the Supreme Court, Republicans have no beef with McAuliffe’s pick. They express a preference for Alston, whose résumé includes a stint with a right-to-work group. But their chief issue is one of protocol: McAuliffe did not consult with House Speaker William J. Howell (R-Stafford) or Senate Majority Leader Thomas K. Norment Jr. (R-James City) ahead of time, nor even give them a courtesy call once he had made his choice. The perceived misstep drew a public rebuke from former governor L. Douglas Wilder (D) and private criticism from several fellow Democrats. McAuliffe has dismissed the GOP’s complaints as a “political temper tantrum.” The administration acknowledges that it did not contact GOP leaders but has said that it was no secret Roush’s appointment was in the works and that Republicans voiced no objections. Nuckols said that Roush called Howell and Norment while she was still one of several candidates in the mix. Howell spoke with Roush in May and said that he had heard good things about her, that Del. David B. Albo (R-Fairfax) would submit a letter on her behalf and that the appointment was the governor’s prerogative, Nuckols said. Howell does not recall the phone call, said his spokesman, Matthew Moran. Even if it happened, Moran said, the point is that the administration never discussed the appointment with Howell. As for Norment, Nuckols said that Roush phoned the majority leader while she was being considered for the job and again on the day of her appointment but that he did not return either call. Norment’s spokesman, Jeff Ryer, said that Norment does not remember receiving the first call and admits to ignoring the second. “The calls customarily come beforehand, and they customarily come from the governor,” Ryer said. The administration did give a heads-up to Albo and another Republican legislator who had advocated for Roush’s appointment, inviting them to be present when McAuliffe announced Roush as his choice. Albo, chairman of the House Courts of Justice Committee, attended. The other was Del. Gregory D. Habeeb (R-Salem), a lawyer who has long been impressed with Roush and encouraged her to seek a spot on the state Supreme Court. A few days before the announcement, McAuliffe’s chief of staff, Paul Reagan, called Habeeb to offer the invitation. Just returning from a vacation, Habeeb was unable to attend but told Reagan that the governor had made a great choice. Habeeb said he also cautioned Reagan to get Republican leaders on board. “I said, ‘I hope you’ve gotten buy-in,’ and the answer was, ‘We’re good,’ ” Habeeb said. Reagan said he recalled only that Habeeb “expressed very positive feelings about Justice Roush. I thought that was very good.” Jenna Portnoy contributed to this report.

Everyone in Md. says they want redistricting reform. Here’s why it won’t happen.

Maryland’s elected leaders seem unlikely to negotiate a deal this year to end partisan gerrymandering, despite overwhelming public support for redistricting reform, pressure from citizen groups to reach a compromise, and a federal lawsuit that could force the state to overhaul its voting maps for upcoming elections. More than two weeks after Gov. Larry Hogan (R) vetoed plans to pursue a regional redistricting compact and insisted that Maryland should act alone, the state’s top Republican and Democratic officials remain sharply divided on the issue and have made no efforts to merge their proposals. “Pulling these parties together could be the trickiest piece,” said Jennifer Bevan-Dangel, executive director of Common Cause Maryland, which is urging the two sides to meet this summer and hammer out an agreement before next year’s legislative session. A February Goucher College poll showed that 73 percent of Marylanders would prefer that an independent commission determine the state’s voting districts, with overwhelming support for the concept across party lines. Only 20 percent said they want elected officials to continue forming the districts, which have been called among the most convoluted in the nation. For the past two years, Hogan has proposed putting a nonpartisan panel in charge of redistricting for congressional and legislative districts. His bills have died without a vote in the state legislature, where Democrats hold strong majorities in both chambers. Democrats say they don’t want to change the map-drawing process for Maryland, where their party has a more than 2-to-1 voter-registration advantage over the GOP, while Republican-controlled states continue gerrymandering. In Virginia, where Republicans hold majorities in both legislative chambers, bills aimed at ensuring nonpartisan redistricting failed for similar reasons, with GOP lawmakers saying they don’t want their state to disarm unilaterally. Maryland’s legislature this year approved a proposal to create an independent commission to draw the voting maps, but only for congressional districts, and only if five other states agree to the same plan. Lawmakers from both parties would appoint members of the panel. Hogan vetoed the measure, which he called a “phony bill masquerading as redistricting reform” and vowed to continue fighting for his own proposal. House Speaker Michael E. Busch (D-Anne Arundel) and Senate President Thomas V. Mike Miller Jr. (D-Calvert) responded with a joint statement saying the governor “prefers his plan to simply elect more Republicans to Congress.” Common Cause and the Maryland League of Women Voters applauded Hogan’s veto, saying the Democrats’ bill set an “impossibly high bar” with its requirement for five other states to join a redistricting compact. The advocacy groups also criticized the measure for not addressing legislative districts. “It was a feel-good bill that made them feel like they did something,” said Nancy Soreng, co-president of the Maryland League of Women Voters. “It just gave Maryland an excuse to sit back and do nothing.” Democrats could enact their bill next year by overriding the governor’s veto, and they had enough votes to do so when they passed the bill this year. But Busch and Miller have not said publicly what they want their powerful Annapolis caucuses to do next. Del. Kirill Reznik (D-Montgomery), who proposed the House version of the multistate plan, said he is open to working on a compromise measure, but he doesn’t think the governor is willing to budge. “He wants his bill and no other plan,” Reznick said. “He has to signal that he’s open to some kind of multistate solution before we move forward.” Hogan spokesman Doug Mayer said the governor sees little room for compromise on the matter and has no plans for reaching out to Democrats. “We’re always willing to talk to people and find ways to make things work, but this is an issue of right versus wrong, and there’s not a lot of middle ground,” he said. The federal judiciary might force state officials into action, depending upon the outcomes of three gerrymandering lawsuits, including one in Maryland. The U.S. Supreme Court has ruled in the past that racial gerrymandering violates the Voting Rights Act. But it has never adopted a standard for striking down partisan manipulation, despite saying the practice could be unconstitutional. Plaintiffs attorneys are now testing a new legal approach, arguing that partisan gerrymandering in Maryland, North Carolina and Wisconsin violates the First Amendment by preventing people of a particular political persuasion from electing their preferred representative. In Maryland, plaintiffs lawyers are asking a three-judge panel of the U.S. District Court in Greenbelt to block the state from enforcing its congressional map. The attorneys are hoping for a ruling in their favor this fall, which could force the legislature to draw a new map before the June, 2018 primary. “It may be the courts that finally put some fairness into the process,” Soreng said. Bevan-Dangel, of Common Cause, sees room for Hogan and Democratic leaders to compromise. She said, for example, that they could agree to legislation putting an independent commission in charge of redistricting while only encouraging other states to follow suit, rather than making the change contingent upon a regional compact. Or, Maryland officials could stagger implementation of the plan so that the change affects only congressional maps for the next round of redistricting, Bevan-Dangel said, allowing lawmakers to work out any kinks in the system before using it to redraw legislative maps down the line. Additionally, she said they could negotiate how to form the independent commission, relying on models in other states for ideas. In California, state auditors select dozens of applicants from a pool, then use a lottery to narrow the field to eight commissioners, who then pick six more people for a panel of five Democrats, five Republicans and four unaffiliated members. In Arizona, the state’s Commission on Appellate Court Appointments nominates 25 applicants, and party leaders in both legislative chambers appoint two members apiece from that group. The appointees then pick a fifth member. Common Cause and the League of Women Voters plan to spend the summer pressing Maryland’s top officials to work on a redistricting-reform agreement and encouraging partner organizations in other states to do the same. They will also ask the Hogan administration’s redistricting-reform task force to hold additional public meetings in urban areas to address concerns that the work group, which was formed in 2015, didn’t focus enough on such communities. The groups’ other plans include public-outreach efforts. In the past, they organized the Gerrymander Meander, a relay tracing the state’s contorted 3rd Congressional District; and mock birthday celebrations for gerrymandering’s namesake, former Massachusetts governor and U.S. Vice President Elbridge Gerry. Bevan-Dangel said her group has discussed bringing former California governor Arnold Schwarzenegger (R) to Maryland this year to promote his state’s redistricting model. She said Democratic and Republican leaders in the state should work toward an agreement before the 2018 election because “either party could end up suffering if they’re seen to blame for redistricting reform not happening when it could have.”

Circuit judge rules against Virginia gerrymandering claims, says districts ‘debatable’

RICHMOND — A Richmond Circuit Court judge has ruled against a group that argued 11 of Virginia’s legislative districts are so sprawling that they do not meet the constitutional requirement for compactness. The ruling is a setback for efforts to claim that Virginia’s legislative districts have been gerrymandered to favor Republicans and disenfranchise black voters, who tend to vote Democratic, but the matter is likely to be appealed to the state Supreme Court. A separate federal case involving some of the same districts, plus others, is moving ahead after the U.S. Supreme Court sent the matter back to a lower court this year. Republican leaders, who control both houses of the General Assembly, said Friday’s Circuit Court ruling vindicated the 2011 redistricting, which also was approved by many Democrats. “Virginia has a fair and open redistricting process that involves multiple hearings and extensive input from the public,” House Speaker William J. Howell (R-Stafford) said in an email. Democrats controlled the state Senate at the time of that redistricting but now are a 19-to-21 minority in that chamber. Republicans have built on their majority in the House of Delegates since the lines were redrawn, for a commanding 66-to-34 majority. All 100 House seats are up for election this year, but experts doubt that they will be affected by the legal challenges. Wyatt Durrette, an attorney for OneVirginia 2021, the advocacy group that brought the most recent suit, said an appeal of Circuit Judge W. Reilly Marchant’s ruling is likely. Durrette cited the judge’s favorable language about the method the group used to argue that the districts are not compact. In hearings in March, the group presented expert witness Michael McDonald, a political science professor from the University of Florida who had devised a new test for compactness. McDonald said the 11 challenged districts were at least 50 percent less compact than they should have been. “While that test is novel and untested in this context, the Court does find that Dr. McDonald’s testimony and accompanying conclusions do merit serious consideration,” Marchant wrote in his ruling. But the judge ruled that raising questions was not enough to overturn the General Assembly’s actions. The standard set by the state Supreme Court, he said, is that “if the evidence offered by both sides of the case would lead reasonable and objective persons to reach different conclusions, then the legislative determination is ‘fairly debatable’ and must be upheld.”

Supreme Court refuses to take up challenge to San Francisco gun law

Over the objections of two justices, the Supreme Court declined Monday to review a decision leaving intact San Francisco’s law requiring that handguns be stored in a lockbox or secured with a trigger lock. Justice Clarence Thomassaid his fellow justices were derelict in not accepting cases in which challengers say state and local restrictions on gun ownership and use infringe on the Second Amendment rights recognized by the Supreme Court in 2008 in _District of Columbia v. Heller_. [Is Kennedy the reason Supreme Court reluctant to take more gun cases?] The court also accepted cases for argument in the term that begins next fall, including: ● A case arising from Maryland’s 2011 congressional redistricting plan, which has been criticized as one of the most gerrymandered in the country. The Supreme Court will not look at the specifics of the redistricting but whether a judge made a mistake by dismissing the challenge instead of referring it to a special three-judge panel. ● A challenge of a $2.9 million award to workers at a Tyson pork-processing plant in Storm Lake, Iowa. The company claims that courts improperly relied on averages, rather than individualized harm, in computing the damages, and the outcome could have a major impact on similar class-action lawsuits. In the gun case, individuals and gun rights groups tried to break through the reluctance of the Supreme Court to provide guidance on its 5-to-4 decision in _Heller,_ which said that the Second Amendment protects an individual’s right to gun ownership for self-defense. The court has turned aside requests that it examine laws related to carrying guns outside the home, who is qualified to receive licenses to carry weapons and other restrictions. Under San Francisco’s law, handguns kept at home must be kept in a lockbox or outfitted with a trigger lock. Besides an almost total ban on handguns, the District of Columbia’s law contained similar restrictions on the few guns that were allowed. The challengers said San Francisco’s law was the same. “Although this is hardly the first time that a lower court has refused to take seriously this court’s watershed Second Amendment decisions, it is the first time that a lower court’s machinations concerning core rights and standards of review have permitted it to flout one of _Heller’s explicit holdings_ ,” the challengers told the court. “And unless and until this court provides courts with much-needed guidance in this area, the lower courts will continue to balance away the very Second Amendment rights that this court has recognized as fundamental.” Thomas, joined by _Heller_ author Justice Antonin Scalia, largely agreed with the challengers. Thomas said that the San Francisco law “allows residents to _use_ their handguns for the purpose of self-defense, but it prohibits them from _keeping_ those handguns operable for the purpose of _immediate_ self-defense” during times that “they are most vulnerable.” The case is _Jackson v. City and County of San Francisco_. In the redistricting case, judges have often criticized Maryland’s congressional redistricting plan, which was designed by the Democratic-controlled General Assembly to maximize the party’s control of congressional seats. One judge compared the 3rd Congressional District to a “broken-winged pterodactyl, lying prostrate across the center of the state.” But the federal judge to which the case was initially assigned declined to move it forward to a special three-judge panel because “nothing about the congressional districts at issue in this case affects in any proscribed way Plaintiffs’ ability to participate in the political debate.” A three-judge panel in Virginia recently ruled that state’s redistricting must be redone because it relied too heavily on race in drawing districts. Common Cause, an advocacy group that opposes gerrymandering in Maryland, applauded the Supreme Court’s decision to accept the case. “There is a standard in many voting rights cases which requires that they be heard by three-judge panels,” said Dan Vicuna, the group’s national redistricting coordinator. Maryland Gov. Larry Hogan (R), who has said the state’s redistricting process needs to be less politicized, expects to outline proposals to change the system within the next few weeks, according to his office. Josh Hicks contributed to this report.

N.C.’s outgoing GOP governor appears to make one last attempt to stick it to the Democrat who beat him

With just one day to go before he leaves office, North Carolina Gov. Pat McCrory (R) threw a legal Hail Mary to the U.S. Supreme Court in another apparent effort to undermine his Democratic successor's ability to govern. McCrory filed an emergency request to the Supreme Court, asking the justices to pause court-ordered special elections for more than two dozen state legislative districts in 2017 — special elections in which Democrats could have an opportunity to pick up seats in North Carolina's GOP-dominated legislature. A federal court found in the summer that 28 state House and Senate districts were racially gerrymandered, but the three-judge panel made the unusual decision to let the election go forward in those districts because it decided it was too late to redraw the maps. After the election, the court ordered the legislature to redraw the lines by March and hold special elections later in 2017. Republicans have a veto-proof supermajority in both North Carolina chambers. Democrats, who seized the governor's mansion this fall, were excited at the prospect of having a rare second chance to pick up state House and Senate seats in 2017. If the Supreme Court grants McCrory's request for a stay, though, Democrats could have to wait until the 2018 midterm elections to try to win more seats under a new electoral map. That would mean Gov.-elect Roy Cooper (D) would spend two years — instead of potentially far less time — working with a Republican-dominated legislature that's already proved to be combative. After Cooper unseated McCrory this fall, Republicans convened a special session and passed legislation that would limit his power to appoint Cabinet positions and state and local elections boards. McCrory signed the legislation even though he described parts of it "wrong and short-sighted." McCrory's government was already appealing the court's decision to require lawmakers to redraw the map, but the incoming Democratic governor could simply drop the appeal. McCrory's request comes a day before he leaves office; Cooper will be sworn in shortly after the clock strikes midnight and Saturday turns to Sunday. It appears to be one more, last-minute attempt to stop a map-redrawing and special elections from going forward that could cause Republicans to lose some power in the state legislature. "On Election Day, millions of North Carolina voters went to the polls and selected the state legislators who would represent them in the general assembly for two-year terms in accordance with the North Carolina Constitution. Or so they thought," reads the petition, which was sent to Chief Justice John Roberts, who handles emergency appeals for the 4th Circuit but would likely refer it to the entire eight-member court.  On Friday, Cooper filed his own lawsuit against Republicans: To stop the recently passed law taking away his power to appoint people to the state elections board. On Friday evening, a county judge agreed to put a temporary hold on the law from going into effect on Jan. 1 until the lawsuit could go forward. Cooper's legal team said in court more challenges would be filed in the weeks to come, which means North Carolina will likely be awash in lawsuits in the new year.

This is how to get rid of gerrymandered districts

We analyzed how different institutions over the past 45 years have drawn districts — and when the results are most likely to be less gerrymandered. Here’s what we found.  Former president Barack Obama and former attorney general Eric Holder are focusing on combating gerrymandering and opposing redistricting plans that make it harder to Democrats to win.   While the courts keep looking for an effective standard, a few states have tried different ways to draw districts that can reduce gerrymandering and improve representation.  Neglecting shifts in the population can result in districts with drastically different numbers of citizens, which means that some votes carried substantially more weight than the votes of others in neighboring districts. However, a number of states did exactly this until the Supreme Court intervened.   Not all, however. Some states use different methods for drawing districts, including independent redistricting commissions, state legislative plans, court-imposed plans, and other types of commissions connected to the state legislature.     We used several measures of compactness — and found that independent commissions draw districts that are more compact. Independent commissions aren’t trying to create districts that lean toward one party or another — and therefore draw fewer meandering and sprawling boundaries. Courts also draw more compact districts once they’re brought in by litigation, whether the judges draw boundaries themselves or assign the task to an outside expert.  Independent redistricting commissions are also more likely to draw districts that treat cities or towns or counties as particular units, and less likely to split those political subdivisions into parts. In contrast, legislative-drawn maps tend to snake through several cities and counties. The goal of getting a “safe” district for one party leaves citizens confused about which districts they are in. Further, they have a harder time holding their representatives accountable.  Independent commissions may also do a better job preserving the cores of prior districts — but only for state legislative districts. For U.S. House seats, independent commissions may be tossing aside gerrymandered districts’ cores but may intend to respect the core more in the future. As IRCs draw new districts in future redistricting cycles, it is possible that continuity will increase in congressional districts as well. In other research we find that commissions or courts also do a better job than state legislatures at creating more competitive district maps. That’s for several reasons. First, some commissions — like Iowa’s — don’t consider where current representatives live. As a result, two incumbents often have to battle for one district — which makes races elsewhere in the state more competitive. Also, there were maps not constructed with the intent of reducing competition, unlike some state legislative plans.  Overall, independent redistricting commissions have done a better job at avoiding gerrymandering, as measured by these three traditional criteria. As a result, districts drawn by independent commissions are likely to be less partisan and more competitive than districts drawn by state legislators. Thirty states are now considering legislation that would create or expand such redistricting commissions. For example, North Carolina’s House Bill 200 would create a “nonpartisan redistricting process.” Georgia’s Senate Resolution 6 would amend the state constitution to create an “independent bipartisan commission instead of the General Assembly” to redraw legislative and congressional districts. Independent commissions are relatively new, and some questions still remain. For example, how effectively do they provide opportunities for minority voters? However, they seem promising as a way to draw less gerrymandered districts so far.

Do we really want the Supreme Court to decide how partisan is too partisan?

On Dec. 12, 2000, the Supreme Court ended the recount of Florida’s votes in that year’s presidential election, effectively awarding 25 electoral votes to Republican George W. Bush and making him president. The decision was 5 to 4, with the most conservative Republican-appointed justices in favor of Bush. Democrats condemned the ruling as nakedly partisan, saying it was based not on precedent but a cooked-to-order legal rationale: Recount rules didn’t treat all ballots the same way, thus violating the 14th Amendment guarantee of equal protection of the laws. Many critics saw _Bush v. Gore_ as an indelible blot on the court’s legitimacy. Seventeen-odd years later, Democrats are pressing a case whose essential premise is that the Supreme Court can and should be trusted to write a whole new category of rules affecting almost every state legislative and congressional election in the United States. Their legal argument rests on the equal protection clause, and their hopes rest on the very swing-voter justice who tipped the 2000 election case, Anthony M. Kennedy. At issue is the bad habit that state legislature majorities, abetted by like-minded governors, have of skewing congressional and state legislative districts to their party’s advantage. The specific appeal now before the Supreme Court involves a Democratic challenge to a state legislative district map that Wisconsin Republicans drafted in 2011. (Republicans, in a separate case still in the lower courts, are challenging similar computer-aided manipulations by Democrats in Maryland.) No matter which party does it, partisan districting creates anomalies and unfairness, breeding public cynicism about a “rigged system.” Certainly in Wisconsin, the GOP acted out of blatantly self-serving motives. Excluding Democrats from the process, they considered several alternative maps before adopting one that maximized Republican opportunities. In 2012, the GOP won 60 percent of State Assembly seats with just 48.6 percent of votes cast. Less clear is whether the federal judiciary — meaning, ultimately, the Supreme Court — is the right institution to fix this. To be sure, the justices long ago waded into the “political thicket,” as Justice Felix Frankfurter called it — with some necessary results. The Supreme Court decided districts had to be roughly equal in population, on the “one person, one vote,” principle; under the Voting Rights Act, the justices protect minority voters from racially biased districting. In all those decades, though, the court has never held any alleged _partisan_ excess unconstitutional, for a very good reason: the lack of a consistent, judicially manageable answer to the question “How partisan is too partisan?” Opponents of the Wisconsin map think they’ve found an objective measurement of undue partisanship, the “efficiency gap,” or E.G., which, applied to the Badger State, shows Democratic votes are excessively “wasted” because Republicans “packed” Democrats in a minority of districts where their candidates are all but guaranteed victory. Rendering Democratic votes less potent in this way violated the equal protection clause, Democrats argued. And two members of a three-judge federal court ruled in their favor, thus prompting the state’s appeal to the justices. Yet statistics are notoriously open to interpretation. As the dissenting judge, William C. Griesbach, noted, some of Wisconsin’s high E.G. results from demographics, namely the concentration of Democrats in cities such as Milwaukee and Madison. Also, the GOP drew compact and contiguous districts, unlike the “salamander” that made old Elbridge Gerry famous. Can there be a partisan gerrymander with no gerrymandering? In any case, the implication that the legislature’s composition should correspond to the party balance statewide smacks of a plea for proportional representation, which the Supreme Court has never supported. For these and other reasons, even the two-judge majority hesitated to say that E.G. was anything more than a factor in its ruling — a tacit acknowledgment of the subject’s inherent indeterminacy that may impress Kennedy. In past cases, he conceded that there might be such a thing as unconstitutionally extreme partisan districting, but never actually identified an example. If past is prologue, Kennedy will find a new way to keep his options open. Ideally, though, he and the other justices would rule once and for all that adjudicating partisanship is a mission impossible. In its futility, it could prove corrupting. Supreme Court and, indeed, lower court confirmation processes are contentious enough. Do we really want presidents, and senators, vetting judicial nominees for their views on how best to parcel out state legislative and congressional seats between the parties? To repeat: Partisan districting may fuel public cynicism about politics. Instead of setting up the Supreme Court as the ultimate arbiter of it, however, reformers should promote independent state-level commissions such as those in California and Arizona. Divided government, too, may help limit excesses; if a legislature dominated by one party draws a grossly skewed map, a governor from the other party can veto it. Some things may be just as dangerous to democracy as a redistricting process constantly embroiled in partisan politics. One of them would be a Supreme Court constantly embroiled in partisan politics. _Read more fromCharles Lane’s archive, follow him on Twitter or subscribe to his updates on Facebook._ **Read more here:** Tim Cullen and Dale Schultz: We led the Wisconsin Senate. Now we’re fighting gerrymandering in our state. Richard L. Hasen: The Supreme Court may just have given voting rights activists a powerful new tool

Why the Democratic path to a House majority may run through a courtroom

Many Democrats are bullish on their chances of winning back the Senate next year, and most sound confident they can hold on to the White House. Few think they have a prayer of taking back the House of Representatives. So now they’re playing the long game – turning to the courts to help deliver what the ballot box won’t. Top Democratic attorneys are arguing before state and federal courts that district maps drawn in a handful of states violate the Voting Rights Act by improperly packing African American voters into a small number of districts, limiting their influence. In Virginia, a U.S. District Court ruled last year that the Commonwealth's one majority-black district, stretching from Richmond to Hampton Roads, limited those voters. Now, legislators have until September 1 to draw new maps. The U.S. Supreme Court in March ordered a lower court to consider whether Alabama's legislature similarly packed African American voters into state legislative districts to minimize their influence. Last month, the high court ordered North Carolina's Supreme Court to consider whether legislators there had done the same thing. And in March, Florida's Supreme Court heard arguments over whether new district maps violate state constitutional mandates that prohibit gerrymandering on a partisan basis. [ _Judge orders new congressional map in Florida by Aug. 15_]    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico In each case, the district maps at the heart of the legal complaints were drawn by Republican-controlled legislatures. And in each state, those maps helped Republicans secure overwhelming congressional majorities. Republicans control 10 of 13 House seats in North Carolina; 17 of 27 in Florida; eight of 11 in Virginia and six of seven in Alabama. "No question, 2010 redistricting hurt us," said Kelly Ward, who heads the Democratic Congressional Campaign Committee. Asked whether the party could win the 218 seats necessary to take back the majority, she said: "There's always a chance, of course." Rob Simms, Ward's counterpart at the National Republican Congressional Committee, has a different take: "I think it's very difficult" for Democrats to take back the majority under the current maps, he said. The district lines drawn by Republicans after the 2010 census left Democrats with few real opportunities. David Wasserman of the Cook Political Report says just 28 House seats are truly competitive -- and seven of those seats are held by Democrats. The party would need to win all of those, plus nine more solidly Republican seats, to win a majority. The court cases in question today could change the balance of power in only a small handful of seats. Mark Gersh, a leading Democratic Party redistricting expert, estimated that his side could pick up two to three seats each in Virginia and Florida, and one to two seats in North Carolina. "We're only talking about fiddling around the margins here," said Michael McDonald, a redistricting expert at the University of Florida who served as an expert witness in the Virginia lawsuit. But if courts rule in Democrats' favor, those rulings would set a legal precedent for the next round of redistricting, when Democrats would have a stronger case against what they perceive to be racially-motivated redistricting that packs their voters into a smaller number of districts. Republicans were able to draw those favorable maps after the 2010 census because of that year's GOP landslide, which handed the party control of the House -- and, more importantly, of state legislative chambers across the country, which are more subject to political waves than federal seats. All told, the GOP picked up more than 700 legislative seats that year – which translates into roughly one in ten legislative seats in the entire country. Because legislators in many states draw new maps every decade, the timing of the Republican wave couldn't have been better for the GOP -- or worse for Democrats. [ _Flashback:_ _The political middle is dying. But it's not redistricting's fault._]    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico "The 2010 redistricting situation was caused by this incredible Republican wave in which they won governorships and legislatures in states that would normally be competitive or lean-Democratic," Gersh said. He pointed to states like Pennsylvania, Michigan and Florida, which are competitive in presidential election years but which voted heavily Republican in that year's midterm elections. The lesson Democrats have taken from the 2010 round of redistricting, and the disadvantage they now face, is that the party needs to invest more in contests for state legislative seats. The Democratic Legislative Campaign Committee, tasked with helping the party win those seats, recently opened a super PAC to raise money for those contests; the group's Republican counterpart, the Republican State Leadership Committee, aggressively courted major donors before the 2010 elections by conveying the opportunities controlling legislative chambers presented. "In all these cases, Democrats need to win more seats in legislative chambers so we can prevent the kind of gerrymanders that are being declared unconstitutional by these courts," said Carolyn Fiddler, a DLCC spokeswoman. But Democrats face another wrinkle: The Supreme Court is considering whether an independent commission created by Arizona voters in 2000 has the constitutional authority to draw new districts. Republicans believe the Constitution reserves for legislatures the power to draw political boundaries; they think allowing the GOP-led legislature in Arizona to draw new lines could hand them at least one, if not two, Democratic-held districts. "Redistricting has frequently been shaped in significant ways by high profile Supreme Court cases, and we are confident Republicans will be nimble enough to adapt to any potential changes resulting from the latest round of cases," said Matt Walter, president of the Republican State Leadership Committee. If the court rules in the GOP's favor, California's commission-based redistricting may be up for grabs, too (Though, ironically, Democrats think they could squeeze a few more seats out of California if the high court rules for Arizona Republicans). Democrats and Republicans are keeping close tabs on the cases making their way through the courts, though each side admits there isn't much they can do once judges hear their arguments. That's a strange sense of powerlessness for both sides -- one that hopes to preserve its new majority beyond the next decade, and the other struggling to return to political relevance.

For Maryland Democrats, redistricting referendum forces a look in the mirror

Maryland residents will have a special one-two punch when they go to the polls next month, voting both for congressional candidates and a controversial map that sets new boundaries for the state’s eight congressional districts. Question 5 on this fall’s ballot asks voters to accept or reject the way Gov. Martin O’Malley and his Democratic allies in the General Assembly have redrawn congressional lines, scrambling the representation of 1.6 million voters to help Democrats gain an extra seat in the U.S. House of Representatives. Republicans and some minority groups oppose the plan, calling it a gerrymander. They collected more than 59,000 signatures to put the redistricting plan on the ballot for the first time in more than half a century. The referendum presents a conundrum for many in a state where Democrats outnumber Republicans 2 to 1. Polls show wide distaste in both parties for gerrymandering. But Maryland Democrats agree that their greater good would be served by unseating one of the state’s two Republican congressmen — no matter the means. Luckily for conflicted Maryland Democrats, they might have it both ways. Under Question 5, Maryland voters theoretically would send state lawmakers back to the drawing board to come up with a better map than the one a federal judge decried as legal but a “Rorschach-like eyesore” that splits communities of like interests. But lawyers and leading state Democrats say the vote will be no more than symbolic. There is nothing in the referendum preventing O’Malley and the General Assembly, which is controlled by Democrats, from reenacting the same map next year. And nullifying it Nov. 6, they say, will not undo the results of this year’s congressional races. The map has altered the political landscape, particularly in the new 1st and 6th congressional districts, which are held by the only two Republicans in the Maryland House delegation. The 1st District, on the Eastern Shore, was one of the nation’s most competitive just two years ago. The incumbent is Rep. Andy Harris, a Republican from Cockeysville. But with the new map, it was packed with extra Republicans from Baltimore County. This was done to keep incumbent Democrats safe around Baltimore and to make the 6th District in Western Maryland, long held by Rep. Roscoe P. Bartlett (R), majority Democratic. Wendy Rosen won the Democratic nomination in Maryland’s 1st Congressional District but was forced to end her campaign abruptly after party officials disclosed that they had learned that she had previously committed fraud, voting in recent presidential contests in Maryland and Florida. The party conducts only scant background checks on its candidates. But its seeming uninterest in her, and its lack of knowledge about her activities in Florida, revealed how officials viewed the new 1st District as all but a lost cause for Democrats. Then there’s Bartlett’s 6th Congressional District, which, under the new map, stretches nearly 200 miles, from the West Virginia line to the Capital Beltway. The district takes in nearly 350,000 mostly Democratic voters in Frederick and Montgomery counties. The change has made Bartlett’s seat one of the most precarious nationally for Republicans to hold onto in November. The rise of the Democratic nominee in that contest, John Delaney, however, has also underscored the unpredictable nature of redistricting. Founder of the Chevy Chase commercial finance firm CapitalSource, Delaney was able to use a slice of his personal fortune in the party’s primary to defeat the establishment favorite, state Senate Majority Leader Robert Garagiola (Montgomery). Smelling victory, the state’s formidable slate of Democratic incumbents has since rallied around Delaney, including U.S. House Minority Whip Steny H. Hoyer and the ranking members of the powerful budget, intelligence and oversight committees: Reps. Chris Van Hollen, C.A. Dutch Ruppersberger and Elijiah E. Cummings. “The party made it almost impossible to have a chance to win [the 1st] . . . it was obvious they made the decision to write Rob Garagiola into the [6th] District, and that’s where they have concentrated their time,” said Rosen, who left the race so late that her name will still be on the ballot. With allegations of voter fraud referred to authorities in Florida, Rosen declined to address her exit from the race but said Democrats should have been more fair with redistricting. Rosen said she thought the party missed an opportunity to win all eight of Maryland’s congressional seats by making them more competitive and winning in a battle of ideas at the ballot box. “We’ve got legislators who have written themselves districts with a 23-point advantage. They’re great people and deserve to be reelected. But if they could have sacrificed 2 points here and 2 points there, we could have had a fighting chance in the 1st. Democrats should have done that for their own best interest.” Good-government groups largely agree that the map is flawed and unfair. In making the 6th District competitive for a Democrat, they contend, O’Malley and the legislature split majority-minority Montgomery into three districts that will be represented by white men in Congress. And more broadly, as in most states where redistricting is controlled by politicians and not independent commissions, Maryland’s congressional districts have been drawn with partisan control in mind, pushing candidates further left and right in primaries and narrowing the role for moderate voices in either party, the Maryland League of Women Voters argued in testifying against the state’s redistricting plan last year. “Maryland’s governor and legislators should assess the responsibility for their role in creating a dysfunctional Congress and accept the proposition that just because you can create such boundaries does not mean you should,” league President Nancy Soreng testified. Del. Neil C. Parrott, the Washington County Republican who led efforts to put redistricting on the ballot, said he is convinced that if voters reject the map, it will prove to be more than symbolic. He pointed to a 1962 referendum led by the league that resulted in a significant rewrite. Parrott said he thinks the legislature would be under intense public pressure to produce a better map, not rubber-stamp the existing one. Every member will be up for reelection in 2014, he said, and O’Malley and Democratic leaders “cannot afford to . . . ignore voters.”

High court hits the pause button on filling seat of ousted Maryland delegate

Maryland’s highest court has temporarily put on hold the decision of a Prince George’s County Circuit Court judge to give Gov. Martin O’Malley power to choose a replacement for ousted state delegate Tiffany Alston — meaning both Alston and the former drug dealer nominated by local Democrats to succeed her still might have a shot at the seat. The stay granted by the Maryland Court of Appeals does not mean that Judge C. Philip Nichols Jr.’s ruling will be reversed in any way, nor does it mean the state’s highest court will definitely hear arguments in the case. Rather, the stay effectively hits the pause button on the entire legal mess, giving all those involved until Wednesday to answer a request that the Court of Appeals weigh in. The stay was prompted by Greg Hall, the former drug dealer who was nominated in a 12 to 10 vote by the Prince George’s County Democratic Central Committee to replace Alston after she was convicted of misconduct and was subsequently ousted from office in October. Hall, who was convicted of a misdemeanor gun charge in the early 1990s stemming from an incident in which a 13-year-old boy was killed, was never installed in the seat because O’Malley delayed appointing him, then asked the committee to withdraw his name. Hall sued in Prince George’s County Circuit Court, saying O’Malley was bound by law to appoint him, and the committee had no right to ask his name be withdrawn. Nichols ruled against him Wednesday. The committee had been set to withdraw his name and, according to Nichols’s ruling, that would have set the stage for O’Malley to select whomever he wanted. Terry Speigner, the committee’s chairman, said the group will await further court action before doing anything. “We’re going to follow what the court tells us, which is put everything on pause until they tell us to unpause,” said Speigner, who ran against Hall to replace Alston but has since vowed not to try to fill the vacancy. Walter Green, Hall’s attorney who had filed a motion asking for the stay, said he hoped the state’s highest court would eventually reverse Nichols’s ruling. “We ought to have a final decision from the state’s highest court as to whether that process is legal under the terms of the Maryland Constitution or not,” he said. Raouf Abdullah, Alston’s attorney, said he hopes the Court of Appeals will also consider whether Alston’s ouster was appropriate. She, too, has sued, claiming that because she was eventually given probation before judgment as part of a plea deal — not a technical “conviction” — she should not have been removed from her position as a legislator. Nichols had ruled against her, saying her conviction was final because she had waived all her appeal rights, and the probation before judgment was not issued in her case until a month after that. A spokesman for O’Malley said attorneys would respond by Wednesday, the due date. The court is expected to decide after that whether it will grant Hall’s petition for writ of certiorari and hear arguments in the case.

The House isn’t competitive in 2016. But gerrymandering is on trial.

The House of Representatives is increasingly partisan because the districts lawmakers represent are increasingly partisan. Political scientists think there are a few reasons for this polarization, but one that tops many of their lists -- though not all -- is congressional districts often drawn weirdly to help one party or another, a.k.a. "gerrymandering." And if gerrymandering can make districts less competitive, it stands to reason that non-politicians redrawing the same lines can make districts more competitive. And that's what appears to be happening in the 2016 election cycle, a year with very few truly competitive districts. While redistricting expert Tim Storey with the nonpartisan National Conference of State Legislatures points out there likely won't be any historic shifts in the partisan makeup of congressional districts this election cycle, it's notable that of the top 10 districts most likely to flip parties (as ranked by Politico on Monday), at least three of them are districts that had to be redrawn thanks to the courts, depending on whom you ask.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico And in a moment when much of America's political system is focused on the separation (or lack thereof) between the judicial branch and Congress, it's also notable that the courts are playing the biggest role in changing which party is more likely to win in these congressional districts.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico Three recently redrawn and newly competitive districts -- two in Florida and one in Virginia -- come after the courts threw out the states' congressional maps, which were drawn by GOP-controlled legislatures. (Other nonpartisan rankings of competitive House seats include even more recently redrawn Florida districts.) In Virginia, a three-judge federal court panel determined the legislature violated the Constitution by packing the state's 3rd congressional district with black voters. (The Supreme Court agreed in November to hear the case.) In Florida, the state Supreme Court said political operatives had undue influence on the process and invalidated the maps used to elect 27 lawmakers to Congress in 2012 and 2014.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico Both GOP legislatures had to try to scramble to redraw the districts in question (Virginia's failed to, leaving the map-drawing to the courts). Both new maps ended up affecting many other districts in the process. And we could be adding some more seats to this list soon, too: Earlier this month, a three-judge federal court panel ordered two of North Carolina's majority-black congressional districts be redrawn, ruling that the districts are an example of unconstitutional racial gerrymandering. On Friday, the U.S. Supreme Court rejected a request to essentially wait to redraw the districts after the state's March 15 primary. The decision forces the GOP-controlled state legislature to push the primaries for the state's 13 House districts back to June while it tries to agree to new lines.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico A few seats here and there suddenly becoming more competitive might not sound like a big deal, but it becomes one when you realize just how few House seats are up for grabs in November. There are only about 33 competitive House races out of 435, according to the nonpartisan Cook Political Report. Democrats, who desperately want to take back control of the House after being in the minority since 2011, are buoyed by the fact 27 of those 33 competitive seats are held by Republicans. A handful of those wouldn't have been competitive were it not for court-ordered redrawn maps. But as we noted recently, it's still a tall order for Democrats to take back the House anytime this decade; even if they won all 33 of those seats, they would come up short of a majority -- a reflection of a House map that favors the GOP and will for years to come.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico Democrats will take all they can get at this point. Republicans invested heavily in 2010 to win the state houses that control the congressional maps. (All but seven state legislatures have the power to draw the maps every decade based on new Census data, although seven more states only have one congressional district.) It paid off big time: Congress and state legislatures are about as red as they've ever been (not to mention governors' mansions and states' politically leanings as a whole).    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico Democrats are trying to play catch up for 2020. The multimillion-dollar 2020 redistricting war is already on.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico And this summer, supporters of trying to take politics out of redistricting ostensibly got a win when the Supreme Court upheld Arizona's independent commission and paved the way for more state legislatures to get out of the line-drawing business altogether. (Although as Storey noted, some of these so- called independent commissions, which more states are considering, can be just as partisan as the most-partisan statehouse.)    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico For better or for worse, we live in an era in which every slightly competitive district counts, and where certain elections can change the political landscape for a decade to come. Which is why it's worth paying attention to a few redrawn House seats.

Va. Democrats revive Roush judgeship

RICHMOND — Just when it looked as if the Virginia Senate had slapped a 30-day expiration date on Gov. Terry McAuliffe’s pick for the state Supreme Court, Senate Democrats kept her appointment alive with a parliamentary maneuver. Sen. A. Donald McEachin (D-Henrico) called for a surprise adjournment of Monday’s session, which effectively extends Supreme Court Justice Jane Marum Roush’s term — and puts a hold on redistricting efforts. “I think Judge Roush is a fabulous jurist, there is no reason to remove a sitting Supreme Court justice. There was no reason articulated today other than mere political preferences and that’s not what ought to happen to the court at any level,” McEachin told reporters after the vote. Last month McAuliffe (D) used his power to make interim judicial appointments when the legislature is not in session to install Roush, then a Fairfax circuit court judge, on the Supreme Court. Once the legislature is back in session, lawmakers have always in the state’s modern history elected a governor’s interim pick to a full 12-year term. However, if they take no action, the interim judge’s appointment expires 30 days after the start of the next session, which happened to be Monday. House and Senate Republicans vowed to install their preference, Court of Appeals Judge Rossie D. Alston Jr., but on Monday a moderate Republican senator derailed that plan by voting against Alston’s nomination. With that move, Sen. John C. Watkins (R-Powhatan) prevented Alston from taking the bench, but did nothing to stop Roush’s appointment from expiring within 30 days. Enter McEachin. He made a motion to adjourn the entire session, which passed 21-20 with the help of Lt. Gov. Ralph Northam’s tie-breaking vote. Roush’s term will still expire within 30 days, but if he chooses to, McAuliffe can again nominate Roush to an interim appointment. With no session scheduled until January, she would serve on the bench for about another six months. It’s the governor’s job to convene special sessions. The adjournment also pulled the plug on redistricting, which is the reason McAuliffe originally called the special session. Now McAuliffe could write a letter to a federal panel of judges asking them to redraw the lines that they had deemed unconstitutional. “You knew that before we got here,” McEachin said. “There was no Republican plan... It seemed to me they were willing to go through an exercise at taxpayer expense. Fortunately a majority of the Senate decided that wasn’t an exercise they wanted to engage in.” Senate Minority Leader Richard L. Saslaw (D-Fairfax) said Democrats had won, but not without costing taxpayers about $41,000 to bring everyone back to Richmond. “We had a successful day except it cost taxpayers money,” he said.

Supreme Court questions Arizona redistricting commission

Critics say that allowing politicians to control political redistricting often means that representatives choose their constituents, instead of the other way around. But the Supreme Court questioned Monday whether citizens intent on eliminating partisan gerrymandering can completely cut state legislatures out of the equation. Arizona voters tried that in 2000, when they turned over redistricting to an independent commission. But Republicans in the legislature were at the court Monday saying that such congressional redistricting schemes violate the Constitution. The document’s Elections Clause states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Washington lawyer Paul D. Clement, representing Arizona lawmakers, said that means what it says. Turning over reapportionment to a “completely unelected and completely unaccountable” commission is “plainly repugnant to the Constitution’s vesting of that authority in the legislatures of the states.” On the other side, Washington lawyer Seth P. Waxman said “the legislature” really refers to the legislative process, and the people of Arizona have provided themselves the power to make laws, such as this one. No one would have doubted at the time of the framing of the Constitution in Philadelphia, Waxman said, “that the sovereign states could choose to allocate their legislative power as they wanted.” The questioning largely broke down along the court’s ideological fault lines, with liberals more supportive of the commission and conservatives sharply questioning Waxman. And unfortunately for him, the latter group included Justice Anthony M. Kennedy, who often holds the balance on the court. Kennedy pointed out that it took ratification of the 17th Amendment in 1913 to provide for direct election of senators by voters, rather than having them elected by state legislatures. Many wanted direct election before then, Kennedy said, but no one ever disputed the power of the legislatures to make the choice. “That history works very much against you,” Kennedy told Waxman. An adverse decision from the Supreme Court could handicap what has been a small but growing resistance to entrusting elected officials with the political redistricting process that follows each census. Thomas Mann and Norman Ornstein, political scientists and congressional scholars, in a brief supporting Arizona’s efforts, explained why voters were looking for alternatives. “When the district-drawing process is controlled by elected officials, the result too often is a process dominated by self-interest and partisan manipulation,” they said. “The consequences are twofold: diminished electoral competition, which insulates representatives from their constituents; and an increasingly polarized Congress that takes cues from the most extreme and politically active partisans, with little incentive to compromise.” Arizona voters in 2000 amended their constitution to give the job to a panel called the Arizona Independent Redistricting Commission. It is composed of five members drawn from a list of 25 compiled by a group that also selected judicial candidates. The highest-ranking officer and minority leader of each chamber of the legislature select a member, and those four select an independent chairman. Legislative leaders may comment on the plans the commission draws up, but they cannot alter the maps, nor can the governor veto them. California is the only other state that has diminished the legislature’s role similar to Arizona, but 11 other states have commissions that have some sort of say about reapportionment. Justices Sonia Sotomayor and Elena Kagan were the most adamant that ruling against Arizona would threaten such experimentation. “If a state constitution says that the people hold the power and they can choose a commission or however else they want to do it, isn’t that the legislative process?” Sotomayor asked. Kagan said there were “zillions” of laws regarding elections that were passed by voters without the involvement of the legislature, including requiring voter IDs, voting on machines or voting by mail. “So would all these be unconstitutional as well?” she asked. Clement said the difference is that none of those laws took power away from the legislature. He said the legislature could delegate some powers to a commission, and noted in answering a question from Justice Ruth Bader Ginsburg that only congressional redistricting — not drawing lines for the Arizona legislature — was at issue in the case. Waxman drew fire from the conservative justices. Justice Antonin Scalia flatly disputed Waxman’s premise that the use of the word legislature in the Constitution had a different definition than “the body . . . of representatives of the people that makes the laws.” He added: “I looked through them all. I can’t find a single one.” Chief Justice John G. Roberts Jr. also questioned Waxman’s reasoning. “Why doesn’t your interpretation make the words ‘by the legislature thereof’ entirely superfluous?” Roberts asked. “In other words, why didn’t they just say that the rules would be prescribed by each state?” Waxman said the framers were showing a preference that the procedures be done by legislation, not who should do it. The case is _Arizona State Legislature v. Arizona Independent Redistricting Commission._

Wisconsin’s state legislative districts are a big Republican gerrymander

If the plaintiffs win, their victory could affect state and federal legislative districts far beyond Wisconsin and into the next redistricting cycle.  There are lots of different ways that gerrymandered districts can be drawn to bias elections in one direction or another, but the most basic violation involves undermining majority rule. If the districts are drawn so that one party regularly wins a majority of seats with a minority of votes, that’s biased in a way that most people would find undemocratic.  Here’s how we can tell that Wisconsin’s assembly map is clearly undemocratic:  we compare the median and mean two-party vote in the 99 assembly districts in statewide elections. We examine statewide elections – for governor, secretary of state, and so on – and then figure out how each district voted. Why didn’t we examine district elections? Because those can’t really be compared fairly. One party or another often concedes particular districts to the other party, running weak and poorly funded candidates or no candidates at all. In Wisconsin from 2008 to 2014, fully a third of all the state legislature’s districts had only one party’s candidate running. In most of the rest, the other party had a candidate, but that candidate was little more than a stand-in. But if we examine how voters in these state legislative districts voted for statewide offices, we get a better sense of whether they tilt to favor one party or another. For those who haven’t looked at statistics in a while, we get “mean” vote across assembly districts by adding each party’s percentage of the vote in each district and dividing by the number of districts, or 99. The “median” district vote, by contrast, is what we could get if we list the districts from most Democratic to most Republican (by percentage of the vote) and choose the one exactly in the middle. The mean and median should be nearly the same in a fair system. If the median district is only 45 percent Democratic, then the chances of a Democrat winning it is slim – and therefore the Democrats are very unlikely to win a majority of the legislature. In this case, if the mean district was also 45 percent Democratic, there’d be no bias in the system and the Dems would be getting what they deserve when they fail to take control of the assembly. But what if the mean district was 51 or 52 percent Democratic? In that case, the mapmakers would have adjusted the map to make the median district far more Republican than it “should” be.   So that’s the theory. Here’s what we found in practice. In Wisconsin, difference between median and mean Republican/Democratic district-level vote favors Republican voters by between 3.8 to 6.3 percentage points in every statewide election from 2008 to 2014. Please note that while Wisconsin voters were actually voting in slightly different districts in 2008 and 2010 – before the map was redrawn – the state of Wisconsin estimates what the 2008 and 2010 votes would be in current assembly districts.   Someone could object that this approach doesn’t take into account the “natural gerrymander” – not just in Wisconsin, but around the country – in which each party’s voters tend to cluster in different districts. In Wisconsin that means lots of Democratic voters live in cities like Madison and Milwaukee. To test that, we used a new computer-mapping technique to draw 10,000 alternative, neutral assembly maps using census blocks. Wisconsin law requires that districts be contiguous and equally populated.  Our maps do that and are drawn without information about voting. These neutral maps show a natural gerrymander of 1.1 to 3.9 percentage points (using the same median-mean comparison) favoring the Republicans. Obviously, this is smaller than the total bias of 3.8 to 6.3 percentage points in the current map. What is extraordinary is that none of the 10,000 neutral maps produced a plan as skewed toward the Republicans – in any of the 13 statewide elections from 2008 to 2014 that we examined — as the actual map drawn by the state assembly. Or to think about it differently, Wisconsin’s state legislative districts were drawn to add an additional, thick layer of bias atop the “natural” gerrymander of where Republicans and Democrats live in the state. You can see this in the figure below, which shows the average difference between the median and the mean Republican/Democratic votes in the neutral maps, on the one hand, and in the actual districts, on the other. The shaded gray area under the line of the neutral maps represents the “natural” gerrymander. The shaded red area above it is the “unnatural gerrymander” added by the state’s map. As you can see, that added 2 to 3 points of bias in every election from 2008 to 2014.  What this means is that Democrats probably have to win about 55 to 56 percent of the statewide vote to win control of the state assembly. Or to put it differently, Republicans need only win 44 to 45 percent. Lots of election results are simply unlucky. This is not one of them. The plaintiffs are right that Wisconsin’s legislative districts were drawn in a way that discriminates against the state’s Democrats by systematically diluting the value of their votes in every election. What happens in the Wisconsin trial could tell us a lot about whether courts will step in to undo partisan gerrymandering. Many people, perhaps including many judges, would be reluctant to see courts wade this far into politics. But in Wisconsin, the equal protection guarantees in the Constitution may require judicial intervention.

A third redistricting lawsuit targets Va. elections map

RICHMOND — A group of Virginia residents sued state elections officials Monday over 11 legislative districts — including some in Northern Virginia — charging that they violated the state Constitution by enforcing election maps that too easily protect incumbents. The plaintiffs argue that during the last round of redistricting, in 2011, the General Assembly drew the districts to give incumbents the best chance at holding on to their seats at the expense of geographical compactness, which the Constitution requires. If successful, the suit, which is the third recent court challenge to the state’s elections maps, could scrap the maps and send vulnerable lawmakers scrambling to compete in newly drawn districts. The House and Senate districts in question are spread all over Virginia and include parts of Prince William County, Manassas, Manassas Park, Fairfax County and Arlington County. Attorney Wyatt Durrette, a former Republican delegate, filed the suit in Richmond Circuit Court for OneVirginia2021, a nonprofit group pushing for nonpartisan redistricting. “Our goal is to influence the courts to require the legislature to honor the Constitution when it draws political districts and not subjugate the Constitution to blatant political gerrymandering,” he told reporters outside the courthouse. The lawsuit targets five House districts and six Senate districts. In the overwhelmingly Republican House, bills intended to reduce the influence of politics on redistricting have quietly disappeared in subcommittees **** without going to a floor vote. House Speaker William J. Howell (R-Stafford) said the process for drawing maps works fine, and he’s confident that the districts will withstand the challenge. “Unfortunately, this is another political lawsuit that will cost taxpayers,” Howell spokesman Matt Moran said. “Contiguity and compactness were one of the top priorities used in developing the current House districts.” But the Senate, where Republicans have a one-vote edge, passed three nonpartisan redistricting bills in this year’s session only to see them die in the House. Sen. John C. Watkins (R-Powhatan) said political map making is partly to blame for an increasingly partisan Richmond — and one of the reasons he’s planning to retire in January. “It’s just gotten so sophisticated it’s very easy to almost dictate the winners and losers in regard to redistricting,” he said. Asked to explain the chambers’ polar opposite records on nonpartisan redistricting, he said: “That’s just somebody providing instructions to say, ‘Don’t let any of it out,’ ” he said of House leaders who he said were responsible for killing the Senate bills that didn’t make it out of committee. But he added of the Senate efforts to change to redistrict: “I think the people are owed a vote.” Former attorney general Ken Cuccinelli II, a Republican and longtime advocate for a better system, said gerrymandering “distorts the political discussion” by chopping up communities. “It’s totally pro-incumbent; it’s incumbents picking their voters. I’d love to see . . . incumbents’ home addresses ignored in the drawing of maps,” he said, hinting at the lengths lawmakers go to to distort their district boundaries. Monday’s lawsuit is the latest test of the way the General Assembly redraws its districts. Two previous lawsuits argued that lawmakers illegally packed African American voters into both state and federal districts, diluting their influence elsewhere. One of the suits challenging a single congressional district was successful, and a federal court is sorting out a new map; in the second, judges are still deliberating challenges to a dozen House districts. Both legal efforts were funded by the National Democratic Redistricting Trust, which calls itself a “national organization in charge of advancing Democratic congressional redistricting efforts following the 2010 census.” Brian Cannon, executive director of OneVirginia2021, said his organization is funded by private contributions and does not disclose its donors, but is separate from the trust. Monday’s suit was brought by more than a dozen people, a broad range of Virginians that includes Sandra D. Bowen, who was the secretary of administration under now-Sen. Mark R. Warner (D-Va.) when he was governor; Robert S. Ukrop, a philanthropist and former president of the Richmond grocery chain Ukrop’s; Dale Swanson, of the Fredericksburg Tea Party Patriots; and Dianne Blais, co-president of the League of Women Voters of Virginia. The state Board of Elections, its three members and Elections Commissioner Edgardo Cortés are named as defendants. A spokesman for Attorney General Mark Herring (D), who represents the state, declined to comment. The lawsuit argues that all of the 11 targeted districts were intentionally drawn in serpentine shapes to include enough partisan households to ensure the reelection of incumbents. One district was described as a “jagged, U-shaped district surrounding and interlocking,” with another district “like a piece of a poorly designed puzzle.” In recent years, redistricting in Virginia has helped attract candidates who appeal to the most conservative and liberal extremes, which advocates for nonpartisan redistricting blame for bringing Washington’s gridlock and polarization to Richmond.

A way forward, south of the Potomac

_Ross Lawrence, a D.C.-based communications strategist, works at the American Enterprise Institute._ The stunning presidential outcome revealed an America more deeply divided and hostile to government-as-usual than many inside the Beltway could have ever imagined. Although there is a way forward from the turmoil, the answer most likely won’t come from Washington. Instead, look south of the Potomac. Amid the tumultuous national primaries, you could be forgiven for missing one of Virginia’s most important political developments in 2016. In January, a three-judge panel in Richmond issued a ruling that altered the state’s political terrain significantly. The decision redrew Virginia’s 3rd and 4th Congressional Districts, acting on a judgment that legislators in 2012 diluted African American influence by crowding these voters into a single majority-minority district. The move came as a number of other states, including North Carolina, Wisconsin and Florida, faced their own legal challenges to allegations of gerrymandering. Virginia’s Republican congressional delegation challenged the timing of the decision and lost. With the 2016 election behind us, both parties must consider the long-term health of our democracy and point to this new map as an opportunity. First, because redistricting breeds competitive elections, it’s undeniably good for voters. Experiences from Democratic inner cities and Republican rural towns show that one-party dominance can be a marvelous recipe for corruption and complacency. Research from the University of Oxford’s Petra Schleiter and Alisa Voznaya bolsters the point: In a study of 70 democracies, they find that meaningful party competition is crucial for limiting the scope of governmental corruption. Second, one of Virginia’s two major parties is in dire need of a reset. The 2013 gubernatorial election saw Republicans get shut out of the three major statewide offices for the first time in nearly 25 years. With Democratic presidential nominee Hillary Clinton carrying the commonwealth this week, no Republican has won a statewide race in the Old Dominion since 2009. There is a glimmer of hope. Subtle yet powerful changes in how and where the parties compete for control of Congress could produce an enduring new landscape all their own. Evidence that such a geographic realignment could spark a political one is already emerging. Consider what happened this cycle in Virginia’s 7th District, where popular Henrico County Sheriff Mike Wade was planning to challenge Rep. Dave Brat in a Republican primary. Instead, Wade ran for an open seat in the newly configured 4th District, transforming what was destined to be yet another intra-party squabble into a far more intriguing general election contest. The two districts look little alike. The 7th is the very definition of a Republican stronghold, last electing a Democrat to Congress in 1968. The new 4th District, on the other hand, is 41 percent black and was carried by President Obama with 61 percent of the vote in 2012. Wade’s record, emphasizing issues Republicans rarely touch in a congressional race, such as criminal-justice reform, was a good fit for this diverse district. For most of election night, he looked strong, trading leads with his Democratic opponent, state Sen. A. Donald McEachin, until the last 20 percent of precincts began reporting. McEachin prevailed, confirming the steep hill that Republicans had to climb. A single congressional campaign, no matter how well fought, is rarely enough to turn the tide on decades of history. Good political habits must be formed from trial and error, and a lack of competition at the House level has stymied each party’s ability to communicate beyond its demographic niche. No matter the result, Wade’s campaign is a model for what Republicans and Democrats must do across the country: Embrace new, supposedly hostile districts. Study them carefully. Learn from these voters while competing hard for their support. Elections will be lost, as meaningful realignments don’t happen overnight. But if the parties can come together on anything, let it be competitive redistricting to help save the two-party system from itself. Given the factious legacy of the 2016 race, this path forward is more urgently needed than ever before. **Read more about this issue:** Julian E. Zelizer: The power that gerrymandering has brought to Republicans The Post’s View: It’s up to voters to end gerrymandering Rob Richie and Austin Plier: Maryland can’t act alone to end gerrymandering The Post’s View: The gerrymandering jig should be up

Florida judge takes on gerrymandering; sets stage for Supreme Court cases in fall

About 10 years ago, the justices of the Supreme Court took a good, hard look at the way politicians bend, tweak and manipulate electoral boundaries in order to protect themselves and punish their enemies — and threw in the towel. The Constitution, Justice Antonin Scalia wrote for a plurality in  _Vieth v. Jubelirer_ , does not provide “a judicially enforceable limit on the political considerations that the states and Congress may take into account when districting.” In other words, politics is politics. It’s the court’s duty to decide what the law is, Scalia said, but sometimes the answer is that it is none of the court’s business. Scalia acknowledged that the Supreme Court had previously ruled otherwise. But “18 years of essentially pointless litigation” had convinced Scalia and others on the court that it was impossible to come up with a test to decide when partisan gerrymandering amounted to a constitutional violation. The political parties have been running through that green light ever since. But a judge in Tallahassee has blown the whistle, and thrown Florida politics into turmoil. Judge Terry Lewis found that two of the state’s 27 congressional districts were unconstitutional and wants a new congressional redistricting plan drawn in time for November’s election. Though the Supreme Court seemed to throw its hands up a decade ago, the ruling left states free to act on their own. And Florida voters in 2010 wrote a prohibition on partisan gerrymandering into the state constitution, which is what Lewis ruled the state’s Republican leaders violated with their plan. Lewis, whose previous judicial foray into politics involved overseeing the state’s 2000 presidential vote recount at the heart of _Bush v. Gore_ , did not mince words. A “group of Republican political consultants or operatives did in fact conspire to manipulate and influence the redistricting process,” Lewis wrote in his July 10 ruling. “They made a mockery of the Legislature’s proclaimed transparent and open process of redistricting by doing all of this in the shadow of that process, utilizing the access it gave them to the decision makers, but going to great lengths to conceal from the public their plan and their participation in it.” It was indicative of modern redistricting plans, Lewis said, where gerrymandering allows representatives to pick their constituents, rather than the other way around. “To many citizens, this process is of mild interest, but to the political parties it is a high stakes proposition, a zero sum game in which one party wins and the other loses — for years to come,” he wrote. Lewis singled out two of the districts as being unconstitutional — one held by Democratic Rep. Corrine Brown and the other by Republican Rep. Daniel Webster. A look at the map shows why redrawing those two will affect many others. Brown’s district stretches 150 miles through 10 counties, from Jacksonville to Orlando; by comparison, the Lewis and Clark Expedition looks like a straight shot. District lines shift west to pick up Democrats in the university city of Gainesville and at one point, as the judge pointed out in his opinion, it “narrows to the width of Highway 17.” Eventually, it bumps into Webster’s district, which has an “odd-shaped appendage that wraps around and under” Brown’s district. All of this, he said, was to give more Democrats to Brown and make the surrounding districts more hospitable to Republicans. Though Florida has backed President Obama in the past two presidential elections, Republicans hold 17 of the state’s 27 congressional districts. That doesn’t make Florida unusual, said Justin Levitt, a professor at Loyola Law School in Los Angeles, who operates a Web site devoted to redistricting issues. Wherever one party controls both the legislature and governor’s office, partisan gerrymandering abounds. Maryland is a good example on the Democratic side, Levitt said. But it just so happens that because of the Republicans gains in the 2010 elections, he said, Democrats had sole control of the process in only six states where 44 congressional districts were at stake. The GOP: 18 states and 210 districts. There is a racial component to all of this. Although Lewis said the evidence did not support the claim, Republicans leaders in Florida said Brown’s meandering district lines were necessary to meet the requirements of the Voting Rights Act, which forbids attempts to dilute minority voting rights. Brown is an African American, and the district has a majority black voting age population. Since most minorities overwhelmingly vote Democratic, when are attempts to preserve such districts subterfuge for partisan gerrymandering? That brings us back to the Supreme Court. As Levitt notes, there were actually five justices on the court a decade ago to find that political gerrymandering does violate the federal Constitution, at least in theory. Justice Anthony M. Kennedy voted with Scalia in throwing out that challenge to Pennsylvania’s redistricting, but said he was not drawing an absolute line. “The arguments are not so compelling that they require us now to bar all future claims of injury from a partisan gerrymander,” he wrote, prompting Scalia to say label the concurrence a “never-say-never” argument. This fall, the court has another chance. It will hear a challenge from Alabama in which Democrats say Republicans in charge packed black Democrats into legislative districts at greater rates than necessary, in order to create safer Republican seats. They claim that hurts African Americans by decreasing their chances to build coalitions in the legislature that would allow them real power. An appeals court ruled Republicans did not overuse race in drawing the lines. Four of the nine justices in the Pennsylvania case 10 years ago are gone. The new cases, _Alabama Legislative Black Caucus v. Alabama_ and _Alabama Democratic Conference v. Alabama_ , will be a new gerrymandering test for the reconstituted court.

Terry McAuliffe signals plan for special redistricting session

RICHMOND — Gov. Terry McAuliffe said Tuesday that he will order legislators back to Richmond in August for a special session — unless a federal judge grants a Republican request for more time to redraw Virginia’s congressional map. In June, a panel of federal judges ruled that Virginia lawmakers had illegally concentrated African American voters into one congressional district to reduce their influence elsewhere. The U.S. District Court for the Eastern District of Virginia reaffirmed an order for the Virginia House of Delegates to redraw the state’s 11-district congressional map by Sept. 1. The stakes are high for both parties. Republicans hold eight of the state’s 11 congressional seats, even though Republicans have not won a statewide election since 2009. Democrats point to that disconnect as proof of gerrymandered district boundaries. The matter also has implications for the Virginia House of Delegates, where the district map is under similar scrutiny in a separate court case that was tried this month. A decision is expected at the end of August. “This special session is an opportunity to work together to fix Virginia’s congressional district lines so that politicians do not have a greater say in who represents Virginians than voters do,” McAuliffe said in a written statement. McAuliffe (D) stopped short of issuing a formal call for the session. But after word leaked that one was in the works for Aug. 17, his office confirmed that the governor informed legislative leaders that he “intends” to call one. He might not be able to. The state’s congressional Republicans have appealed the reaffirmed order, saying that the districts were drawn lawfully. On Tuesday, legislative leaders filed a motion asking that the deadline be extended to Nov. 16. “This would allow the defendants the opportunity to further pursue their appeal, give the General Assembly the necessary time to prepare for a special session, and save taxpayer dollars by avoiding the potential for two special sessions without causing prejudice to the plaintiffs,” House Speaker William J. Howell (R-Stafford) and Senate Majority Leader Thomas K. Norment (R-James City) said in a jointly issued statement. “As the Constitution requires, the General Assembly will convene at the date specified by the Governor, but we are confident the Court will grant our request.” McAuliffe spokesman Brian Coy said it was never the governor’s intention to issue the writ on Tuesday. He said that McAuliffe just wanted to give legislators an informal “heads-up” about a potential session — sort of a save-the-date notice to avoid fouling up summer vacations. “It’s really just about them planning their summers,” Coy said. “It’s just a heads-up.”

Wisconsin voter ID law heads to trial

Opponents of a Wisconsin law requiring voters to show photo identifications at the polls will have their day in federal court Monday in a case likely to have an impact on other states that have amended their voting laws in recent years. Civil-rights groups sued over the Wisconsin law, initially passed in 2011, after a 77-year old woman couldn’t provide the documents necessary to receive a Wisconsin driver’s license. The Advancement Project, a voting-rights group based in Washington, contends the voter ID law places an outsized burden on minorities. The case also includes a challenge from the American Civil Liberties Union, which says elderly and low-income voters are disproportionately impacted. The case is the first to come to trial after the Supreme Court struck down a section of the Voting Rights Act used to determine whether states must seek Justice Department approval before making changes to election laws. The plaintiffs are challenging the voter ID rule under Section 2 of the VRA, a section the Supreme Court has not ruled on since affirming its constitutionality in 1984, which prohibits election rules that have discriminatory effects. Most Section 2 cases in recent years have involved redistricting, not voter identification laws. “There’s been a nationwide, unprecedented wave of these voter suppression laws,” said James Eichner, the managing director of programs at the Advancement Project and one of the attorneys who will argue the case. “Since the Shelby decision, Section 5 is gone as a tool, so the main tool the Advancement Project and other groups are using is Section 2.” If the Wisconsin lawsuit succeeds in halting the state law, voting-rights groups are likely to take the Section 2 argument to courts in other states. The Wisconsin law remains on hold until the court rules. Since the Supreme Court’s decision earlier this year, Texas and South Carolina have indicated they will enforce voter identification laws that had been blocked by courts. North Carolina passed a voter identification law earlier this year, and Virginia, Mississippi and Alabama will also enforce new voter ID laws.    *[WSU]: Wayne State University “They barely waited until the ink was dry on the Shelby decision to assign it to law,” Eichner said. “These states have seized upon the opening provided by Shelby and are seeking to basically disenfranchise voters of color.” Voting-rights groups are also suing over the North Carolina law, while a lawsuit challenging Pennsylvania’s voter ID rule is just wrapping up.

Why the Supreme Court’s decision to review Wisconsin’s gerrymandering is such a big deal

How? In large part, at least, through the magic of gerrymandering. The best way to understand it is to look at the chart below. It's a simplified grid of 50 voters distributed geographically into a tidy rectangle. Sixty percent of the voters belong to a hypothetical “blue” party, while 40 percent belong to the “red.”  Here's the thing, though: political gerrymandering is largely a question of intent. You can draw some outrageously unfair districts and then contend that you didn't mean to. That any apparent partisan imbalance is purely an accident, or because of forces outside your control. That's what Wisconsin Republicans have pleaded before the courts. They've said that the geography of the state's population disadvantages Democrats in a way that can't be helped: Democrats tend to cluster in big cities such as Milwaukee and Madison. That makes it harder for people drawing districts to avoid either splitting them up or packing them all together. As Wisconsin Republicans see it, the lopsided vote totals are incidental smoke, not fire. But the plaintiffs in the Wisconsin case have brought the statistical fire.   “A gerrymander is simply a district plan that results in one party wasting many more votes than its adversary,” Nicholas Stephanopolous and Eric McGhee wrote in their paper. “The gerrymandering party enjoys a political advantage not because of its greater popularity, but rather because of the configuration of district lines. The parties do not compete on a level playing field.”  But most of the gap is unexplainable by chance alone. Stephanopolous and McGhee say that if the difference between the parties' wasted votes accounts for more than 8 percent of total votes, it's likely the result of an unconstitutional gerrymander.  The federal court agreed, striking down the districts and ordering the state to draw new ones. “A Republican advantage in political geography, although it exists, cannot explain the magnitude of Act 43’s [the act creating the districts] partisan effect,” the court wrote in its decision. Beyond that, the plaintiffs demonstrated that in creating the districts, Republicans discarded several alternate plans that would have led to less lopsided outcomes: “the plan’s drafters created and passed on several less burdensome plans that would have achieved their lawful objectives in equal measure,” the court found. In the end, the court ruled that “Wisconsin’s modest, pro-Republican political geography cannot explain the burden that Act 43 imposes on Democratic voters in Wisconsin.” The state subsequently appealed to the Supreme Court and that's where we find ourselves today. Will the nation's highest court find Stephanopolous and McGhee's math as compelling? Stay tuned.

A chance to squash the Maryland gerrymander

Last fall, Maryland Gov. Martin O’Malley (D) and the General Assembly redrew congressional districts for the state, which the Constitution requires every 10 years. These leaders produced an egregious gerrymander, one far more contorted than the notorious 1812 Massachusetts map for which the word gerrymandering was coined. District 3, only the worst of several bizarre districts, looks like blood spatter from a crime scene, ridiculously comprising the far-flung communities of Annapolis, Towson and parts of Silver Spring, while excluding most communities between. Fortunately, this gerrymander can still be stopped. Democrats and Republicans opposed to the new map gathered enough petition signatures to give Marylanders the opportunity to repeal it in November. All they have to do is vote against Ballot Question 5 on Election Day. Rejection wouldn’t affect this year’s congressional results, but it would require the governor and General Assembly to, at the very least, redraw the congressional districts for the 2014 elections. Even better, it could finally lead to the creation of an independent commission system that would remove politics from the process once and for all. It’s important to note that the Maryland gerrymander wasn’t just aimed at replacing Rep. Roscoe Bartlett (R-Frederick) with a Democrat in District 6, though that certainly was a primary goal. It was also intended by would-be kingmakers in Annapolis to favor certain Democrats. In District 4, Rep. Donna Edwards (D-Prince George’s) lost all of her constituents in Democrat-laden, campaign-donor-rich Montgomery County, with Rep. John Sarbanes (D-Baltimore County) gaining most of them in sprawling District 3. This change gives Sarbanes an advantage over Edwards and Rep. Chris Van Hollen (D-Montgomery) — who lost many of his Montgomery County constituents, replaced by those in areas along the Pennsylvania border — in several respects, including in a future U.S. Senate primary. Treated as pawns, a majority of Montgomery County residents, and many in neighboring counties, too, were moved into different congressional districts. Most were moved for purely political reasons. There is broad opposition to this gerrymander. When it was proposed last fall, it was blasted by Common Cause of Maryland, the League of Women Voters, civil rights groups, state legislators of both parties, a supermajority of the Montgomery County Council and editorial boards across the state. In April, state Senate Majority Leader Rob Garagiola (D-Montgomery) — the candidate in the Democratic primary for the District 6 congressional seat who was clearly the intended beneficiary of the anti-Bartlett gerrymander — was overwhelmingly rejected by the voters. In July, the State Board of Elections certified that more than 59,000 voters had signed the referendum petition on the gerrymander and placed it on the November ballot. In August, the Ballot Questions Advisory Committee of the Montgomery County Democratic Party voted 11 to 1 (with two abstentions) against the redistricting map. Then, on Wednesday, Montgomery’s Democratic precinct officials defeated a motion to support the gerrymander, and the county party officially adopted “no position” on the ballot question — despite being lobbied to support the map by O’Malley, the state Democratic party chair, House Democratic whip Steny Hoyer (D-Md.), County Executive Isiah Leggett (D) and the county’s most powerful lawmakers in Annapolis. Since it’s in the nature of political parties to gerrymander whenever they can, and as blatantly as they can get away with, Maryland needs to establish an independent redistricting commission, as several states have. This would be a steep uphill climb in Annapolis, but the extreme gerrymander imposed by the governor and the General Assembly creates an opening for those who support fair and rational congressional districts. What’s needed now is the message that would be sent by a resounding no vote on Question 5. ****

Virginia redistricting plan expected to pass, but additional hurdles await

The Virginia Senate is expected to clear a controversial congressional redistricting plan Friday and send it to Gov. Robert F. McDonnell (R) for his signature, but the long-debated lines still face hurdles before they can be put into place. Drawn to reflect the results of the 2010 Census, the Republican map was approved by the state House last week for the second time. The same plan passed the chamber last year but was never approved by the Democratic- controlled Senate, which chose to advance its own set of lines. Now, with Lt. Gov. Bill Bolling (R) positioned to cast tie-breaking votes in the 20-20 Senate, Republicans are poised to advance their map, probably on a party-line tally. But Democrats have sued, saying that the General Assembly violated the state constitution by failing to complete the task in 2011. That case is pending in state and federal courts, even as the March 29 filing deadline looms for congressional candidates to make the ballot. The primary is set for June 12. The two parties have traded blame over the impasse for months, with Democrats accusing Republicans of stalling last year in expectation of winning the Senate, and Republicans suggesting that Democrats want to have unelected judges draw them a more favorable map. “At the end of the day, I believe it would be very disappointing and a great tragedy . . . that we would totally abdicate to” the courts, said Sen. Jill Holtzman Vogel (R-Winchester), the sponsor of the bill. However, Sen. A. Donald McEachin (D-Richmond) said Republicans were “the ones who said they would not compromise, so for them to suggest that we were the holdup is a complete untruth.” The Republican map would fortify most incumbent lawmakers, probably preserving the state’s congressional delegation split of eight Republicans and three Democrats. In Northern Virginia, the map would be especially helpful to Reps. Frank R. Wolf (R) and Gerald E. Connolly (D), each of whom would shed some difficult political territory and gain friendlier turf. Senate Democrats contend that the plan dilutes minority voting strength by “packing” more African Americans into the 3rd District of Rep. Bobby Scott (D) while spreading the remainder of the state’s minority voters too thinly too make a difference elsewhere. “The population of Virginia is such that we ought to have more than one minority member of Congress,” said Del. Jennifer McClellan (D-Richmond) during last week’s House debate. The plan advanced last year by Senate Democrats took a different approach, most notably by reducing the number of African American voters in Scott’s district while creating a second seat, held by Rep. Randy Forbes (R), with a significant minority population. In November, a half-dozen Virginia voters filed suit in state and federal courts asking judges to draw congressional lines for 2012 because legislators failed to do so in a timely way. The Virginia Constitution, they noted, says that the General Assembly “shall draw electoral districts . . . in the year 2011 and every ten years thereafter.” The suit got a hearing in state Circuit Court in Richmond last week, and a hearing in the federal case is scheduled for Feb. 10 in the U.S. District Court for the Eastern District of Virginia in Alexandria. In both venues, the office of state Attorney General Ken Cuccinelli II (R) is seeking to have the case dismissed. Republicans are making two arguments: Past Virginia court cases have established that the word “shall” in the constitution doesn’t mean “mandatory,” and even if the General Assembly did violate the constitution, a map drawn by the legislature is still preferable to one drawn by judges. “A court is highly unlikely to usurp the legislature’s authority to legislate a reapportionment plan on the basis that they missed their window of opportunity by one month,” said Lee Goodman, who serves as general counsel for the Republican Party of Virginia. Once the Senate passes the Republican map and McDonnell signs it into law, Goodman predicted, “I think the lawsuit will be deemed moot .” But Jeffrey M. Wice, a redistricting attorney who has represented Virginia House Democrats, said that while “courts often prefer to leave drawing maps to legislatures, courts also have to interpret the constitution in a way that follows the law. And the Virginia legislature has clearly run afoul of the state constitution.” Under the Voting Rights Act, Virginia’s map must also receive “pre-clearance” from the Justice Department before it can be put into place to ensure that it does not violate the rights of minorities. That process can take as long as 60 days, though lawyers on both sides of the issue said Justice can move more quickly if necessary.

With just one day to go before he leaves office, North Carolina Gov. Pat McCrory (R) threw a legal hail mary to the U.S. Supreme Court in another apparent effort to undermine his Democratic successor's ability to govern. McCrory filed an emergency request to the Supreme Court asking the justices to pause court-ordered special elections for more than two dozen state legislative districts in 2017 -- special elections in which Democrats could have an opportunity to pick up seats in North Carolina's GOP-dominated legislature. A federal court found this summer that 28 state House and Senate districts were racially gerrymandered, but the three-judge panel made the unusual decision to let the election go forward in those districts because they decided it was too late to redraw the maps. After the election, the court ordered the legislature to redraw the lines by March and hold special elections later in 2017. Republicans have a veto-proof supermajority in both North Carolina chambers. Democrats, who seized the governor's mansion this fall, were excited at the prospect of having a rare second chance to pick up state House and Senate seats in 2017. If the Supreme Court grants McCrory's request for a stay, though, Democrats could have to wait until the 2018 midterm elections to try to win more seats under a new electoral map. That would mean Gov.-elect Roy Cooper (D) would spend two years -- instead of potentially far less time -- working with a Republican-dominated legislature that's already proved to be combative. After Cooper unseated McCrory this fall, Republicans convened a special session and passed legislation that would limit his power to appoint Cabinet positions and state and local elections boards. McCrory signed the legislation even though he described parts of it "wrong and short-sighted." McCrory's government was already appealing the court's decision to require lawmakers to redraw the map, but the incoming Democratic governor could simply drop the appeal. McCrory's request comes a day before he leaves office; Cooper will be sworn in shortly after the clock strikes midnight and Saturday turns to Sunday. It appears to be one more, last-minute attempt to stop a map-redrawing and special elections from going forward that could cause Republicans to lose some power in the state legislature. "On Election Day, millions of North Carolina voters went to the polls and selected the state legislators who would represent them in the general assembly for two-year terms in accordance with the North Carolina Constitution. Or so they thought," reads the petition, which was sent to Chief Justice John Roberts, who handles emergency appeals for the 4th Circuit but would likely refer it to the entire eight-member court.  On Friday, Cooper filed his own lawsuit against Republicans: To stop the recently passed law taking away his power to appoint people to the state elections board. On Friday evening, a county judge agreed to put a temporary hold on the law from going into effect on Jan. 1 until the lawsuit could go forward. Cooper's legal team said in court more challenges would be filed in the weeks to come, which means North Carolina will likely be awash in lawsuits in the new year.

The Democratic Party’s future could be on the line in 7 hugely important governor’s races

And Democrats have been locked out of power in some key swing states ever since. Democrats' quickest way back to relevancy, then, is to win governor's races in 2018. That would at least give them veto power over post-2020 Republican-drawn maps and, in the worst-case scenarios, kick it to the courts. “That alone would result in considerable gains for Democrats,” said Mark Gersh, a longtime redistricting expert at the Democratic-leaning National Committee for an Effective Congress.   After even more steps backward in the 2016 election, it's not an exaggeration to say these seven races could be most important races of this entire decade. Virginia is a vital test for Democrats' renewed focus on redistricting, since it is the first governor's race in which the winner will get a say in redrawing a state's electoral maps. Gov. Terry McAuliffe (D), who co-chairs the Democratic governors' redistricting fund, is term-limited in 2017. On the line are glaring disparities between how Virginians vote and who represents them at the federal and state level: Virginia has voted for the Democratic candidate for president in the past three elections and won nearly every statewide race in recent years, yet Republicans control two-thirds of the state House and have a slim, two-seat majority in the state Senate. In 2017, Republicans will hold seven of 11 congressional seats. Some gerrymandering experts think if Democrats have more of a say in drawing new maps, they could pick up as many as three congressional seats and take a majority of that delegation.     Those decisions and the state's “Fair Districts” law mean it's unlikely we'll see another hugely ambitious attempt at a gerrymander even if Republicans do control the entire redistricting process. But control still matters, simply because of how many districts are at stake (tied for the third-most in the country), and Democrats stand to possibly gain as many as two or three seats if they have a Democratic governor. The GOP is very likely to retain its stranglehold on the state legislature, where it holds a 25-15 majority in the state Senate and a 79-41 majority in the state House. That means the governor’s race is by far Democrats’ best ticket to a seat at the table. Gov. Rick Scott (R) is term-limited. Plenty of names have been floated on both sides, including former state Agriculture Commissioner and former congressman Adam Putnam (R), former St. Petersburg mayor Rick Baker (R), former state House speaker Will Weatherford (R), outgoing congresswoman Gwen Graham (D) and Tampa Mayor Bob Buckhorn (D). So at this point, it’s anyone’s guess. But it will be a big one for Democrats.  One of the most successful gerrymanders last cycle was in the Keystone State, where Republicans used their newfound power after the 2010 election to shore up vulnerable incumbents in the Philadelphia suburbs and elsewhere. While Republicans controlled just seven of 19 districts before 2010, they have rather easily held on to 13 of 18 districts this whole decade. What that also means, though, is that those suburban Philadelphia districts could just as quickly become a little less favorable. And for Democrats, that probably means reelecting Gov. Tom Wolf (D), since Republicans control two-thirds of the state Senate and more than 60 percent of the state House. Doing so could result in a two- or three-seat Democratic gain in the House.   As in Pennsylvania, their advantages in the state legislature are pretty insurmountable. They hold nearly three-fourths of the state Senate (27-10) and 56 percent of the state House. Therefore, whether the GOP will control redistricting will likely come down to the open governor’s race next year. Gov. Rick Snyder (R) is term-limited. Potential successors include state Attorney General Bill Schuette (R), Lt. Gov. Brian Calley (R), outgoing congresswoman Candice S. Miller (R) and Rep. Daniel Kildee (D). Democrats could also try to win back the state House, but they haven't made much headway there. The state is likely to lose another seat due to the 2020 Census, and Democrats could gain two or even three seats with a better map.  In other words, the open governor's race is one of Democrats' only opportunities to re-wedge themselves into the map-drawing conversation (and gain as many as three congressional seats). But they could struggle from a bench problem after spending the past decade in the political wilderness.     If they do knock him off, the most bullish Democrats think they can regain as many as two congressional seats through helping redraw maps. But, as in Ohio, their bench appears to be relatively thin, especially for a traditionally blue-leaning state.   Back then, it was one of only a handful of states where Democrats had total redistricting control, and they'd love to have it again, given the state has 18 districts. Standing in their way for now is GOP Gov. Bruce Rauner (R), who is up for reelection in 2018 and a top target in this clearly blue-leaning state.

D.C. law student takes case against Md. gerrymandering to Supreme Court

Steve Shapiro recently pulled his first all-nighter in years. He worked until about 1 a.m. last month on an assignment for a class at American University’s Washington College of Law, where he is a first-semester 1L. From then until dawn, he pored over his brief due at the U.S. Supreme Court, where his battle against Maryland’s often-criticized gerrymandered congressional districts will be heard this week in a case that bears his name. At age 55, Shapiro is not the typical law school newbie; he’s more often mistaken for a professor. It was his decades-long fight with Maryland’s political leadership over redistricting that, in part, fueled his decision to leave his job as a career federal employee and enroll full time in law school. Before he ever took his first law class, he served as his own lawyer, filing the original complaint in what is now called _Shapiro v. McManus_ and a subsequent appeal after losing the first round. “With each brief, I got a little bit better at it,” Shapiro said in a recent interview in the school’s law library. Still, if he had known what he’s learned in just two months of law school, “I could have made them better.” Shapiro now has a seasoned lawyer specializing in Supreme Court practice at his side. They will argue a narrow procedural issue Wednesday in the hope of keeping Shapiro’s lawsuit alive. If they succeed, they would still face an uphill battle on his bigger point: that partisan gerrymandering is a threat to an individual’s constitutional rights. Judges and commentators have conceded that, during Maryland’s 2011 reapportionment, the state’s Democratic leadership put on a master class in manipulating district lines for maximum effect. Democratic officials stated plainly that their goal was to make seven of the state’s eight congressional districts safe for Democratic candidates — as opposed to six from the previous redistricting. And they succeeded. But is that a matter for the courts, or is it just politics? More than a decade ago, the justices of the Supreme Court took a hard look at the way politicians bend, tweak and manipulate electoral boundaries to protect themselves and punish their enemies — and threw up their hands. At the time, Justice Antonin Scalia acknowledged in a case called _Vieth v. Jubelirer_ that the court had long before held out the possibility that partisan gerrymandering could be so severe that it would violate the Constitution’s protection of equal representation. But “18 years of essentially pointless litigation” convinced Scalia and others on the court that it was impossible for judges to come up with a test to decide when partisan gerrymandering — as opposed to racial gerrymandering — went too far. Shapiro, a Democratic activist in Montgomery County, would like to give the court another chance. But his suit was stopped last year before it got to first base. Although most redistricting challenges are supposed to be heard by a three-judge panel, a single federal district judge dismissed Shapiro’s case. The judge cited a rule by the U.S. Court of Appeals for the 4th Circuit, which covers Maryland and Virginia, giving district judges greater discretion to dismiss cases in a way that Shapiro claims is unique in other federal courts and contrary to Supreme Court precedent. Even as Shapiro and others have repeatedly failed in their legal challenges to Maryland’s congressional boundaries, the district map has been singled out for its creativity. The 3rd Congressional District, now held by Democratic Rep. John Sarbanes, has been called one of the most gerrymandered in the nation, roping together voters in Silver Spring, northern Montgomery County, Columbia, Annapolis, the city of Baltimore, and Baltimore County. U.S. Circuit Judge Paul V. Niemeyer likened it to a “broken-winged pterodactyl, lying prostrate across the center of the state.” It has also been compared to a blood splatter at a crime scene. Nevertheless, Niemeyer was part of a unanimous three-judge panel in a case separate from Shapiro’s that found the redistricting did not discriminate racially and noted the ruling in the 2004 _Vieth_ case that partisan gerrymandering seems beyond the court’s reach. Shapiro lives in the 8th Congressional District, which starts in the corner of Maryland’s westernmost border with the District of Columbia and roams through Montgomery, Prince George’s, Carroll and Frederick counties before ending at the Mason-Dixon line separating the state from Pennsylvania. Even U.S. District Judge James K. Bredar, who dismissed Shapiro’s suit, said he had a point. “It may well be that the 4th, 6th, 7th and 8th congressional districts, which are at issue in this case, fail to provide fair and effective representation for all citizens,” Bredar wrote. But he, too, cited Supreme Court precedent: “The power to address plaintiffs’ concerns thus lies not with the judiciary but rather with the state of Maryland and the United States Congress.” In August, Maryland Gov. Larry Hogan (R) named a commission to examine ways to make redistricting fairer by turning the power to draw congressional boundaries over to a nonpartisan independent panel. Such a proposal would have to win approval in the state’s General Assembly, where Democrats — who have promised to resist the plan — hold large majorities in both chambers. If the Supreme Court agrees with Shapiro that his case should be heard by a three-judge panel, it would provide another case to get the partisan gerrymandering issue back before the justices. Shapiro’s ultimate hope lies with Justice Anthony M. Kennedy. In the _Vieth_ case, Kennedy agreed that the challenge to a redistricting plan in Pennsylvania should fail, but he did not join Scalia in saying all such cases are doomed. The case did not require that the court “bar all future claims of injury from a partisan gerrymander,” Kennedy wrote, in what Scalia labeled a “never-say-never” concurring opinion. “First Amendment concerns arise where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views,” Kennedy wrote. That is what happened in Maryland, according to Shapiro and Michael B. Kimberly, the Supreme Court practitioner he brought on board. Shapiro turned to Kimberly after losing the appeal at the 4th Circuit. “I read in a magazine how much your chances improved of the [Supreme] Court taking your petition” if you’re represented by someone who regularly argues before it, Shapiro said. He added: “And how much better a chance you’d have if you have _any_ attorney representing you.” Shapiro began making calls to some of Washington’s prestigious law firms. Shapiro “used to play softball with the partner in the office next to me,” said Kimberly, an associate at Mayer Brown. The partner, Evan Tager, took Shapiro’s case next door. In a matter of hours, the deal was struck. “He is an enterprising man,” Kimberly said of Shapiro. “He is much more hands-on than the average client. Understandably — it’s his case.” Like Shapiro, Kimberly is also a Democrat. They acknowledge that if the suit is successful, it is Maryland’s Republicans who stand to gain. Shapiro recruited Republicans Maria B. Pycha of Baltimore County and O. John Benisek, a tea party activist in Washington County, to join him in the challenge. “That’s one of the things I love about this case,” Kimberly said. “Your own ideology shouldn’t make a difference.”

Democrats should not delay redistricting reform

_Ellen Tauscher, a former Democratic member of the U.S. House of Representatives from California, is co-chair of YouDrawTheLines2021. John Tanner, a former Democratic member of the U.S. House of Representatives from Tennessee, is a member of the national steering committee ofYouDrawTheLines2021._ Congress has grown more polarized and paralyzed partly because of partisan redistricting in key states around the country. Gerrymandering by Democratic and Republican legislatures has made most congressional districts so red or blue that the campaigns are won or lost in the primaries. As a result, general elections have become irrelevant in all but a few dozen of the 435 House races. Members of Congress are accountable only to the partisan bases of their parties. The framers of the Constitution would be shocked that so few of those in the “People’s House” are at risk in general elections. The answer is to take the redistricting process out of the hands of state legislatures and governors and put it in the hands of nonpartisan citizens redistricting commissions. The Maryland legislature has a chance to put an initiative on the ballot this fall to create a citizens redistricting commission, and we encourage it to do so before the 2016 legislative session ends Monday. Citizens redistricting commissions in Arizona and California created fair districts based on such common-sense criteria as contiguous geographical and municipal boundaries and “communities of interest.” Both of these commissions were created by ballot initiative. The people spoke and said they wanted fairer districts created by nonpartisan commissions, not partisan officeholders seeking to retain power. Maryland Gov. Larry Hogan (R) proposed a citizens redistricting commission. Unfortunately, the Democratic-controlled legislature has shown no enthusiasm for the measure. The Democratic leadership of the legislature has concerns about disarming in the redistricting wars. Some have suggested that they would be willing to put a citizens redistricting commission on the ballot if a Republican-dominated state, such as Virginia, did so. After all, they argue, that would only be fair. But what is fair to the American people about the current situation? As Republican legislatures have done, Maryland’s Democrats drew some of the most gerrymandered districts in the country. Manipulating the process for partisan reasons is not fair to voters, no matter which side does it. Although we understand the partisan concerns of our fellow Democrats, Congress and state legislatures will function better when the lines are drawn fairly, enabling the election of less partisan representatives who can work together to get things done for their constituents. In the 1990s and 2000s, there were upward of 60 to 80 competitive congressional districts. Members from those districts, both Republican and Democratic, were motivated to work together to pass important legislation, including a balanced budget. Today, there are at best 30 competitive districts in the country, not nearly enough members to serve as a locus of power for bipartisan compromise in the House. If Congress is ever to act on critical issues such as income inequality, campaign finance and climate change, the legislative solutions will come from those who are willing to work together. As Justice Ruth Bader Ginsburg wrote in a ruling last summer affirming the role of citizens through ballot initiatives to take line-drawing from state legislatures and governors and give it to nonpartisan redistricting commissions, “voters should choose their representatives, not the other way around.” Voters in Republican-led states — Arizona, Florida and Ohio — have voted to reform the redistricting process. Voters in blue states such as California have, too, and Illinois voters might this November. In doing so, voters have the opportunity to create fairer districts, elect members of Congress who answer to their constituents and who can work together to get things done. Our bipartisan organization, YouDrawTheLines2021, is dedicated to supporting ballot initiatives to establish nonpartisan citizens redistricting commissions. We urge our fellow Democrats in the Maryland legislature to do the right thing and let voters decide who should draw the lines in 2021. **Read more about this issue:** Nancy Soreng and Dianne Blais: An independent panel for redistricting The Post’s View: Can Maryland and Virginia join forces on redistricting reform? The Post’s View: The gerrymandering jig should be up

A messy situation in Montgomery may prod Maryland to reform how judges are selected

AUDREY CREIGHTON, the Montgomery County Circuit Court judge whose relationship with an ex-con has stirred controversy, will appear on the November general- election ballot after winning a Democratic Party nomination in Tuesday’s primary. So will Daniel Connell, the Poolesville attorney who raised questions about her conduct and whose candidacy has roiled the county’s legal community; he won a Republican nomination. Thus an already muddled process threatens to become even messier, a situation that should prompt state lawmakers finally to fix how judges are selected. We recently detailed the dilemma surrounding this year’s election for four seats on the Montgomery Circuit Court. Judge Creighton is one of four sitting judges seeking election to 15-year terms. Maryland has a hybrid selection system whereby local judicial nominating commissions screen applicants and provide a list to the governor, from which he makes appointments. His choices face voters in the next election. Usually the incumbents are unchallenged and the elections attract little notice. Not so this year after Judge Creighton was allegedly attacked by a felon with whom she had a close personal relationship. The man, who has a history of assaults, car thefts, burglaries and gun thefts, was a client of the judge when she was a public defender, and he lived with her for three months last year and three weeks this May. Questions about Judge Creighton’s conduct and judgment center on whether she initially misled police and whether she improperly gave him legal advice last year when he was charged with marijuana possession. Judge Creighton, who returned to the court this week after personal leave that followed the alleged attack on May 19, has declined comment. Sources have told us the matter has been referred to the Maryland Commission on Judicial Disabilities. We hope it’s sorted out by the time voters go to the polls. But the more important problem is the judge-picking system. District Court judges, appointed by the governor with Senate consent, don’t stand for election; appeals court judges face retention elections in which voters are given a yes-no option. Only circuit court judges must engage in competitive politicking, complete with fundraising and currying favor from people who may appear before them. And lest anyone think the races are nonpartisan, consider that Maryland’s irrational rules bar unaffiliated voters from selecting nominees in the primaries. There have been past attempts at change. A thoughtful commission in 1996 called for the depoliticization of judicial selection and establishment of a merit system with more independence. We hope both gubernatorial candidates, Lt. Gov. Anthony G. Brown (D) and Republican nominee Larry Hogan, will put judicial reform on their agendas. **Read more about this topic:** The Post’s View: An unappealing choice in Montgomery County Circuit Court contest

Va. House Speaker holds key to redistricting vote

RICHMOND — The fate of a surprise state Senate redistricting plan that has Democrats in an uproar and threatening to derail a transportation funding fix lies, for the moment, in the hands of one man: House Speaker William J. Howell. All 100 delegates technically have a say on the bill when it comes up for a vote on the House floor, perhaps as early as Thursday. Senate Republicans muscled the measure through without notice Monday. But in his role as speaker, Howell could very well decide the matter on his own through a procedural move. He has given little indication of how he views the bill, and most House Republicans were tight-lipped Wednesday about the way forward. And when the matter appeared on the House calendar for the first time on Wednesday, it was quickly scuttled for the day — leading some to conclude that House Republicans were stalling. “We’ve held it up . . . so obviously people are concerned about it,” said Del. Robert G. Marshall (R-Prince William), recalling how one of his hot-button bills was passed by last year “while they were trying to figure out ways to kill it.” A Republican insider who discussed the redistricting plan with multiple legislators said Wednesday that GOP delegates are concerned that the Senate’s move will kill any prospects for cooperation on the governor’s transportation agenda. “My sense is the House is getting squishy,” said the Republican, who spoke on the condition of anonymity to be candid about internal party discussions. “These guys are freaking out. . . . I think they’d like to pass the hot potato.” One Republican delegate who asked not to be identified said many were concerned about how their Senate GOP brethren had approved the new districts without public notice or hearings. “I don’t think anybody signed up for this,” the delegate said. “There’s an awful lot of Republicans that are not at all happy with the situation.” On Monday, Senate Republicans passed a House bill that called for minor “technical adjustments” to House district boundaries but amended the bill so that it also enacted sweeping changes to all of the Senate’s 40 districts. Republicans said the new maps would correct gerrymandered districts that they say Democrats pushed through in 2011 when they controlled the Senate. Democrats said the move runs afoul of the state constitution, which specifies that redistricting take place after the decennial census in years ending in 1. The new map would create an additional majority-black district in Southside but also would make at least eight other districts more heavily Republican. The proposed districts, which require the governor’s signature and would take effect in 2015, could help Republicans make gains in the now evenly divided Senate. As the bill comes to the House floor, opponents plan to object on the grounds that the amendment approved by the Senate was not germane to the underlying bill. Richmond operates under different rules than Washington, where all manner of things routinely get tacked onto unrelated bills. Virginia’s Capitol operates under the “single object rule,” which prohibits amendments from radically altering original bills. The speaker has said that he would address the issue, if asked. It would be up to Howell, and Howell alone, to rule on the issue. If he decides the amendment was not germane, the bill is dead. If he rules it is germane, the House will vote on the amended bill. If it passed, it would go to Gov. Robert F. McDonnell (R) for his signature. Republicans have been weighing their next move and consulting lawyers who have warned staff members and legislators that they should not speak publicly because of the likelihood of litigation. Meanwhile, Democrats have been exploring what course of legal action they would take if the bill becomes law, poring over the state constitution, a recent Richmond Circuit Court decision in a redistricting case and similar cases across the country. __On Wednesday, Del. David J. Toscano (D-Charlottesville) reminded the speaker of his options on the House floor. “We didn’t do this,” Toscano, who is the House Democratic leader, told his fellow delegates. “They put us in a very difficult situation. I hope we can find a way to get out of it. For several reasons, it should be pretty easy for us to dispose of this bill.” Toscano said he has not spoken to Howell about how the speaker would handle the redistricting proposal. Like others in recent days, Toscano said the move was not in the spirit of how business is done in the General Assembly. “This interjects a level of partisanship we don’t need,” he said. McDonnell planned on support from Democrats for his ambitious transportation funding plan, but they say the redistricting plan has ruined any chance of that. “If they’re going to play these games with us, they should not expect our cooperation,” said Senate Minority Leader Richard L. Saslaw (D-Fairfax). McDonnell has voiced his displeasure and frustration over the Senate’s decision on redistricting, which has shifted the conversation away from the governor’s final-session priorities of transportation and education. “It’s an unexpected issue to have to contend with,” said McDonnell spokesman Tucker Martin. “We’re out there every day talking about transportation, education and the budget. We will deal with other legislation in due course, as it gets to us, if it gets to us.”

Supreme Court case has big implications for National Labor Relations Board

The U.S. Supreme Court on Monday heard oral arguments in a case that could invalidate hundreds of National Labor Relations Board rulings and set the agency back more than a year in its workload if it loses. The dispute could also determine when presidents can use so-called “recess appointments” to fill key positions that generally require Senate approval, creating serious implications for the White House.    *[WSU]: Wayne State University MORE: Supreme Court questions Obama’s recess appointment power    *[WSU]: Wayne State University The case, NLRB v. Noel Canning, challenges a D.C. Circuit Court of Appeals decision early last year that said the president’s 2012 board appointments, which occurred while the Senate was on break, were unconstitutional. Hundreds of NLRB rulings involving those panel members are now at stake.    *[WSU]: Wayne State University **How did this happen?**    *[WSU]: Wayne State University During Senate breaks, the president has the authority to make “recess appointments,” but Republicans in 2012 were holding _pro forma_ sessions every three days to keep that from happening. For what it’s worth, Democrats and Republicans have both used that tactic when the opposite party controlled the White House.    *[WSU]: Wayne State University The Constitution does not specify how many days the Senate has to be away before a president can make a recess appointment, but Republicans argue that none have taken such action during a break of less than 10 days. Democrats last year made the confirmation process easier by changing Senate rules to prevent the filibusters that have allowed the minority party to block certain types of nominees. Nonetheless, _pro forma_ sessions will remain as a potential barrier if the Supreme Court determines Obama’s recess appointments were invalid, keeping the door open for more conflicts when one party controls the Senate and the other holds the presidency.    *[WSU]: Wayne State University **Cases in limbo**    *[WSU]: Wayne State University The Supreme Court’s ruling will determine whether the NLRB has to revisit hundreds of labor disputes that were decided under the board members in question. That leaves scores of workers and their employers in limbo. Keep in mind that the board’s composition has changed since the NLRB rulings in question took place. Although the panel still leans Democratic, there is no guarantee that its decisions would be the same in each case. The Senate approved a full slate of board members in July, confirming Harry Johnson III, Philip Miscimarra, Nancy Schiffer, Kent Hirozawa and Mark Pearce. The decisions by that panel are valid in the sense that they do not involve questions about the legitimacy of its members.    *[WSU]: Wayne State University The NLRB decided after the lower-court decision in January 2013 that it would move forward with business as usual, issuing more decisions with the controversial board members in place. Critics have questioned that decision, saying the NLRB only added to the potential backlog it would face if it loses its appeal in the high court.    *[WSU]: Wayne State University “Regardless of whether you’re in the business community or organized labor, you want to know that the agency is operating with legal authority,” said Steven Bernstein, a labor lawyer who represents employers. “You want to get it right the first time and make the results stick so you don’t face the possibility of waking up and doing it all over again.”    *[WSU]: Wayne State University Labor groups largely agreed that the ruling would create difficulties for the NLRB as it tried to move forward. “Each day that Noel Canning remains on the books means further chaos and disarray at the NLRB and difficulties in enforcing workers’ rights,” the AFL-CIO said in a statement last year.    *[WSU]: Wayne State University The union’s general counsel could not be reached for comment on Monday. NLRB spokesman Greg King said on Monday that the agency does not comment on ongoing litigation. _Follow Josh Hicks onTwitter, Facebook or Google+. Connect by e-mail at __josh.hicks@washpost.com. _VisitThe Federal Eye, The Fed Page and _Post Politics for more federal news. ______E-mailfederalworker@washpost.com __ with news tips and other suggestions._    *[WSU]: Wayne State University

Districts should represent all Marylanders, not just Democrats

Regarding the Dec. 9 Metro article “Political maps case to proceed”: I am a resident of rural Howard County, where my gerrymandered political jurisdiction, Maryland’s District 7, extends to distant inner-city Baltimore. How could anyone outside the entrenched Maryland Democratic Party look at a political map of Maryland and not recognize that the state has been gerrymandered to ensure the continued incumbency of the Democratic majority? Redistricting since 2010 has robbed many voters in Maryland of a legitimate chance to express their choice for political leadership by geographically diluting their votes. Also, the fact that the lower courts have supported the status quo suggests that the politically elected judicial system in Maryland is the legal arm of the Democratic Party. The result of gerrymandering is a continued weakening of the trust of the citizens of Maryland in fair electoral and judicial processes in the state. It is my hope that Steve Shapiro, who filed the lawsuit challenging the districts on behalf of himself and others, is successful in his spirited effort to challenge the entrenched powers in the state government so that on Election Day the results will represent the wishes of the electorate, not the unethical will of the Democratic Party. ****Ronald A. Stup** , Highland**

The Supreme Court’s ruling in favor of redistricting commissions, explained

The Supreme Court decided Monday it's OK for states to create independent redistricting commissions to draw electoral boundaries,  possibly paving the way for more state legislatures to get out of the business of drawing lines. Monday's 5-4 decision ruled against the Republican-controlled Arizona state legislature, which sued to get its line-drawing power back from an independent commission that voters set up in 2000. (The case was literally called _Arizona State Legislature vs. Arizona Independent Redistricting Commission._ )    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico In setting up the independent commission, Arizona voters were trying to get away from partisan gerrymandering -- or the process of lawmakers carving out often-oddly shaped district boundaries to rig elections for a given politician or party. Gerrymandering has created a mess of district maps and, in the mind of some, added to polarization in Congress. [ _The increasingly ugly gerrymandering of America -- in 7 maps_ ]    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico Six states have some kind of redistricting commission, with another in Iowa that has considerable control over the map. But at least 11 other state legislatures use some kind of commission to help them draw lines or get over gridlock. That number could increase after Monday's decision -- as states ramp up for the next round of redistricting after the 2020 Census. But drawing district lines is still a largely partisan game controlled by state legislatures, and the Supreme Court has yet to touch on that. Here's the red/blue break down of Monday's decision: Monday decision hinged on one word in the Constitution: "legislature." When our founding fathers said "time, places and manner of holding elections" for Congress "shall be prescribed in each state by the legislature thereof," did they mean the actual body of lawmakers in the legislature? Or was it a loose term to refer to all the people -- from voters to lawmakers-- who make up the broader legislature? The court went with the loose interpretation. Justice Ruth Bader Ginsburg, who wrote the majority opinion, said: "The people of Arizona turned to the initiative to curb the practice of gerrymandering” and to ensure that voters chose their representatives, not the other way around. “The Election Clause does not hinder that endeavor.”    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico Independent commissions like Arizona's (made up of two Democrats, two Republicans and one independent) would on the surface seem like a fairer way to draw electoral districts than giving the power to partisan lawmakers whose jobs depend on those same district lines. But Republicans say that's a fallacy. Independent commissions should be renamed Unaccountable Commissions of Unelected People, said Matt Walter, the president of the Republican State Leadership Committee, which works to keep Republicans in control of state legislatures. Drawing district lines is an inherently political process that for which the Constitution has set up appropriate checks and balances, he said. Those checks? Elections. If voters don't like the way districts are drawn, they can vote their lawmakers out of office in the next election. You can't do that with an independent commission. "We don't believe in benevolent despots," he said. During oral arguments for this case in March, it didn't sound like the Supreme Court was going to go their way. But Democrats are cheering Monday, because in upholding independent commissions' ability to draw electoral boundaries, the court is taking the line-drawing power away from many Republican legislatures like those in Arizona. Democrats controlled the redistricting process in very few states last time around. And to this day, Republicans control a huge majority of partisan state legislative chambers -- 68 of the 98 chambers. And they're increasingly drawing lines to keep themselves in power, said former congressman Mark Schauer (D-Mich.), the director of a Democratic super PAC, Advantage 2020, which is trying to get Democrats a fighting chance in the next redistricting battle.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico "Those Republican-controlled legislatures, as a result of Republican-controlled gerrymandered districts, and aren't about to create an independent nonpartisan process," he said. Schauer thinks more states could create a commission  -- even though he points out only about half of states allow voters to set up ballot initiatives like the one in Arizona. The other half are probably stuck, because state legislators aren't going to budge and let commissions draw their districts for them. "It's an unusual case where legislatures are going to do it by themselves and take away their power," said Joseph Sandler, an elections law expert and Washington, D.C., lawyer. All the states but Montana (which has one congressional district because of its population) created their independent redistricting panels by ballot initiative. For all this talk of independent commissions, the vast majority of electoral line-drawing in America is still done by state legislatures. So each side is still heavily focused on winning state elections. For now, Schauer's goal for the 2020 election -- before the next maps are drawn off new Census data -- is to try and win at least a seat at the table in legislatures in key battleground states such as Michigan, Ohio, Pennsylvania, Wisconsin, North Carolina, Florida and Virginia -- all Republican-controlled state legislatures right now. That's the power to redraw 107 congressional seats, or about one-fourth of Congress. It also doesn't appear the Supreme Court is going to do anything about gerrymandering anytime soon. The justices have traditionally ducked the issue because they've found it hard to create a test to measure its constitutionality, said the Washington Post's Robert Barnes.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico Next term, the court will rule on how to count people within a congressional district. But it appears they'll avoid ruling on the way most districts get drawn.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday   *[UNM]: University of New Mexico Independent commissions weren't the only thing saved by Monday's ruling. The court also essentially upheld ballot initiatives as a way to create election law, which is exactly what Arizona voters did in 2000 when they set up their independent commission. Ruling unconstitutional the Arizona independent commission created by ballot initiative would have put in jeopardy many election laws such as Voter ID rules and changes to state constitutions that were created by ballot initiatives, a form of democracy especially popular out west, Sandler noted. That would have been the real upheaval decision. The impact of today's decision will be revealed after the 2020 Census.

U.S. court denies Va. GOP request for congressional redistricting extension

RICHMOND — A panel of federal judges on Wednesday denied Republicans’ request to delay a court order to redraw a Virginia elections map that was found to illegally pack African Americans into a single congressional district at the expense of their influence elsewhere. The ruling increases the likelihood that state legislators will have to abide by a call from Gov. Terry McAuliffe (D) to return to Richmond this month to tackle redistricting. The Republican-controlled General Assembly has been reluctant to accept an earlier court ruling that set a Sept. 1 deadline to adopt new congressional district boundaries. Republicans requested an extension to Nov. 16 to give their congressional counterparts time to exhaust an appeal to the Supreme Court. In a statement, House Speaker William J. Howell (R-Stafford) and Senate Majority Leader Thomas K. Norment Jr. (R-James City) said they were disappointed by the court’s having denied the request for more time. “We continue to believe that an extension would have preserved the right of the defendants to fully litigate this case, while still giving ample time for the Commonwealth to prepare in advance of the 2016 Congressional elections,” they said in a statement. “We are evaluating our next steps.” In response to the ruling, McAuliffe said it is obvious that the current congressional map seeks to disenfranchise African American voters. “It is now time for legislative leaders to produce a plan,” he said in a statement. “I am committed to a fair process that ensures that their fundamental right to fair elections is not drowned out by politically manipulated computer programs and cynical attempts to undermine the voting strength of minority voters.” Last week, McAuliffe asked for — and Virginia Republicans rejected — a request to meet ahead of the special session to work out a compromise on the map. He could veto a new redistricting map passed by the General Assembly, a decision that experts say would give the courts the power to set district boundaries. Of the state’s 11 congressional seats, Republicans hold eight and Democrats three. A majority of a three-judge panel of the U.S. District Court for the Eastern District of Virginia ruled that Republicans didn’t prove that their appeal was likely to succeed or that adhering to the Sept. 1 deadline would pose significant problems. The dissenting judge, Robert E. Payne, said he could have granted the extension. The legal challenge that began this litigation is separate but similar to one that challenges the concentration of minority voters in 12 state House of Delegates districts. The court is still deliberating on that case.

A Florida judge just voided the state’s congressional districts. Here’s what you need to know.

Last night a circuit court judge in Florida voided the state's congressional map, citing a "secret, organized campaign" by Republican operatives that "made a mockery of the Legislature's transparent and open process of redistricting." The ruling concluded that District 5, held by Democrat Corrine Brown, and District 10, held by Republican Dan Webster, will need to be redrawn. From a purely practical standpoint, this means redrawing any surrounding districts as well, and possibly many of the state's 27 districts overall. "If one or more districts do not meet constitutional muster, then the entire act is unconstitutional," Judge Terry Lewis wrote.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday The ruling is something of a barn-burner, and well worth a read. Lewis opens it up with a quote from George Washington warning of "cunning, ambitious and unprincipled men" who will "subvert the power of the people" and "usurp for themselves the reins of government." Below, three big takeaways.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday In 2010, Florida voters attempted to fix the issue of partisan gerrymandering by passing two amendments to the Florida Constitution that became known as the Fair District amendments. The amendments limit -- but do not eliminate -- the state legislature's discretion in drawing district boundaries, by forbidding districts drawn "with the intent to favor or disfavor a political party or incumbent." But Lewis found ample evidence that Republicans went ahead and did this anyway. They "conspire[d] to manipulate and influence the redistricting process ... with the intention of obtaining enacted maps for the State House and Senate and for Congress that would favor the Republican party." The ruling describes in detail all manner of backroom dealing and horse- trading that went into the redistricting processes. It sounds an awful lot like the process U.S. Rep. Alan Lowenthal said happened in California during the 2000 redistricting, before the state handed off its redistricting to an independent commission.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday This tendency toward secrecy and dealmaking appears to be business as usual in redistricting nationwide, and it is precisely the reason any attempts to fix the problem of gerrymandering that leave the process in politicians' hands are destined for failure. In the zero-sum game of politics, the stakes are too high for lawmakers to resist the temptation of manipulating district boundaries for partisan gains. "In short," Lewis writes, "winning is everything." Lewis singles out the 5th District, saying it is "visually not compact, bizarrely shaped, and does not follow traditional political boundaries as it winds from Jacksonville to Orlando." Its finger-like appendage jutting into Seminole County "was done with the intent of benefitting the Republican Party." The 5th District was originally drawn in the 90s with the intent of creating a majority-minority district, and by extension a safe Democratic seat. Democrat Corinne Brown has held that seat since 1992.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday But as I've described in detail before, when you concentrate minority voting power in one district, you necessarily dilute it everywhere else. You end up with district-level segregation: minority districts for minority voters. Judge Lewis notes this in the Florida case -- the appendage from District 5 going into Seminole County had the net effect of increasing the minority population in District 5, and decreasing it in neighboring District 7, making that district more friendly to Republicans.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday Democrat Corinne Brown, who's held the 5th District for more than 20 years, last night issued a blistering statement _opposing_ the judge's ruling. As the Tampa Bay Times' Alex Leary describes in great detail, Brown partnered with Republicans to create that district in the 1990s. She's siding with them again in Florida's redistricting case, and it's easy to see the mutual benefit there: Brown gets a safe majority-minority district, while Republicans benefit from diluted minority representation in all the districts surrounding Brown's.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday In effect, she's choosing political self-interest over the interest of her party. Forty-seven percent of votes in Florida's House elections in 2012 went to Democratic candidates, but Democrats won only 39 percent of the state's House seats. This is partly because Democratic-leaning minority voters were concentrated heavily in District 5, and by extension underrepresented everywhere else.    *[WSU]: Wayne State University   *[Tue]: Tuesday   *[Wed]: Wednesday And this is why the problem of gerrymandering is so difficult to solve at the national level. Individual representatives often stand to gain from the process even when their party loses overall. So political will to tackle the issue is practically nonexistent. The Florida ruling adds up to a scathing indictment of the redistricting process in that state, and by extension the similar processes that happen in most other states. As long as redistricting remains in the hands of the partisans, real reform is unlikely.