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Supreme Court Grapples, Once Again, With Redistricting
Townhall.com ^ | December 29, 2015 | Michael Barone

Posted on 12/29/2015 5:21:45 AM PST by Kaslin

Fifty-one years ago the Supreme Court handed down its one-person-one-vote decision, requiring that within each state congressional and legislative districts must have equal populations.

That gave redistricters a relatively easy standard to meet. Census data provides block-by-block population counts every 10 years, and it's possible now to draw lines for districts so that their populations are identical or vary by just one person.

But redistricting cases keep making their way to the Court nonetheless.

One reason is that the Voting Rights Act amendments of the 1980s have been interpreted as requiring the creation of a maximum number of districts with majorities or near-majorities of black or Hispanic residents. This has produced many grotesquely shaped constituencies and much litigation.

This month the Court heard two other redistricting cases. One, Evenwell v. Abbott, was brought in Texas. The plaintiffs argue that districts should be equal not in total population but in number of eligible voters. They live in areas where almost all adult residents are citizens, but in other areas -- the Lower Rio Grande Valley particularly -- a majority of residents aren't, because they are non-citizens or children.

As a result some districts have two to three times as many eligible voters as others. That's not equal representation, plaintiffs argue.

This was not a situation foreseen in 1964. Due to restrictive immigration laws, depression and war, the nation's population had the lowest percentage of non-citizens since the 1830s. And in that baby boom era, just about every part of the country had similar percentages of adults and children. Equal population districts thus tended to generate districts with equal numbers of eligible voters.

Plus, the courts have made exceptions to the equal-population rule, so that prison populations and military bases are not counted for state legislative representation. You don't want to create a district where no one is eligible to vote.

Today some heavily immigrant districts come close to that. California's congressional districts had equal total populations in the 2010 Census. But in November 2012, 337,634 people voted in the low-immigrant-population 4th district in the northwest Sierra and only 119,234 in the heavily Hispanic 21st district in the Central Valley.

So there's an intellectually respectable argument that districts should be based on eligible voter population rather than total population. Or, as Justice Anthony Kennedy suggested, could be. Texas' position is that its Republican legislature chose to use total population (even though using eligible voters would help Republicans) and that that is at least permissible as well, if not mandatory.

There's one other problem for the Evenwell plaintiffs. The Census taken every 10 years provides fine grain detail on total population. The Census' American Community Survey and other sources provide estimates and less detail. That leaves more room for districters to draw lines for partisan advantage -- gerrymandering.

So it seems unlikely that the Court will require use of eligible voters. But if a majority of justices indicate they'll permit it, that could have repercussions -- mostly in favor of Republicans -- in redistricting following the 2020 Census or if, as permitted, they redraw their lines before that.

The other redistricting case heard last month, Harris v. Arizona Independent Redistricting Commission, raises the issue of whether a plan in which district populations vary by 10 percent can be invalidated because it favors one party. Here the Court has an opportunity to set a standard that will cut back on its redistricting caseload.

Arizona's reputedly nonpartisan commission, like California's, was successfully stacked by Democrats and drew lines that tended to pack large numbers of Republicans into a few districts with above-average populations. The commission says it acted to align districts with county lines, as if legislators are supposed to represent governmental units rather than people.

In 2012, Republicans carried Arizona's vote for U.S. House of Representatives by a 52 to 44 percent margin. But under the commission's plan Republicans won only four districts and Democrats five. Winning Republicans won 61 to 67 percent of the vote. Three winning Democrats won margins averaging of 2.9 percent.

The Court has refused to overturn even blatantly partisan plans, notably one by Pennsylvania Republicans. But allowing districts to be 10 percent larger or smaller than average provides redistricters with far greater opportunity for gerrymandering than a requirement that districts come very close to equal populations.

Courts can't stop partisan gerrymandering entirely. But they can limit its effectiveness by enforcing strict numerical equality, by simple arithmetic. Supreme Court justices weary of redistricting cases might keep that in mind.


TOPICS: Culture/Society; Editorial; Government
KEYWORDS: supremecourt

1 posted on 12/29/2015 5:21:45 AM PST by Kaslin
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To: Kaslin

The outcome is predictable. SCOTUS will rule in a way that favors Democrats as they have ever since Obama was elected.


2 posted on 12/29/2015 5:31:15 AM PST by randita
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To: Kaslin

They need to bump up the size of the House by a factor of 10 at a dead minimum ... and that’s still not enough! Let’s see if anyone would want to make a career out of sitting in that brand of madhouse :-).

People wonder why it is so corrupt ... the House has basically been the size of a high school graduating class for the past century. It doesn’t cost that much to buy ~ 220 people. The 435 limit helps keep the two party stranglehold in place!

There should be one Representative per 30,000 - 50,000 people as the founders intended. Sitting at 435 people is frigging ridiculous. All of our voices are terribly diluted.

If you have a House sized according to population with each Rep representing a relatively small number of people, citizens have a more powerful voice and would probably have more accurate representation even if the party that wins an election differs from the losing voter (for example, in some strong conservative districts, a district will have “gone liberal” if a “conservative with a couple libertarian ideas” wins ... far better than some sickening Communist beating out an American :-)).

You could also run simple redistricting algorithms instead of politicians weaving this gerrymandering nonsense into the fabric of the Federal Government. With a larger count in the house, you’d get smaller, more ‘square’ districts given the higher member count in the house.

It’s almost as if each Rep is becoming a kind of district grumpenfuerher. We might actually see a Rep. have a district with a voting population the size of some states! I’ve convinced myself that the House is the #1 problem we’re facing in terms of a broken Federal government. I just don’t see the fools there fixing the problem w/o a ConCon intervention :-).


3 posted on 12/29/2015 5:45:09 AM PST by edh (I need a better tagline)
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To: randita

I doubt the court is “grappling” with the disenfranchisement of productive white people in the country their ancestors made great.

PA the outcome is indeed preordained.


4 posted on 12/29/2015 5:45:25 AM PST by T-Bone Texan (The economic collapse is imminent. Buy staple food and OTC meds now, before prices skyrocket.)
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To: Kaslin

The biggest surprise I got while researching my family history on Ancestry.com is learning that censuses are full of sh*t and always have been. The worst data gathering I’ve ever seen. A total joke.


5 posted on 12/29/2015 6:00:38 AM PST by FlingWingFlyer (The biggest liars in the liberal media have started referring to themselves as fact checkers. Sad.)
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To: Bigg Red

MARK


6 posted on 12/29/2015 6:37:25 AM PST by Bigg Red (Keep calm and Pray on.)
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To: edh

Obviously the Democrats are going to want to have districts based on population and not eligible voters. It’s why all these blue state Mayors are lining up to take Syrian refugees.

The only question is, how will Anthony Kennedy justify giving them what they want?


7 posted on 12/29/2015 7:42:06 AM PST by Buckeye McFrog
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To: Kaslin

The Supreme Court doesn’t have the legal authority to change voting districts in states. Period. It can only issue an opinion, not a legally binding dictate.


8 posted on 12/29/2015 3:25:36 PM PST by sergeantdave ( If not you, who? If not now, when?)
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To: AuH2ORepublican

PING

Thoughts?


9 posted on 12/29/2015 4:06:14 PM PST by Impy (They pull a knife, you pull a gun. That's the CHICAGO WAY, and that's how you beat the rats!)
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To: Impy

SCOTUS should rule that the Constitution’s requirement that the decennial Census be “an actual enumeration” of inhabitants limit its scope to legal residents (and thus exclude illegal aliens and people on tourist or other temporary visas); if it did that, the difference in eligible voters in each CD would be much smaller, and all districts would have more or less the same number of residents that either currectly are eligible voters or will or could become eligible voters in the next 18 years. But SCOTUS missed the opportunity to do so in the Utah vs. NC apportionment case (actually, the GOP Congress should have just legislated that sometime in 2003-2007), so I doubt that we’ll see that.

The most that we’ll see from SCOTUS is a relaxing of the standard that pretty much leads to not more than one-person deviation among CDs in order to allow states to consider the number of adult citizen residents. Maybe allowing 10% deviation in number of residents per CD and 10% deviation in number of adult citizens per CD?

As for the challenge of politically unrepresentative results, I doubt that will go anywhere, and it would be a terrible precedent were it to occur (unless SCOTUS somehow could limit its scope to “nonpartisan” commissions, which I don’t see how it could do so) because it would be used by liberal courts to strike down maps that draw extremely Democrat CDs in cities and GOP-leaning CDs in suburban and exurban areas. SCOTUS should have slayed the AZ commission last year because it was not created by the state legislature (which is the body entrusted by the U.S. Constitution to legislate on district lines) but Kennedy chickened out and signed on to Ginsburg’s opinion that “state legislature” means “either the state legislature or the voters in a referendum, be ause, you know, those Framers weren’t as progressive as we are.”


10 posted on 12/31/2015 6:58:55 AM PST by AuH2ORepublican (If a politician won't protect innocent babies, what makes you think that he'll defend your rights?)
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