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Fri Jan 12, 2018, 06:51 AM

Notorious for a Reason


Notorious for a Reason
Ruth Bader Ginsburg’s sneaky attack on partisan gerrymandering is beginning to pay dividends.
By Mark Joseph Stern
Jan 10, 2018, 5:19 PM


In 2015, however, Ginsburg seized upon a tangential case, Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC), to strike a surreptitious jurisprudential blow against political gerrymanders. AIRC did not involve a direct challenge to partisan redistricting. Rather, it was a challenge to an Arizona law, passed via ballot initiative, that stripped the legislature of its redistricting duties and delegated them to a non-partisan commission. In a 5–4 decision authored by Ginsburg, the court concluded that independent redistricting was a constitutionally permissible exercise of the people’s “legislative power.”

But Ginsburg did not stop there. In several remarkable passages, Ginsburg cast aspersions on partisan gerrymandering itself. The justice began her opinion by stating flatly that “partisan gerrymanders are incompatible with democratic principles.” She described political redistricting as a “problem” that “subordinate[s] adherents of one political party and entrench[es] a rival party in power.” And she pointed out that this practice contravenes “the core principle of republican government”—that “the voters should choose their representatives, not the other way around.”

Justice Anthony Kennedy expressed somewhat similar sentiments in a 2004 concurring opinion. But AIRC marked the first time that a majority opinion with precedential value would explicitly denigrate partisan gerrymandering as an undemocratic abomination. Writing in dissent, Chief Justice John Roberts dismissed the court’s barbs as “naked appeals to public policy.” But Ginsburg was not simply leaning on her own policy preferences. She was planting the seeds of a coherent jurisprudence that lower courts could use to strike down political gerrymanders.

Those seeds have now sprouted. In 2016, a federal district court invalidated Wisconsin’s state legislative map as an unconstitutional partisan gerrymander. The court used Ginsburg’s definition of political redistricting as its framework, focusing, as she did, on the “problem” of legislative entrenchment by the majority party. “It is safe to say,” the court wrote, “that this concept of abuse of power seems at the core of the court’s approach to partisan gerrymandering,” citing AIRC. The court then found that Wisconsin Republicans had, indeed, entrenched their own legislative dominance through unconstitutional redistricting. That case is now under review by the Supreme Court.

On Tuesday, the federal court that struck down North Carolina’s congressional map adopted a similar approach to the Wisconsin court. In a decision that cites AIRC 18 times, the court adopted Ginsburg’s entrenchment principle as its analytical lodestar. Quoting Ginsburg directly, the court held that a state acts unlawfully when it redistricts with the intent to “subordinate adherents of one political party and entrench a rival party in power.” And here, the plaintiffs put forth “a wealth of evidence” to demonstrate Republicans’ intent “to ‘subordinate’ the interests of non-Republican voters” and “entrench” their own domination. Thus, the court explained, the congressional map qualified as an impermissible partisan gerrymander.

With this reasoning, the district court essentially turned Ginsburg’s AIRC analysis into a standard for gauging the legality of gerrymanders. The justice seized upon the case to throw the court’s weight behind a clear and concise conception of political redistricting that lower courts have already used to strike down egregiously partisan maps. If the Supreme Court soon clarifies that extreme partisan gerrymandering is unconstitutional, as it appears poised to do, Ginsburg will have laid the groundwork in AIRC. Her masterful opinion has already given lower courts the tools they need to restore democracy in states where it is under siege.

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Reply Notorious for a Reason (Original post)
babylonsister Jan 2018 OP
thbobby Jan 2018 #1
babylonsister Jan 2018 #2

Response to babylonsister (Original post)

Fri Jan 12, 2018, 07:17 AM

1. I am so afraid

to believe truly great news. Gerrymandering is ruining our democracy. Winning big in 2018 would be great. Getting rid of gerrymandering would be transformative. We would be on the road to being a democracy again. Ginsburg: Making America A Democracy Again! We can only hope and pray.

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Response to babylonsister (Original post)

Fri Jan 12, 2018, 08:09 PM

2. I take great news wherever I can find it because it's been rare.

And I LOVE Notorious RBG!!

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