US Supreme Court to hear DeLaymander case/Frist and Byrd spat on ‘nuclear option’–on anniversary of Bush v. Gore

The United States Supreme Court has agreed to hear a challenge to the mid-decade redistricting in Texas in 2003, which was engineered by US House majority leader, Tom DeLay (R-Tex).

Meanwhile, in the last two days Senate Majority Leader Bill Frist (R-Tenn.) and senior Democrat Robert Byrd of W.Va. have engaged in a verbal skirmish surrounding the possibility that a filibuster by the party with the minority of seats in the body could prompt the party with manufactured majority of seats to “go nuclear” and unilaterally abolish the right of filibuster. Even though there has been no filibuster threat thus far, Frist on Sunday said “the answer is yes” when asked if the Republicans would change the rules to stop a filibuster of Samuel Alito’s confirmation. Byrd today responded on the floor of the Senate: “If he ever tries to exercise that, he’s going to see a real filibuster if I’m living and able to stand on my feet or sit in my seat. If the senator wants a fight, let him try it.”

Interesting that both of these matters would come precisely at the fifth anniversary of Bush v. Gore. These cases all tie together and provide a trifecta of one party using dubious manipulation of law and rules to solidify its grip on the levers of federal power.

In Bush v. Gore, the Supreme Court handed the presidency to America’s (and probably Florida’s) Second Choice. As my remarks on the Senate filibuster allude to, Republicans are also America’s Second Choice in Senate elections since 2000 (thus the filibuster currently prevents a minority party from acting like a majority party). And in the House, while the Republicans had the plurality (not majority) of votes in 2004, they lost votes compared to 2002, yet gained seats. The net gain is accounted for by the DeLay’s blatant and extraordinary mid-decade partisan gerrymander. (About halfway through an LA Times article there is a good quick summary of that redistricting.)

How will the Court rule on the Delaymander case? The case is similar to one in Pennsylvania in which a 5-4 ruling rejected the notion that an excessively partisan redistricting plan violated equal protection. (The first-linked story, from Bloomberg, has an overview.) Justice Kennedy sided with the majority in that case. Rick Hasen, quoted in both the Bloomberg and Times stories, suggests “One possibility is that Justice Kennedy has come to a firmer conclusion as to how to deal with these cases.”

New Chief Justice John Roberts will hear the Delaymander case. We can probably predict where he comes down on the matter, given that Roberts helped prepare the Republicans’ case in Bush v. Gore.

As for Samuel Alito–who will be on the Court by then if either there is no filibuster or the Republicans nuke it–we know he does not object to legislative malapportionment. Is it a stretch to think he considers partisan gerrymandering to be just fine, too?

I think we know how this is going to turn out.

[UPDATE: Scott Lemieux, at LGM has his usual perceptive analysis, asking whether: (1) The Delaymander is so ourtageous that it will be the case that prompts Kennedy to develop, with the 4 dissenters in the Pennsylvania case, a standard for unconstitutional partisan gerrymanders; or (2) Kennedy is ready to go with Scalia and argue that all partisan gerrymander cases are non-justiciable. Althouse believes the latter: “Perhaps it will use this occasion, however, to set a clear standard for bowing out of these controversies altogether.”]

[Scott also notes that Alito’s vote, which we can assume, as I did above, to be that the gerrymander is constitutionally permissible, will not affect the balance in the case, given that he replaces O’Connor, who voted with the majority in the Pennsylvania case.]

[Don’t miss Rick Hasen’s post on this topic.]

One thought on “US Supreme Court to hear DeLaymander case/Frist and Byrd spat on ‘nuclear option’–on anniversary of Bush v. Gore

  1. Yesterday the US Supreme Court heard arguments in Gill v. Whitford, the Wisconsin gerrymander case. SCOTUSblog has links to the transcript (“Tr”) and to submitted briefs.

    As a non-American non-lawyer, I find the ways of reasoning in Supreme Court gerrymandering cases to be, well, alien. In Vieth v Jubelirer (2004) the plurality opinion included the following paragraph:

    “Assuming, however, that the effects of partisan gerrymandering can be determined, appellants’ test would invalidate the districting only when it prevents a majority of the electorate from electing a majority of representatives. Before considering whether this particular standard is judicially manageable we question whether it is judicially discernible in the sense of being relevant to some constitutional violation. Deny it as appellants may (and do), this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle. It guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.”

    Like Superman (“able to leap tall buildings in a single bound”), the Justices used “rests upon” to leap to the conclusion that appellants really were asking for proportional representation (PR). The connection is not obvious. The appellants’ claim of injury and the requested remedy both involve boundaries between single member districts with plurality winners (SMD/FPTP). Why connect them to PR, an electoral principle that is incompatible with SMD/FPTP and that applies to minority parties as well as to a majority party?

    Yesterday the Chief Justice refused to accept counsel’s statement that the simple Efficiency Gap calculation (seat share S and vote share V related by S = 2V – 0.5 for EG=0) was not proportional representation. (In his amicus brief, Eric McGhee gave a history of the Court’s understanding of “proportional representation”.)

    Perhaps the Vieth plurality’s argument is better understood in terms of “informal” logic:
    https://en.wikipedia.org/wiki/Straw_man

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