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Supreme Court divided over partisan districting
December 16 2017, 03:03 | Van Peters
Yuri Gripas Reuters
Justices Samuel Alito and Anthony Kennedy, as well as Chief Justice Roberts, seemed inclined to agree with Wall and Clement.
Kennedy was the first justice to ask a question in Tuesday's opening arguments in the case, Gill v. Whitford.
But in a series of cases, the court has been hesitant to restrict strictly political, non-racial gerrymandering.
Rather than showing the people an equation and telling them that that is the reason why a map was struck down, Breyer offered a much simpler explanation.
People on both sides of the case widely anticipate that the four liberal justices will side with the voters who sued.
"What incentive is there for a voter to exercise his vote?" she asked. This redistricting typically is carried out by the party that controls the state legislature. Sotomayor asked how political gerrymander "helps our system of government".
Beverly Gill, the state election board's chair, maintained that "Act 43's districts are consistent with the prior court-drawn maps". In fact, they argued, the 12 plaintiffs lacked standing to challenge all of the state's maps and could only challenge the districts they lived in. Because of his past willingness to consider such a standard, Kennedy is seen as a potential swing vote in the Wisconsin case. He also disagreed with the court's decision that left in place California's restrictions on permits for concealed weapons. "Is this the time for us to jump into this?"
The plaintiffs have successfully petitioned lower courts to recognize the unconstitutional nature of the Republican-drawn maps and the United States Supreme Court is hearing the case on appeal with the opportunity to establish national precedent on the matter. They reluctantly answered that it would, but denied this challenge fit that framework. That happened in a brief in a case at the heart of the social debate about religious liberty and gay rights, where the justices will decide whether a Colorado businessman can decline to bake a cake for a same-sex wedding because of his First Amendment rights. Alito cited a 2004 decision, Vieth v. Jubelirer, in which Justice Antonin Scalia-joined by a plurality of the Court's conservatives-declared flatly that "the judicial department has no business entertaining the claim" of unlawful partisan gerrymandering, "because the question is entrusted to one of the political branches". But Kennedy was unwilling to bar all such future claims because he thought a workable standard to measure when there is an overreliance on politics might arise down the road.
"These employees say 'We don't object to the arbitration, but what we do object to is the one-on-one, the employee against the employer'".
Some experts are also concerned that as the data collection and mathematical modeling technologies used to draw the districts improve, these kinds of gerrymanders could become easier to implement.
"A state like Pennsylvania, it fails under multiple tests", said Michael Li, a redistricting and voting rights expert at New York University School of Law's the Brennan Center for Justice.
That's because studies show, lawyer Daniel Ortiz told the court, that 55 percent of employment contracts covering non-union workers force individual workers to take disputes to arbitration and 23 percent of those pacts ban class actions, too. The court relied upon a three-part legal standard based on discriminatory intent, discriminatory effect and the justification for the law.
Every 10 years after a new Census is released, state legislatures redraw their voting district maps. "That fight starts now", former U.S. Attorney General Eric Holder, now the head of the National Democratic Redistricting Committee, told CNN.
Waiting in the wings are gerrymandering complaints from North Carolina and Maryland. The modern tactics are so advanced that elections are often decided behind closed doors by sitting elected officials.
Though it is up in the air how deeply the Court will cut into the practice of partisan gerrymandering, a smart gambler would bet on Wisconsin's maps going down.
"Special interest groups, fueled by hidden funders with deep pockets and skin in the political game, are now focused on influencing redistricting", Moser wrote.
For the last five decades, the Minnesota governor has historically vetoed the maps sent by the Legislature (in the 1990s the legislative maps passed because Gov. Arne Carlson mistakenly allowed them to go into law without his signature).