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Brennan Center for Justice – Scalia’s Redistricting Legacy

February 23, 2016

Brennan Center for Justice

Scalia’s Redistricting Legacy

When Justice Antonin Scalia delivered the unanimous opinion of the Court in Shapiro v. McManus in December, no one suspected it would be his final decision. The dry ruling on a technical issue contained none of the color, passion, or humor that often characterized his writing. Nonetheless, the Shapirodecision could turn out to be one of the most significant of the term because it set the stage for partisan gerrymandering to return to the Supreme Court for the first time in a decade.

The Court deadlocked when it last took up the question in Veith v. Jubelirer in 2004, with Justice Scalia writing a vigorous plurality decision holding that the issue was beyond the scope of the judiciary. Very little has changed in the legal landscape surrounding partisan gerrymandering in the years since Vieth.

But now, if this case or a similar partisan gerrymandering challenge out of Wisconsin reaches the Supreme Court (as seems likely), they will face a very different Court. Only Justice Thomas remains of the Vieth plurality and four of the newer justices have yet to weigh in on the issue. So what recently might have looked like a narrow opportunity to sway Justice Kennedy and eke out a 5-4 decision suddenly looks very different and potentially much more hopeful.

Read more from Michael Li about Justice Scalia and partisan gerrymandering here.

Obama in Illinois

President Obama recently returned to where he began his political career to call on the Illinois legislature to work together for a better democracy. A key priority of his proposal was the need for redistricting reform. Reiterating remarks made in his State of the Union Address this past January, the President said, “We should change the way our districts are drawn. In America, politicians should not pick their voters; voters should pick their politicians.”

The speech comes as Illinois is already wrestling with redistricting reform. A non-partisan coalition, Independent Maps, is currently leading a petition drive to place an amendment on the November ballot to create an independent redistricting commission. The effort has a broad base of support including community and neighborhood groups, good government organizations, elected officials, and the business community. However, some lawmakers in the state legislature are skeptical of the reform and their concerns have been echoed by People’s Map, a political group that opposes the redistricting amendment.

The full text of the president’s speech is available here.

Other News and Analysis

  • A federal three-judge panel in North Carolina recently struck down the 1st and 12th congressional districts as unconstitutional racial gerrymanders and ordered the state toredraw the maps. The state asked for an emergency stay but the U.S. Supreme Courtdenied the request. With the stay denied, this year’s North Carolina primary elections have been roiled.  Congressional primary elections have pushed back until June 7—and will take place under a controversial replacement district map drawn by legislative Republicans—while the March 15 primary for other offices will go forward as scheduled. The replacement map has yet to be approved by the three-judge panel, however, and additional lawsuits are expected. Further confusion stems from theMarch 15 primary ballots, which will still include congressional candidates running under the old, unconstitutional district plan. Because it is too late to reprint the ballots and because the state is still appealing to restore the old map, election officials areurging voters to cast their vote for congressional candidates in both the March 15 and June 7 primary.
  • Lawyers for the Maryland residents challenging the state’s congressional district map filed an amended complaint last week, setting the stage for the three-judge panel to weigh whether Democrats unconstitutionally gerrymandered districts in their favor. The case is on remand following the U.S. Supreme Court’s unanimous ruling that it must be heard by a three-judge panel. A trial is expected this fall.
  • Maryland State Sen. Jamie Raskin (D) recently introduced legislation to create a jointredistricting commission to draw districts in Maryland and Virginia. The proposal attempts to disincentivize partisan gerrymandering by requiring the Republican legislature in Virginia to compromise with the Democratic legislature in Maryland. Sen. Raskin does not yet have a partner in the Virginia legislature.
  • A bipartisan bill in Nebraska would create a nine-member citizens redistricting commission to draw congressional and state legislative districts. The commissioners, who would be appointed by state legislators, could not be elected officials, party officials, or lobbyists. The commission would submit its maps to the legislature for final approval.
  • Lawmakers in New Mexico are considering a constitutional amendment to create an independent redistricting commission. The proposal has received significant support in committee, but members agree the amendment needs more work before going to the ballot.
  • A measure moving through the Arizona legislature would require commissioners on the state’s independent redistricting commission to be elected rather than appointed by the legislature. Proponents claim the measure would eliminate politics from the decision process. Opponents, however, argue that an elected commission would likely be composed entirely of Republicans.
  • Political scientist Lee Drutman argues in a new piece that redistricting reform will not solve the polarization and dysfunction plaguing our political processes because the problems stem not from gerrymandering but from single-member districts. Multi-member districts, he claims, would greatly reduce polarization and enhance diversity within the political parties.