Sunday, June 10, 2018

The End of Busy Supreme Court Term

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

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