By Leland B. Ware*
Partisan
Gerrymandering: Gill v. Whitford.
In 2010, a Republican
majority took control of the Wisconsin State Legislature. To maintain their power,
the Republicans devised a reapportionment scheme to maintain a majority in any
voting scenario. A coalition of Democratic voters challenged the plan as an
unconstitutional partisan gerrymander, The Democrats claimed that the
Republican majority purposely distributed the predicted Republican vote share that
into a greater number of seats, while purposely distributing the Democratic
votes in a manner that produced fewer seats.
The challengers in this
case requested the court to apply an “efficiency gap” to measure the
discriminatory effect of political gerrymanders. The efficiency gap counts the
number of votes each party “wastes” in an election to determine whether either
party enjoyed a systematic advantage. Any vote cast for a losing candidate is
considered wasted, as are all the votes cast for a winning candidate more than
the number needed to win.
The
calculation requires totaling, for each party, the number of votes cast for the
losing candidates in district races along with the number of votes cast for the
winning candidates more than the 50% plus one votes necessary to secure the
candidate's victory. The resulting figure is the total number of
"wasted" votes for each party. A fair redistricting scheme will create a relatively small
number of wasted votes producing an efficiency gap approaching zero. The more
partisan the gerrymander, the higher the efficiency gap. Researchers have found
that an efficiency
gap of 7 percent will entrench the majority until new districts are drawn. The Wisconsin gerrymander
created an efficiency gap of up to 13 percent.
At the trial the challengers
supported their argument with incontestable data demonstrating the difference
between voters’ current partisan allegiances and the corresponding election
results. Specifically, Republicans
received only 48.6% of the statewide vote in 2012, but won 61% of the assembly
seats. In 2014, they won 53% of the state vote and 64% of the assembly seats.
On November 21, 2016, a
three-judge panel of a federal district court held that Wisconsin’s partisan
gerrymander violated the First and Fourteenth
Amendments of the U.S. Constitution. The court held “that the First
Amendment and the Equal Protection clause prohibit a redistricting scheme which
is intended to place a severe impediment on the effectiveness of the votes of
individual citizens on the basis of their political affiliation, has that
effect, and cannot be justified on other, legitimate legislative grounds.”
Benisek
v. Lamone is the second partisan gerrymandering case to be
considered by the United States Supreme Court during the 2017-2018 term. For two decades, the predominantly Republican
district was represented in Congress by Republican Roscoe Bartlett, but in
2011, redistricting altered the political composition of the 6th district; the
following year, Democrat John Delaney beat Bartlett by over 20 percentage
points.
The plaintiffs live in
the 6th district and contend that Democrats in Maryland engaged in partisan
gerrymandering; drawing a redistricting map to favor one political party at the
expense of another; to retaliate against them for their past support of
Republican candidates like Bartlett. Republican voters of Maryland’s 6th
District claim that the reapportionment scheme violates their representational
rights under Article 1, Section 2 of the Constitution and their Freedom of
Association rights under the First Amendment. Decisions are expected in both districting cases by the end
of June.
The
Travel Ban
In January 2017 Donald
Trump issued an Executive Order that imposed a 90-day ban on the entry of
citizens from seven Muslim-majority countries, Iran, Iraq, Libya, Syria,
Somalia, Sudan and Yemen, and put a 120-day hold on the admission of refugees,
with an exception for refugees who were religious minorities in their home
countries. After federal courts barred the government from implementing the order,
in March 2017, a revised order imposed a 90-day ban on the entry of citizens
from six of the seven Muslim-majority countries included in the January order.
Iraq was removed from the list.
Lower courts barred the
federal government from enforcing that order and the Supreme Court agreed in
June of 2017 hear the case. But the justices took the case off their calendar
after the March order expired and the president issued the order at the center
of this case, which currently limits travel from seven countries: Libya, Iran,
Somalia, Syria, Yemen, North Korea and Venezuela. Chad was originally included
in the September 2017 order, but has since been removed.
There are two main issues
in this case. The first is whether the September 2017 order exceeds the
president’s power over immigration. The government argues that under the
Constitution and federal immigration laws, the president has broad authority to
suspend or restrict the entry of travelers from other countries into the United
States when he believes it is in the country’s best interest to do so. The government
argued that was done here after several agencies conducted a worldwide review
to determine whether other countries were providing the U.S.
government with enough information to determine whether their citizens should
be allowed to enter the United States. Because the eight countries included in
the September 2017 order either do not share adequate information with the
United States or present other risk factors, the president concluded that
allowing citizens from those countries to enter the United States would be
detrimental to the interests of the United States.
The second issue before
the court is whether the September 2017 order violates the Constitution’s
establishment clause, which bars the government from favoring one religion over
another. The challengers point to statements by Trump when he was s candidate and
comments he made after he took office, calling for a ban on the entry of
Muslims into the United States. Those comments were followed up by the first
two orders, which targeted countries with overwhelmingly Muslim populations. The
president acknowledged that the first order’s exception for religious
minorities was intended to help Christians.
The challengers contend
that the September 2017 order was a direct descendant of the January 2017 and
March 2017 orders. The only real difference is that the most recent version
also imposes token restrictions on two countries, Venezuela and North Korea, whose
populations do not include large numbers of Muslims. When all of this evidence
is taken together the only possible conclusion that can be drawn is that the
September 2017 order was issued for the unconstitutional purpose of excluding
Muslims from the United States.
The government argues
that the September 2017 order does not violate the establishment clause. The
applicable Supreme Court precedent requires is that the government have a
“facially legitimate and bona fide reason” for the order. The president based
the order directly on his national-security and foreign-policy judgments, which
are based on findings by government agencies that the countries listed in the
order either do not provide sufficient information to the U.S. government or
present other risks. A decision is expected this month.
Mandatory
Union Fees for Public-Sector Employees
Janus v. American Federation of State, Municipal, and
County Employees, is a
challenge by an Illinois child-support specialist to the fees that he is
required to pay to the union that represents him, even though he does not
belong to any union. The dispute stems from the $45 that is deducted from
Janus’ paycheck each month to go to the local branch of the union that represents
him. More than 40 years ago,
in Abood v.
Detroit Board of Education, the Supreme Court ruled that it would violate the First
Amendment to charge nonmembers for political activity such as lobbying, but
nonmembers can be required to pay fees, called “fair share” or “agency” fees,
that cover the union’s costs to negotiate a contract that applies to all public
employees.
In this case Janus asked the Court to overrule its Abood. He contends that these more limited fees
violate the First Amendment, because the issues commonly at the heart of
contract negotiations for government employees such as salaries, pensions and
benefits for government employees are inherently political. This he contends,
forces him to pay an agency fee is no different from requiring him to pay to
support a group that lobbies the government.
If Janus wins
it could overrule parts of public sector bargaining statutes in 22 states. There
are about five million public sector workers in states that have mandatory
bargaining units, from which unions can collect agency fees. It has been
estimated that public employee unions collect around $3 billion in dues and
fees annually. This issue was scheduled to be decided in Friedrichs v.
California Teachers Association in 2016, but Justice Antonin Scalia’s
death resulted in a 4-4 deadlock. A decision in Janus is
expected by the end of June.
Does
Religious Freedom Allow Discrimination? Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Commission
The Supreme Court ruled in
June on a potentially landmark case that pitted religious freedom against
anti-discrimination laws. The controversy began when Jack Phillips, owner of
Masterpiece Cakeshop in Colorado, refused to create a wedding cake for a
same-sex couple in 2012, citing his religious beliefs. He maintained that he
serves anyone who comes into his shop but does not cater to every event. A
state civil rights commission sanctioned Phillips after the gay couple filed a
formal complaint. An appeals court in Colorado rejected Phillips’ argument that
forcing him to make a cake for a same-sex couple would violate his right to
free speech and to practice his religion freely. A decision is expected by the
end of June.
The
Supreme Court ruled in favor of the Bakeshop owner. It is a general rule that religious
objections do not allow business owners and other actors in the economy and in
society to deny protected persons equal access to goods and services under a
neutral and generally applicable public accommodations law. However, the
Colorado Civil Rights Commission’s treatment of Phillips’ case violated the
State’s duty under the First Amendment not to base laws or regulations on
hostility to a religion or religious viewpoint. Some of the commissioners at
the public hearings endorsed the view that religious beliefs cannot
legitimately be carried into the public sphere or commercial domain, disparaged
Phillips’ faith as despicable and characterized it as merely rhetorical, and
compared his invocation of his sincerely held religious beliefs to
defenses of slavery and the Holocaust. The Commission’s hostility was
inconsistent with the First Amendment’s guarantee that our laws be applied in a
manner that is neutral toward religion.
*Leland Ware, Louis L. Redding
Chair and Professor of Law, University of Delaware
