undergroundnewsroom.com February 24, 2018

Why the Supreme Court is debating 'gerrymandering'

07 October 2017, 12:50 | Damon Campbell

For the first time, the Supreme Court seems receptive to putting limits on partisan gerrymanders

Maps of Kentucky Senate and House districts await attendees at the League of Women Voters of Kentucky's forum on redistricting and gerrymandering on Oct. 3 2017

Initiating suo moto proceedings based on the recent verdict of the Supreme Court in connection with custodial deaths, the first bench comprising Chief Justice Indira Banerjee and Justice M. Sunder said "in terms of the judgment dated September 15, 2017, of the Supreme Court we initiate suo moto public interest petition to identify next of kin of the prisoners who have admittedly died an unnatural death as revealed by the National Crime Records Bureau (NCRB) during the period between 2012 and 2015 and thereafter for awarding suitable compensation except whom adequate compensation was already been awarded". And ever since the mid-1900s, the Supreme Court has ducked the issue of throwing out such insane puzzles, unless the gerrymander was racially motivated.

There is now no law against gerrymandering, but the outcome of the Wisconsin gerrymandering case could change that. In both instances, that would be a bit outside the box.

Justice Neil Gorsuch, the newest member of the court, likened the court's task in finding a way to measure partisanship with his preparations for grilling steak. It would allow him to demonstrate a kind of doctrinal consistency while reaching one outcome that will thrill liberals and another that will please conservatives.

"Would we have that result when the individual citizen says: 'I have no choice, I'm in this district, and we know how this district is going to come out.' I think that's something this society should be concerned about".

The chief justice expressed worry that the court's legitimacy and authority would be hurt if the court struck down what most observers agree is extreme partisan gerrymandering by Republicans in Wisconsin. But there was a problem: Gerrymandering is making a mockery of the right to vote in Wisconsin, the focus of the case before the court, where a redrawn map allowed Republicans to hold more than 60 percent of the state Assembly while getting less than half the vote.

"The way you gerrymander is you basically take the other guy's voters and either pack them to a few districts or you spread them out - that's called packing and cracking", plaintiffs' attorney Paul Smith said.

Achieving this normally means dividing districts up along highly irregular lines to ensure that voters from each party are concentrated in the right areas and spread thin in others, as the Washington Post illustrates using a popular explanation adapted from Reddit.

Yet Kennedy didn't back down.

So if Kennedy is in fact poised to strike down the partisan gerrymander in the Gill case, expect First Amendment free speech to play a role. The baker in the case, according to the government's brief, "views the creation of custom wedding cakes as a form of art, to which he devotes his creativity and artistic talents".

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The case promises to show the pivotal role Justice Anthony Kennedy will play on the court this term.

Attorneys for the plaintiffs countered Wednesday that there are enough factual and legal differences between the two cases that the state case should be permitted to proceed.

Although seemingly voluntary in that the employee or consumer can choose whether or not to sign the arbitration agreement, signing the agreement is required if the individual wants to get the job or to obtain the cellphone, credit card or other consumer product. That could take the form of an implicit endorsement of gay marriage.

While most Americans familiar with the episode probably see it as another step in Ginsburg's cultural apotheosis to be enjoyed briefly on Buzzfeed, her argument is one that has hounded the court for decades.

"What is at issue in this case is the right to vote and the right to have your vote counted", says McKenzie.

As for the wedding cake, baking it could be an art. In his thirty years on the bench, Kennedy has displayed an nearly Pavlovian receptivity to claims of infringement on the freedom of speech. North Carolina's map gives Republicans ten seats and Democrats three, despite close statewide votes.

But it would be a defeat for the gay-rights movement, which is committed to fighting against the invocation of the liberty to discriminate. But it's the kind of connection that Kennedy watchers have always used to guess where he's going.

A decision is expected by the spring.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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