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Petition of the day

Wed, 08/16/2017 - 22:22

The petition of the day is:

S. S. v. Colorado River Indian Tribes 17-95

Issues: (1) Whether the Indian Child Welfare Act, 25 U.S.C. §§ 1912(d) and 1912(f), applies in a private severance action initiated by one birth parent against the other birth parent of an Indian child; and (2) whether, if the sections apply in such an action, this de jure discrimination and separate-and-substandard treatment of Indian children violate the due process and equal protection guarantees of the Fifth and Fourteenth Amendments.

The post Petition of the day appeared first on SCOTUSblog.

Categories: Research

Symposium: In sports-betting case, the Supreme Court should bet on federalism

Wed, 08/16/2017 - 15:06

Jonathan Wood is an attorney at Pacific Legal Foundation, an adjunct fellow at the Property and Environment Research Center, and a blogger for He represents a coalition of libertarian-leaning groups as amici supporting New Jersey in Christie v. National Collegiate Athletic Association.

Can Congress dictate to states what their own laws must be? The Supreme Court agreed to decide that question in Christie v. National Collegiate Athletic Association, the latest iteration of New Jersey’s years-long effort to legalize sports betting and have the federal Professional and Amateur Sports Protection Act declared unconstitutional. The Supreme Court’s decision will have wide-ranging implications for federalism, particularly cooperative federalism, and political accountability.

The present conflict began in 2011 when New Jersey voters approved a referendum, by a whopping 2-1 margin, favoring the legalization of sports betting. Thanks in part to PASPA, which forbids states from “authoriz[ing]” this type of gambling, it is illegal to bet on sports in almost every state. Only those states that allowed sports betting in 1992, basically just Nevada, may retain it.

The federally compelled state bans are widely and flagrantly violated. Illegal sports betting is likely a $100 billion dollar enterprise. Across the country, people openly gamble on the Super Bowl, the NCAA basketball tournament and many other sports events. President Barack Obama bragged about violating these laws during an appearance on “The Late Show with Stephen Colbert.” Even the commissioner of the National Basketball Association has called for PASPA’s repeal.

In response to the popular referendum, New Jersey initially tried to replace its state prohibitions with a licensing and permitting regime, which was challenged by the NCAA and four professional sports leagues. The U.S. Court of Appeals for the 3rd Circuit held that this reform violated PASPA, rejecting New Jersey’s argument that PASPA violates the equal-sovereignty doctrine by discriminating among the states (Nevada can have sports gambling but New Jersey can’t). The court also rejected New Jersey’s argument that PASPA unconstitutionally commandeers state law, interpreting “authorize … by law” to forbid states from affirmatively licensing or permitting gambling but not from repealing their own prohibitions. The Supreme Court declined to review that decision.

So New Jersey accepted the 3rd Circuit’s invitation and partially repealed its prohibitions on sports gambling at casinos and racetracks, without replacing them with any affirmative authorization or permit. Sports leagues challenged that too. This time, the en banc 3rd Circuit, abandoning the limits it had recognized earlier in order to avoid the commandeering problem, interpreted PASPA to forbid states from repealing their own prohibitions as well as from affirmatively authorizing gambling.

Nevertheless, the court of appeals once again rejected New Jersey’s commandeering arguments, construing commandeering to apply only when federal law compels states to adopt and enforce a new policy. “PASPA does not command states to take any affirmative actions,” the court held, but merely forbids states from amending policies they had previously, voluntarily adopted. The court suggested that PASPA may allow some repeals but refused to explain what those might be, leading the dissent to question whether, under the majority’s rationale, any “repeal of any kind will evade [PASPA’s] command.”

The Supreme Court granted certiorari to decide whether the 3rd Circuit’s narrow view of the commandeering doctrine is correct. Its past commandeering cases suggest that it will reject that view.

The Supreme Court has twice found federal laws to commandeer states unconstitutionally. In New York v. United States, the court considered a federal law that required states to either regulate radioactive-waste disposal according to standards set by Congress or accept ownership of the waste. States had no option to do nothing and cede the issue to the federal government, but were forced to adopt as state policy one of two options imposed by the feds. Although the Supreme Court had previously referred to commandeering as a constitutional limit on Congress’ power, this was the first time it had found that a federal law actually “commandeered the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Under New York, if Congress wants a policy enforced, it can encourage states to voluntarily participate (so-called cooperative federalism) or it can enforce the policy itself directly on individuals, but it cannot simply dictate policy to states.

Printz v. United States extended the protections of the commandeering doctrine to state officials. The Brady Act required local law-enforcement officers to perform background checks for prospective gun sales. The United States argued that New York should be limited to situations in which Congress requires states to affirmatively enact policies set by Congress, arguing that “the constitutional line is crossed only when Congress compels the States to make law in their sovereign capacities.” But the Supreme Court rejected any limitation of the commandeering doctrine based on the “distinction between ‘making’ law and merely ‘enforcing’ it, between ‘policymaking’ and mere ‘implementation.’” Once again, the court emphatically concluded that the federal government “‘may not compel the States to enact or administer’” federal policy.

Commandeering is perhaps easiest to recognize in contrast to pre-emption cases. In the latter, Congress may give states an option of adopting some sort of state regulatory program or cede the issue to the feds. It has done so many times in the environmental arena: If states do not regulate up to federal standards, the federal government directly imposes those standards on individuals.

PASPA is a unique statute in two significant respects: It regulates states as states (and discriminates among them), and it gives states no option to cede the issue of sports betting to federal enforcement. PASPA does not contain a federal prohibition on sports betting (probably because that would have been a political nonstarter with Nevada). Instead, it forbids states from legalizing sports betting and individuals from placing bets pursuant to any state legalization effort.

The Supreme Court has previously identified two principal justifications for the commandeering ban: (1) Commandeering would frustrate the Constitution’s system of federalism; and (2) commandeering would frustrate political accountability. Both also cut against PASPA and the 3rd Circuit’s rule.

Limiting the commandeering doctrine to save PASPA would pose significant federalism problems. Most obviously, it would make cooperative federalism much more difficult, if not impossible. If Congress can compel states to continue enforcing policies forever as long as the initial adoption was voluntary, a state would have to think long and hard before participating in any cooperative federalism arrangement. If a state initially agreed to participate, the federal government could bind the state forever, no matter how expensive, unpopular or ineffective the policy proved. To do so, it would only need to enact a statute like PASPA forbidding the state from “authorizing” any activity prohibited by the policy.

PASPA also undermines traditional federalism principles by denying states the ability to experiment with novel solutions to vexing public policy problems. Consider the recent federalism revolution on the issue of marijuana. Because of the failed federal war on drugs, many states have experimented with more relaxed regulations or wholesale legalization of the drug. If PASPA is constitutional, Congress could stop this federalism experiment (or any other) in its tracks by forbidding any more states from “authorizing” anything that was previously forbidden.

This kind of commandeering would also frustrate political accountability. When the federal government dictates policy to states, accountability is diminished at both the state and federal level. The federal government is less accountable because it can adopt feel-good policies but shift the hard questions of how to implement and pay for them to states. And accountability at the state level will be undermined because voters will reasonably punish state politicians for these policies if they prove unpopular, even though the politicians are powerless to do anything about them. We have seen this play out in New Jersey, where the voters adopted a state referendum calling for state-law reform, apparently in the mistaken belief that the state had any say in what state law should be.

It’s easy to underestimate this political accountability concern. Won’t voters realize what’s going on and vote accordingly, especially when the issue has received as much attention as PASPA has? Although intuitively appealing, this is a too-cheery view of politics. Because people’s time and attention are limited, and the likelihood that a single vote will affect an election is incomprehensibly small, voters are rationally ignorant on political issues. Only 42 percent of Americans can name the three branches of government. Hitting more closely to home for SCOTUSblog fans, only 34 percent can name a single Supreme Court justice. Expecting voters to understand the ins and outs of a relatively obscure statute like PASPA is out of the question.

The Supreme Court’s decision to take up the question of PASPA’s constitutionality is a welcome sign. Letting the 3rd Circuit’s decision stand would risk Congress using a similar approach to undermine federalism and political accountability in other policy areas. By deciding the constitutional question now, the Supreme Court can set the necessary limits on commandeering while only PASPA is at stake. It would be harder for the court to take this step if PASPA’s approach, currently confined to a failed statutory regime, spread to other, more politically sensitive issues.

The post Symposium: In sports-betting case, the Supreme Court should bet on federalism appeared first on SCOTUSblog.

Categories: Research

Symposium: Congress’ bet against equal sovereignty

Wed, 08/16/2017 - 10:27

Zachary S. Price is an associate professor at UC Hastings College of the Law.

Christie v. National Collegiate Athletic Association presents the question whether the federal Professional and Amateur Sports Protection Act impermissibly commandeers state legislatures by preventing them from “authoriz[ing]” certain sports gambling.

Another question, however, lurks in the background of that one: Are PASPA’s restrictions invalid because they apply only to some states and not others? Whatever the correct answer to the commandeering question, the answer to this second question is no. Doubts about PASPA’s overall validity should play no role in the Supreme Court’s decision in this case, because PASPA’s selective application to a subset of states is perfectly constitutional.

A few years ago, the Supreme Court famously embraced a principle of state equal sovereignty in Shelby County v. Holder. In that case, the court invoked a supposed “fundamental principle of equal sovereignty among the states” to invalidate the coverage formula for Section 5 of the Voting Rights Act of 1965. That law required covered states to obtain federal approval before enacting laws relating to voting. Characterizing this measure as “strong medicine,” the Supreme Court deemed it suspect because it applied only to some states and not others. Shelby County went on to hold that Section 5’s discrimination among states was insufficiently justified by “current conditions,” even though the Supreme Court had upheld the provision at other times in the past.

Four years earlier, the Supreme Court had floated this “equal sovereignty” idea in Northwest Austin Municipal Utility District Number One v. Holder. I published an essay in the NYU Law Review Online arguing that NAMUDNO’s equal-sovereignty principal was bunk. It still is, Shelby County notwithstanding.

Of course, the Constitution does guarantee the states certain forms of equality. Most significantly, it assures every state two senators. Hence, my state of California (with a population of 39 million) enjoys the glorious sovereign equality of Senate representation identical to Wyoming’s (population 590,000). In addition, the Constitution expressly bars unequal “Duties, Imposts, and Excises” and “Preference[s]” for one state’s ports over another’s. The 10th and 11th Amendments guarantee all states the same set of residual sovereign powers and the same sovereign immunity.

Under basic principles of textual interpretation, however, enumerating these specific forms of equality implies that Congress is not otherwise required to legislate equally for all states. What’s more, longstanding pre-Shelby practice and precedent bear out this inference.

As I explained in my essay, although a line of Supreme Court decisions did ensure that every new state entered the union on “equal footing” with its predecessors, the court applied this doctrine to invalidate laws that restrained new states in ways that went beyond what Congress could do to any state (old or new) through ordinary legislation. Thus, for example, in Coyle v. Smith, the court invalidated a state-admission condition that prevented the state from relocating its capital. In contrast, in other cases the court upheld conditions that treated states unequally but were rooted in Congress’ ordinary legislative powers.

As PASPA itself illustrates, many ordinary laws in fact have such unequal effects. For its part, PASPA prohibits sports gambling nationwide and bars states from authorizing it, but it expressly exempts states that had allowed sports lotteries or gambling before the law passed. The statute also gave New Jersey (and only New Jersey) one year to legalize certain sports gambling and thus escape the law’s strictures.

Laws like PASPA – and there are others (my essay and an article by Leah Litman each provide examples) – illustrate the mischief a broad understanding of equal sovereignty could cause. Perhaps not surprisingly, however, given the principle’s incoherence, no one seems to know just what Shelby County means or how it applies to laws other than the VRA.

Some commentary, most notably this thoughtful partial defense of equal sovereignty by Thomas Colby, has suggested that laws like PASPA are indeed suspect. Though rejecting any implication that state equal sovereignty requires “equal treatment in all respects,” Colby argues that the principle recognized in Shelby County should foreclose laws that expressly limit some states’ regulatory authority relative to others’. From that point of view, PASPA is suspect because it allows some states to permit sports gambling while preventing others from doing so. (This more recent essay offers another analysis of PASPA along similar lines.)

For all the reasons addressed earlier, I find this view unpersuasive as a matter of first principles. Congress includes exceptions of various sorts in statutes all the time; the Constitution gives no sound reason to think exceptions for particular states are suspect.

More to the point here, though, it is not at all clear that Shelby County used the term “sovereignty” in such a broad sense. After all, the Supreme Court in that case invalidated a selective restriction on states’ authority to alter voting rules and procedures. As the court emphasized in its opinion, voting laws are a “particularly sensitive area[] of state and local policymaking.” Federal statutes targeting such laws do not simply restrict state regulatory authority. Instead, they restrict state sovereignty in the more specific sense of impairing the state’s capacity to constitute itself as a sovereign governing authority in the first place.

The VRA’s means, moreover, were particularly demeaning to state authority. “States,” Chief Justice John Roberts wrote for the majority, “must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction [under other provisions of the VRA].”

Shelby County, then, need not imply that every impediment to state regulatory authority impairs state equal sovereignty. The decision might cast doubt only on laws that more directly interfere with selected states’ authority to constitute their own governing structures.

Alternatively, as Leah Litman has argued, the case might be understood to affect only laws that pose a particular affront to states’ equal dignity, as the VRA did by imposing intrusive burdens on particular states based on manifest suspicion of those states’ good faith. Either way, Shelby County’s equal-sovereignty principle does not necessarily call into question laws like PASPA that simply apply different regulatory requirements within different states.

In any event, even if laws like PASPA were suspect on equal-sovereignty grounds, there would be no reason to think the resulting heightened scrutiny should be fatal in fact. The Supreme Court found insufficient justification for the VRA’s coverage formula in Shelby County, but PASPA’s exceptions were generally designed to preserve existing sports betting in states that allowed (or sought to allow) such gambling at the time the federal legislation was adopted. Just as grandfather clauses and other exceptions to protect various forms of private reliance may be justified, a carve-out for states that relied in particularly pronounced ways on prior federal law should be constitutional.

Shelby County’s equal-sovereignty principle deserves the fate of all misguided precedents: a narrow construction that contains the damage and paves the way to overruling. Even taking Shelby County as a given, however, the decision need not cast doubt on PASPA’s validity. As the justices consider the commandeering issue presented in Christie, they should put aside any concerns about PASPA’s unequal application to different states.

The post Symposium: Congress’ bet against equal sovereignty appeared first on SCOTUSblog.

Categories: Research

Wednesday round-up

Wed, 08/16/2017 - 06:39

At BuzzFeed News, Chris Geidner reports that “[o]ne of the country’s top lawyers” has filed a cert petition on behalf of an Arizona death-row inmate who “has been arguing for the past three years that the state’s death penalty law is unconstitutional because it doesn’t do enough to narrow who is eligible for the death penalty, among those convicted of murder.” Additional coverage comes from Tony Mauro in The National Law Journal (subscription or registration required), who reports that “[f]ormer acting U.S. Solicitor General Neal Katyal is … asking the court to decide whether ‘the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.’”


  • In USA Today, Richard Wolf cites two upcoming Supreme Court cases, Husted v. A. Phillip Randolph Institute, which stems from a challenge to Ohio’s voter-roll purge, and Epic Systems Corp. v. Lewis, which asks whether mandatory-arbitration agreements that deprive workers of their right to collective proceedings are enforceable, as examples of the “Trump administration … switching sides in some of the nation’s most consequential legal battles.”

  • In The Economist, Steven Mazie reports on the pivotal role Justice Anthony Kennedy will likely play in several high-profile cases on the Supreme Court’s docket for October Term 2017.
  • At E&E News, Amanda Reilly reports that “[t]he Trump administration recently weighed in on two complex interstate water disputes in the Supreme Court, in both cases building on the arguments made by the Obama administration,” and that the administration’s “responses … come as the Supreme Court is considering reports issued by special masters assigned to the cases.”
  • At Balkinization, Mark Tushnet weighs in on Christie v. National Collegiate Athletic Association, in which the Supreme Court will decide whether a federal statute that prohibits New Jersey from repealing its ban on commercial sports betting is unconstitutional, arguing that “Congress has simply preempted state property law on this issue,” and “[i]t can’t be that the anticommandeering doctrine makes all federal laws preempting state property (or contract or tort) rights unconstitutional.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at]

The post Wednesday round-up appeared first on SCOTUSblog.

Categories: Research

Petition of the day

Tue, 08/15/2017 - 18:38

The petition of the day is:

Pacific Gas and Electric Company v. United States 17-57

Issues: (1) Whether sales of energy through centralized market exchanges form direct contractual privity between buyers of that energy and the federal agencies selling it, such that the Court of Federal Claims has jurisdiction over a suit to recover overcharges from the federal agencies; and (2) whether petitioners were in privity with the federal power marketing agencies for those sales because the energy exchanges acted as the parties’ agents in facilitating their transactions.

The post Petition of the day appeared first on SCOTUSblog.

Categories: Research

Symposium: Lift the harmful, failing federal ban on sports betting

Tue, 08/15/2017 - 14:26

Stacy Papadopoulos is general counsel and senior vice president of industry services at the American Gaming Association, which filed a cert-stage amicus brief in support of the challengers in Christie v. National Collegiate Athletic Association.

In 1992, Congress enacted the Professional and Amateur Sports Protection Act, which prohibits all but a few states from legalizing and regulating sports betting. A quarter of a century later, sports fans, state policymakers, the law-enforcement community and even some professional sports leagues agree that PASPA is misguided and failing. During its next term, the Supreme Court will decide whether PASPA is also unconstitutional.

There is no dispute that Congress could, as a matter of federal law, prohibit or regulate interstate sports betting, and in the process pre-empt any state law on the subject. But PASPA does not do that. Instead, PASPA forces states to continue prohibiting sports betting as a matter of state law – and, presumably, to enforce those prohibitions using state resources. State governments are required to maintain their sports-betting laws as they existed in 1992, but have no power to amend, strengthen or repeal those laws. The effect of PASPA has been to freeze in place state law as it existed in the early 1990s and to interfere with states’ police powers and authority to regulate local matters of economic development and public morality.

For over a century, however, the Supreme Court has made clear that Congress may not require states to require or prohibit certain acts, even when the federal government could require or prohibit those acts in the first instance. Under this “anti-commandeering doctrine,” the court has repeatedly struck down laws that coopt the states’ law-enforcement apparatus and treat states as mere outposts of the federal government. Thus, in New York v. United States, the Supreme Court held that Congress could not force states either to take title to low-level radioactive waste generated within their borders or to adopt federal standards regulating such waste. Similarly, in Printz v. United States, the court determined that Congress could not compel state law-enforcement officials to perform background checks for would-be purchasers of firearms. Simply put, Congress may not command states to “promulgate and enforce laws and regulations,” control or influence the manner in which states “regulate private parties,” or “require the States … to regulate their own citizens.” This is because, as the Supreme Court has recognized, a state’s ability to decide what its own law is (or is not) is a “quintessential attribute of sovereignty” and “precisely what gives the State its sovereign nature.”

PASPA violates these core principles of American federalism by compelling almost every state to continue prohibiting sports betting, regardless of what is in the best interest of the state and its citizens. The harm of such federal overreach is more than purely structural. Preserving a state’s autonomy to enact, enforce, modify and repeal its own laws as it sees fit protects individual rights and promotes democratic accountability. PASPA’s effect on New Jersey’s long-running effort to legalize and regulate sports betting is a prime example of what happens when the people who are required to enforce a law are prohibited from changing that law to reflect new circumstances or evolving public opinion.

As a policy matter, PASPA is a failure. Passed with the salutary purpose of protecting problem gamblers and shielding the integrity of sports, PASPA has fueled a thriving black market that operates beyond the reach of law enforcement or regulatory oversight. My organization, the American Gaming Association, estimates that each year, Americans illegally wager more than $150 billion on U.S. sporting events. In other words, if the U.S. illegal sports-betting market were a company, it would have come in at No. 11 on the Fortune 500 – right behind AT&T and Ford, two spots ahead of Amazon, and with annual revenue roughly equal to the combined revenue of Microsoft, Facebook and Goldman Sachs. The prevalence of illegal sports betting is particularly concentrated around the nation’s most popular sporting events. Earlier this year, Americans bet an estimated $15 billion on the Super Bowl and the NCAA men’s basketball tournament; an estimated 97 percent of those bets were illegal.

This black market exists only because of PASPA. When given a choice between a black market and a legal, regulated market, consumers invariably choose the latter. In Nevada, the United Kingdom, and other places with legal sports betting, there simply is no demand for illegal betting. Because PASPA forces almost all sports betting underground, the statute has failed to protect consumers or local communities. In an unregulated market, bettors cannot rely on consumer-protection laws or even basic principles of contract enforcement. As a result, those citizens – particularly low-income and otherwise disadvantaged individuals – are susceptible to exploitation. Illegal sports revenue not only exacts personal costs on individuals, it also inflicts broader social damage: Illegal sports-betting revenue funds organized crime and other illicit activity, such as drug and human trafficking, money laundering and racketeering. PASPA prevents states from redirecting that revenue to lawful, productive means. A recent report by Oxford Economics estimates that repealing PASPA and creating a regulated market for sports betting would create up to $26.6 billion in annual economic impact, including up to $14.2-billion growth in gross domestic product, $5.3 billion in tax revenue and $7.5 billion in wages.

It also is unclear that PASPA even protects the integrity of professional and amateur sports. In countries with legalized sports betting, law-enforcement agencies, sports leagues and betting operations can use aggregate data to identify suspicious betting patterns. Just last year, a legal sports book alerted authorities to suspect betting patterns on doubles matches at the Australian Open. By contrast, in the United States, if point-shaving or match-fixing is uncovered, it is almost always by accident and as the result of an unrelated investigation. Given these facts, it is not surprising that a majority of sports fans and even the commissioner of the National Basketball Association now support a legal, regulated sports-betting market.

Sports fans, law-enforcement authorities and state governments demand change. In 2011, the voters of New Jersey – recognizing the failure of prohibition and seeking to capture the tremendous economic potential of a safe and regulated betting market – overwhelmingly passed a ballot initiative authorizing the state legislature to legalize sports betting. The state has taken this cause all the way to the Supreme Court. Should New Jersey succeed in its effort, more states are likely to follow. As of July 24, there are currently 23 bills in 13 other states that could potentially legalize sports betting. Once PASPA is overturned or repealed, federal and state government, law-enforcement agencies, the gaming industry and the sports leagues will be able to devise a 21st-century regulatory framework that protects bettors, generates revenue for local communities and protects the integrity of our national pastimes.

The post Symposium: Lift the harmful, failing federal ban on sports betting appeared first on SCOTUSblog.

Categories: Research

Symposium: Sports-betting ban clearly within Congress’ power over interstate commerce

Tue, 08/15/2017 - 10:56

Michael K. Fagan, an adjunct professor at Washington University Law, coordinates the Predatory Gambling Liability Project, a strategic litigation effort of the 501(c)(3) group, Stop Predatory Gambling. He served as a career federal prosecutor and as Special Attorney to U.S. Attorney General Janet Reno.

As its recent term drew to a close, the U.S. Supreme Court surprised many observers by agreeing to hear New Jersey’s and the commercial gambling industry’s appeals in Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA. The cases have been consolidated and will be argued together, most likely in the late fall or early winter. The cert grants came despite the U.S. solicitor general’s opposition and despite the Supreme Court’s fairly recent denial of cert to the same parties in an earlier iteration of the cases.

The consolidated cases involve defiance of a federal statute, the Professional and Amateur Sports Protection Act, by New Jersey and its controlling partner, the commercial gambling industry. PASPA prohibits states and individuals from actively taking steps to facilitate or engage in state-sponsored commercial sports gambling, and it explicitly bans states from authorizing or licensing such activities. Enacted in 1992, PASPA excluded from its prohibition the handful of then-existing state-authorized commercial sports-gambling schemes. These pre-existing configurations were not seen as threats to interstate commerce and the national economy in the same harmful ways or to the same extent as widespread commercial sports gambling. PASPA also provided that if New Jersey were to authorize commercial sports gambling in its Atlantic City casinos within one year of PASPA’s effective date, the exemption from PASPA’s prohibition would extend to that action; however, New Jersey did not act in time and its potential exemption expired.

Nearly a generation later, however, with an eye toward raising state revenue via taxation and relying upon an intervening amendment to its state constitution, New Jersey twice passed laws attempting to allow commercial sports gambling to take place in the state – as long as the gambling did not involve college sporting events taking place in New Jersey or games played anywhere by teams from New Jersey colleges. Each time, the major professional sports leagues and the NCAA sought and received federal court injunctive relief (as PASPA enables affected sports leagues to do) to block New Jersey’s perceived disregard of PASPA. Two district-court judges, two different panels of the U.S. Court of Appeals for the 3rd Circuit, and the en banc appellate court rejected claims that PASPA violates the anti-commandeering doctrine by requiring a state to administer or enforce a federal regulatory program. (In each of the appellate rulings, dissents were filed.)

Defending its most recent enactment, New Jersey maintained that its statute merely repealed state laws against commercial sports gambling and was neither an authorization or licensing of such gambling, so that PASPA was not violated. The sports leagues and the federal courts’ majorities, however, observed that the language used in New Jersey’s statute plainly was intended and served to authorize commercial sports gambling only at limited, pre-existing licensed gambling venues and only for certain people. Substance prevailed over form. The practical authorizing effect of the state statute controlled, said the 3rd Circuit majorities, rather than any legislative effort to beguile by labeling the law as a mere repeal. Finding a plain conflict between the state law and PASPA’s prohibitions, the appellate majorities then determined that PASPA did not offend the anti-commandeering doctrine, because it did not require the state to do anything affirmatively. The courts concluded that PASPA barred the state from permitting commercial sports gambling.

One way some have framed the issue now before the Supreme Court is whether PASPA, seen as a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct, impermissibly commandeers the regulatory power of states in contravention of two 1990s-era cases, New York v. United States and Printz v. United States. PASPA, however, does not prohibit modification or repeal of state-law prohibitions on solely private conduct. Rather, it prohibits states (actually, any “governmental entity”) or persons “acting pursuant to the law or compact of a governmental entity” from engaging in certain conduct. That prohibited conduct is “to sponsor, operate, advertise, promote, license, or [as might a governmental entity, to] authorize by law or compact” any gambling scheme on any athletic game or individual performance in a game. PASPA’s prohibitions do not preclude conduct unless it is pursuant to some government’s authorizing or licensing law, which, by definition, makes the conduct something other than entirely private. PASPA’s prohibition on governmental conduct is also not a prohibition on “private” conduct, because governmental conduct is, by definition, public.

The 1990s-era cases cited above gave rise to the judge-made anti-commandeering doctrine, a doctrine rooted not in the words of the 10th Amendment or elsewhere in the Constitution (originalists, take note), but in a perceived structuring by that document of relationships between the federal and state governments. The contours of that structuring, of course, depend on which justices, activist or otherwise, are doing the perceiving. The doctrine presently says that Congress cannot compel the states to enact or enforce a federal regulatory program affirmatively or directly. It protects states from being “commandeered” against their will into spending their resources or their officials’ reputations on some federal regulatory effort.

Yet PASPA’s prohibitions plainly do not require the legislating state either to act affirmatively or to expend resources or reputation by regulating a federal program. Instead, PASPA obligates states (and other governmental entities) not to act in ways that may injure and corrupt channels of interstate commerce; that impair other states’ commercial and quality-of-life interests; that defy national protective policies inherent in the constitutionally assigned federal powers over interstate and foreign commerce and taxation; and that, in the aggregate, remove capital from productive uses to involve it in sterile transfers of wealth.

The commerce and supremacy clauses of the United States Constitution have long afforded the federal government ample power to prohibit a state from passing laws that shift from the legislating state to other states and to the national government the costs of a state-authorized vice occurring in the legislating state, when that vice both necessarily affects interstate commerce and does so by design. This is especially the case when the legislating state has not allowed or provided recompense for the harms associated with the vice.

New Jersey’s attempt to authorize commercial sports wagering necessarily affects interstate commerce, most plainly because the state’s statute bans bets on games involving New Jersey colleges. This, of course, attempts to protect New Jersey colleges from the integrity risks inherent in sports gambling. The ban, however, shifts the risks of corruption to other states’ college games and related commercial interests. Precluding such self-interested legislation that disadvantages other states is a key reason why the U.S. Constitution granted the federal government broad powers over interstate and foreign commerce. Since Gibbons v. Ogden in 1824, Congress’ power to prevent commercial wars among the states (as PASPA does) has been well-established.

The Supreme Court has repeatedly upheld those broad federal powers, especially when they are exercised (i) to limit the use of interstate and foreign commerce as vehicles for criminal activity; (ii) for nonproductive or illicit wealth transfers; (iii) for tax-evasive activities; (iv) for thwarting state laws prohibiting, limiting or regulating commercial gambling; and (v) for increasing wealth disparity, imposing costly mental and other health burdens, and harming family cohesion. PASPA advances each of these aims. People may argue over whether PASPA promotes a wise policy, but nothing about the statute violates settled constitutional law.

Like all commercial gambling (and unlike noncommercial gambling), government-authorized commercial sports gambling’s business model seeks:

[1] to get as many people as possible

[2] to gamble as often as possible,

[3] for as long as possible,

[4] and to bet as much as possible.

These four goals are largely absent from noncommercial (e.g., private, social or most charitable) gambling. They ensure that both gamblers and nongamblers would lose from nationally-expanded legalization of commercial sports gambling, because there is no way to limit to only gamblers or the industry the social and economic harms and costs inherent to commercial gambling. PASPA recognizes this reality.

Organized harm, made unlawful, does not become harmless simply because a state attempts to make it lawful. PASPA recognizes this reality, too. And when that organized harm affects interstate or foreign commerce, the power to regulate or prohibit it resides with Congress, as it has for centuries.

Unless at least five members of the Supreme Court seek to markedly expand or modify the anti-commandeering doctrine, it is difficult to see why the court granted certiorari in this case, in which the primary issues are clearly political, not constitutional.

(The Supreme Court may address other doctrinal arguments, such as PASPA’s interplay with the equal-sovereignty or private-non-delegation doctrine, but the cert grant focused on the anti-commandeering issue, so I have not discussed these other arguments here.)

The post Symposium: Sports-betting ban clearly within Congress’ power over interstate commerce appeared first on SCOTUSblog.

Categories: Research

Tuesday round-up

Tue, 08/15/2017 - 07:02


  • Constitution Daily looks at three Supreme Court cases involving the Ku Klux Klan that posed “fundamental First Amendment questions about the ability of organized white supremacists to speak and demonstrate in the public forum.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro urges the Supreme Court to review a florist’s First Amendment challenge to a state antidiscrimination law, arguing that “[w]hile same-sex couples ought to be able to get marriage licenses—if the state is involved in marriage at all—a commitment to equality under the law can’t justify the restriction of private parties’ constitutionally protected rights like freedom of speech or association.”
  • In an op-ed at STAT, Michael Burg weighs in on the court’s recent opinion in Bristol-Myers Squibb Co. v. Superior Court of California, in which the justices reversed a state court finding  specific personal jurisdiction over out-of-state plaintiffs in a multistate lawsuit, arguing that “[b]y foreclosing to plaintiffs state court venues other than those where [defendant] companies are ‘at home’ — generally meaning where they are headquartered or incorporated — the Supreme Court has placed an almost impossible burden on state court litigants.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at]

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Categories: Research

Petition of the day

Mon, 08/14/2017 - 16:44

The petition of the day is:

McCarthan v. Collins 17-85

Issue: Whether a person in federal custody is entitled to file an application for habeas corpus under 28 U.S.C. § 2241 because a 28 U.S.C. § 2255 motion is “inadequate or ineffective” to permit him to raise a claim that his conviction or sentence is invalid under an intervening and retroactively applicable statutory-interpretation decision of the Supreme Court.

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Categories: Research

The 10th Amendment, anti-commandeering and sports betting: In Plain English

Mon, 08/14/2017 - 12:19

Most Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But the 10th Amendment is at the heart of an important Supreme Court case this fall, in which New Jersey and a group of horse-owners will argue that a federal law that bars virtually all states from legalizing sports betting violates the Constitution.

The federal law is the Professional and Amateur Sports Protection Act (known as PASPA), which Congress passed in 1992. PASPA makes it illegal for states to “authorize” “a lottery, sweepstakes, or other betting, gambling, or wagering scheme based” “on one or more competitive games in which amateur or professional athletes participate.” PASPA grandfathered in four states – Delaware, Montana, Nevada and Oregon – that already had sports gambling, and it also carved out an exception for New Jersey that would have allowed sports betting at the state’s casinos, as long as the state set up the scheme within one year after PASPA went into effect.

New Jersey didn’t take advantage of that exception at the time, but nearly two decades later the state appeared to have second thoughts. In 2010, the New Jersey legislature held hearings to consider the possibility of sports betting, which would benefit the state’s struggling racetracks and casinos. In 2011, New Jersey residents overwhelmingly voted to amend the state’s constitution to give the legislature the power to legalize sports betting, which the legislature did in 2012. The National Collegiate Athletic Association and the four major professional sports leagues – the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball – quickly went to federal court to challenge the 2012 law, arguing that it violated PASPA.

The state did not dispute that the 2012 law conflicted with PASPA. Instead, it countered that PASPA violates the 10th Amendment, which the Supreme Court has interpreted to prohibit the federal government from “commandeering” the states to enforce federal law. But the lower courts rejected that argument, with the U.S. Court of Appeals for the 3rd Circuit ruling that the “anti-commandeering doctrine” did not apply because PASPA does not require the states to do anything; it simply bars them from allowing sports betting. The Supreme Court denied review of that decision.

In 2014, the New Jersey legislature returned to the drawing board. It passed a new law that did not affirmatively legalize sports betting, but instead repealed existing prohibitions on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and professional sports leagues again went to federal court, where the lower courts once again ruled for the leagues. This time, the full 3rd Circuit ruled that, even though New Jersey had “artfully couched” the 2014 law as simply a “repealer,” the statute nonetheless authorized sports betting at casinos and racetracks in the state. This time the Supreme Court agreed to weigh in, granting two petitions for review by New Jersey Governor Chris Christie and the New Jersey Thoroughbred Horsemen’s Association, a group of horse-owners and trainers that also owns a racetrack in New Jersey, which the group believes can only be saved from financial ruin by money from sports betting.

In the Supreme Court, Christie and the NJTHA portray PASPA as an attempt to to take over the legislature’s job that is “dramatic, unprecedented, and in direct conflict with this Court’s Tenth Amendment jurisprudence barring Congress from controlling how the States regulate private parties.” Unlike the 2012 law, they emphasize, the 2014 law does not affirmatively authorize sports betting, but instead just repeals the existing bars on sports betting at casinos and racetracks, without giving the state any role to play in the sports betting that will follow. Indeed, they point out, during the litigation challenging the 2012 law, the federal government itself told the 3rd Circuit that New Jersey was “free to repeal those prohibitions in whole or in part.” And if the 10th Amendment bars the federal government from requiring states to regulate, they contend, it must also be true that the federal government cannot require states to keep on their books laws that they have opted to repeal – which amounts to essentially the same thing as mandatory regulation.

Christie and the NJTHA also warn the justices of dire consequences if the leagues prevail. Looking beyond sports betting, they caution that if the 3rd Circuit’s interpretation of “authorization by law” as also barring repeals is allowed to stand, “it is not difficult to imagine other examples in which Congress could dictate policy outcomes in States without ever having to legislate directly. Rather than enact gun control measures of its own, for example, Congress could prohibit States from relaxing existing restrictions on the purchase of firearms by particular persons.”

The NCAA and the leagues push back, praising the 3rd Circuit’s ruling as a “commonsense conclusion.” The Supreme Court’s cases, they stress, make clear that the anti-commandeering doctrine only comes into play when Congress expressly creates obligations that “force states to do Congress’ bidding.” But PASPA, they suggest, does nothing of the sort: “It does not compel states (or state officials) to do anything,” but instead simply bars the states from authorizing sports betting. In that sense, they argue, PASPA isn’t any different from “scores” of other federal laws that regulate the states by specifically barring them from passing laws that “conflict with federal policy.” And in this particular case, the leagues observe, there is direct evidence that Congress would have viewed the state’s current efforts to allow sports betting at casinos as a PASPA violation: PASPA specifically gave the state “an exemption for a one-year window, and only a one-year window, to adopt such a law.”

The leagues also reject New Jersey’s argument that the 2014 law only repeals some prohibitions on sports betting, rather than authorizing it, as “mere semantics.” Even if New Jersey calls the 2014 law a “partial repeal,” the leagues say, it is still an authorization. To be sure, the leagues concede, PASPA does not necessarily prohibit “any and all state efforts to repeal or alter existing sports gambling prohibitions.” But it does require courts to look at “the substance of state laws, not just at labels.” And here, the leagues conclude, the 3rd Circuit was correct that, “whatever else PASPA may prohibit or permit, it does not allow a state to use wordplay to channel sports gambling to its favored venues for state-authorized gambling while prohibiting it everywhere else.”

The justices often grant review to resolve differences in opinion among the federal courts of appeals. However (as the leagues emphasized in urging the court to stay out of the dispute), there is no such division in this case, and – when asked by the Supreme Court to weigh in – the federal government (whose opinions the justices take seriously) recommended that review be denied. The fact that the Supreme Court nonetheless agreed to take on the case suggests that at least several justices regard the 10th Amendment issue as an important one; we’ll know more about how they are likely to rule when they hear oral argument this fall.

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Categories: Research

In Recess #3: “Third Class Webelo”

Mon, 08/14/2017 - 08:40

On the latest edition of our summer series, “In Recess,” Dan Epps and official guest host Leah Litman (filling in for Ian Samuel, who is enjoying a Croatian vacation) get you up to speed on what has been happening at the Supreme Court. We discuss some particularly interesting briefs that have been filed in pending cases, including the U.S. Department of Justice’s brief in Husted v. A. Philip Randolph Institute, in which the solicitor general’s office changed its views on an important voting-rights issue. We also discuss the unexpected developments in PEM Entities LLC v. Levin, a bankruptcy case that was going to be argued next term that was “dismissed as improvidently granted” last week. To help us make sense of that unusual order, and what might have prompted it, we bring in official First Mondays bankruptcy expert Danielle D’Onfro, who expands on her analysis of the order in her post last week. But that’s not all: We also have an interview with the great John Elwood, partner in Vinson & Elkins’ appellate practice group and creator of Relist Watch, an invaluable recurring feature on this blog.

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Categories: Research

Monday round-up

Mon, 08/14/2017 - 07:17


  • In The Washington Post, Robert Barnes reports on Masterpiece Cakeshop v. Colorado Civil Rights Commission, noting that “the Supreme Court took its own sweet time” deciding whether to review the “dispute between a gay couple and a baker who refused to make them a wedding cake,” and that “[s]ome liberals wonder … whether a liberal justice might have tipped the scale,” on the theory that “[i]f the proliferation of cases around the country means Supreme Court intervention is inevitable, … better to take it while Justice Anthony M. Kennedy is on the court.”
  • At Empirical SCOTUS, Adam Feldman examines the effect of lower-court dissents on Supreme Court case grants and outcomes, focusing on whether “some judges’ dissents are given more weight than others.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro argues that to resolve Carpenter v. United States, which asks whether the government must obtain a warrant before acquiring cell-site-location information from wireless carriers, the Supreme “Court should return to the text of the Fourth Amendment and recognize that data and digital communication are property that are protected by the papers and effects part of the Fourth Amendment.”
  • At TeenVogue, Emma Sarran Webster marks Justice Ruth Bader Ginsburg’s 24th anniversary on the Supreme Court by looking at four of the justice’s opinions in major cases.
  • In an op-ed at Forbes, Nick Sibilla urges the court to review a case that asks “whether or not the government has to pay entrepreneurs if it destroys their businesses with eminent domain.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at]

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Categories: Research

Petition of the day

Fri, 08/11/2017 - 18:22

The petition of the day is:

Minnesota Voters Alliance v. Mansky 16-1435

Issue: Whether Minnesota statute § 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.

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Categories: Research

Surprise dismissal of bankruptcy case seemingly prompted by change in claim ownership

Fri, 08/11/2017 - 15:29

On Thursday, the Supreme Court took the unusual step of dismissing PEM Entities v. Levin, a bankruptcy case that had been scheduled to be heard this coming term. Occasionally, the court dismisses previously granted cases as “improvidently granted” before reaching the merits. This can happen when a party shifts its argument in its merits brief, when it becomes clear that a dispute is highly fact-bound, or when the justices discover that the case involves so-called “vehicle problems” that may prevent the court from reaching the merits.

Such dismissals are fairly rare, but yesterday’s was particularly unusual, because it came merely six weeks after the grant and before the parties had filed their briefs on the merits. As is customary, the court’s order did not explain the reasoning behind the dismissal. The dismissal appears, however, to have been prompted by a joint motion that was filed on July 21 by the petitioner, PEM Entities, and another party, Province Grande Olde Liberty, LLC, which was attempting to step into the shoes of the respondents. This being a bankruptcy case, the various parties and their relative interests were already quite complex; post-grant changes to those interests revealed in the motion appear to have spooked the court.

PEM Entities had purchased a large secured claim against PGOL at a steep discount, after PGOL had defaulted on the loan. Although PGOL was in default, PEM Entities did not move to foreclose on the loan immediately. PGOL was nonetheless unable to resolve its financial distress and ultimately filed for bankruptcy under Chapter 11, with its sole asset – a golf course and accompanying development – encumbered by PEM’s loan. The respondents in the Supreme Court, Eric M. Levin and Howard Shareff, were junior claims-holders who could recover from the bankruptcy estate only if the court did not treat PEM Entities’ loan as secured debt. Accordingly, Levin and Shareff brought an adversary proceeding against PEM Entities and PGOL seeking to “recharacterize” PEM Entities’ secured claim as equity. Although it was named as a defendant, PGOL, as the debtor facing the loss of its only asset to its secured creditor, unsurprisingly did not oppose Levin and Shareff’s recharacterization claim and did not participate in the appellate process.

The bankruptcy court, following precedent of the U.S. Court of Appeals for the 4th Circuit, applied a “federal test” for recharacterizing the claim, which allowed it to consider both the discounted price at which PEM Entities purchased the loan as well as the fact that PEM Entities had decided not to foreclose immediately upon default. A number of other federal courts of appeals apply state-law-based tests for recharacterization that consider different factors. The district court and the 4th Circuit affirmed the bankruptcy court’s ruling based on precedent. PEM Entities filed a petition for certiorari; with an acknowledged circuit split over the competing tests for recharacterization, the case was a logical grant.

But, as is typical of bankruptcy cases, the particular dispute between the parties that formed the basis of the petition for certiorari was only one of several disputes among competing groups of claimants. After the case was granted, a member of PGOL acquired Levin and Shareff’s financial interest in the case as part of the settlement of a different case in state court. That settlement gave PGOL the right to defend Levin and Shareff’s recharacterization claim. That is, although it was originally one of the defendants in the case, PGOL, the debtor, assumed the plaintiff’s position in the dispute that the Supreme Court had agreed to hear. Just shy of a month after the Supreme Court granted the petition, PEM Entities and PGOL filed a joint “Motion to Confirm Party Status” explaining this change and asking the court “to confirm that PGOL … is a respondent in [the case], with a right to defend in this Court the judgment of the court of appeals.”

Although the parties changed, the merits of the case remained the same; PGOL appeared ready to champion the position that the court had been expecting the original respondents, Levin and Shareff, to take. Nonetheless, the court appeared to find the unexpected change a reason to dismiss the writ of certiorari. The Supreme Court seems to have become particularly wary of vehicle problems in recent years – as exemplified by a relatively new policy of relisting cases before granting certiorari noted on this blog by John Elwood. The justices seem to have decided that this case was not worth the risk of hearing argument if there was some chance it might have to be dismissed later.

Whether or not they intended it, the original respondents may have found a clever way to preserve their victory below: They made the case an intolerably complex vehicle after PEM Entities had prevailed in obtaining certiorari. Given how common and easy it is for parties in bankruptcy cases to sell their interests in particular claims, it remains to be seen whether this technique could become an effective strategy respondents in future bankruptcy cases can use to defeat certiorari after a grant.

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Categories: Research

Symposium: Wechsler, history and gerrymandering

Fri, 08/11/2017 - 13:53

Edward B. Foley is the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and the director of Election Law @ Moritz at The Ohio State University Moritz College of Law.

Will Gill v. Whitford get its “Wechsler brief”?

In New York Times v. Sullivan, the Supreme Court received perhaps the most influential brief in history. Herbert Wechsler, the renowned Columbia Law professor and author of the Model Penal Code (among many other accomplishments, including the famous “Fed Courts” casebook), had been hired by the newspaper to help defend against the libel charge filed in state court by an Alabama police commissioner. The Times had lost in the Alabama Supreme Court, and securing a reversal in the federal Supreme Court would be no easy feat.

Only a decade earlier, in Beauharnais v. Illinois, the Supreme Court had all but declared libel law off-limits to First Amendment protection. Justice Felix Frankfurter, widely regarded as an intellectual titan of his era, wrote that opinion. Although Beauharnais was technically distinguishable, the Times needed the Supreme Court to repudiate the jurisprudential presuppositions upon which it rested. Wechsler wrote a brief for the Times convincing the court to do just that. The court, by embracing Wechsler’s brief, converted it into the supreme law of the land, where it remains enshrined.

How did Wechsler do it?

He did it by reframing the relevant history. Beauharnais was premised on the fact that courts, going back to the origins of the country, had not recognized a First Amendment immunity in libel cases. That was true. But as Wechsler brilliantly argued, it was also beside the point. Because the plaintiff in the Times case was a public official, the relevant concept was seditious libel. The subject of sedition had been controversial since the founding. Specifically, the Sedition Act of 1798 deepened the emerging partisan rift between President John Adams and the Federalists, on the one hand, and Vice President Thomas Jefferson and the Democratic-Republicans, on the other.

The Supreme Court had never invalidated the Sedition Act on First Amendment grounds, a fact which would seem to support Frankfurter’s position. But the court also had never upheld the Sedition Act’s constitutionality, and Wechsler used that key point to turn the issue around. Although the status of the Sedition Act had remained ultimately unsettled in the judiciary, it had been ruled upon definitively in an even more important forum: the tribunal of historical judgment.

Here is how Wechsler’s brief put the point: “Though the Sedition Act was never passed on by this Court, the verdict of history surely sustains the view that it was inconsistent with the First Amendment.” This point became the centerpiece of the Supreme Court’s opinion in New York Times v. Sullivan: “Although the Sedition Act was never tested in this Court, the attack on its validity has carried the day in the court of history.” From this proposition, everything else flowed. The litany of cases cited by Frankfurter was superseded by this overriding historical judgment — a judgment that led the Supreme Court to protect the Times from a libel suit by a public official.

How is all this relevant to the issue of gerrymandering in Gill v. Whitford?

In Vieth v. Jubilerer, the Supreme Court’s previous gerrymandering case from a decade ago, Justice Antonin Scalia wrote an opinion not unlike Frankfurter’s in Beauharnais. Scalia’s main observation was that gerrymandering had been a prevalent practice going back to the founding and had not been rejected as unconstitutional by the courts. That observation is true as far as it goes, but (as Wechsler would say) it is beside the point. The judgment of history has been that gerrymandering is antithetical to the proper functioning of a free republic, which the Constitution (including its First Amendment) promises to secure.

In a recent law review article, I demonstrate that throughout the 19th century (including at the time of the 14th Amendment’s adoption), gerrymandering was judged to be an evil inconsistent with constitutional self-government. This is not to deny that gerrymandering was widely practiced. On the contrary, 19th-century politicians themselves recognized that gerrymandering was like alcohol abuse, from which they needed protection.

James Garfield, for example, while he was in Congress before he became president, denounced the “evil” of his own gerrymandered district, although fully aware that he personally benefited from “a large portion of the voting people” in his constituency being “permanently disenfranchised” by a “practice” incompatible with “representative government.” Politicians, in other words, routinely did it – maybe even couldn’t help themselves from doing it – but, like drinking too much liquor, succumbing to this temptation did not make it right. Rather, the prevalence of the practice only reinforced the need for a constitutional constraint, so that the ordinary operation of politics (including the politicians themselves) could be protected from this abuse.

Here is the relevant analogy to the Sedition Act: The fact that prosecutions of seditious libel are part of America’s past, and were not judicially invalidated at the time, does not make them any less unconstitutional. The past is messy, and even otherwise honorable statesmen – like John Adams or James Garfield – have acted unconstitutionally in the ordinary course of political competition against their partisan adversaries. Not everyone at the time agreed that the Sedition Act was unconstitutional; the Federalists vociferously defended it. Nor did everyone in the 19th century agree that gerrymandering was intolerable; Elbridge Gerry surely didn’t. But this lack of unanimity in the moment of political battle is hardly dispositive on the correct constitutional understanding of the matter.

Rather, the question is how history has come to judge the behavior that occurred as part of America’s inevitably impure past. Does history ultimately deem an activity to be constitutionally acceptable – on the right side of history, so to speak? Or, instead, does history ultimately condemn the activity as constitutionally unacceptable – on the wrong side of history?

The Wechsler brief, embraced by the Supreme Court in New York Times v. Sullivan, put seditious libel on the wrong side of history and thus, of necessity, constitutionally out of bounds. The same can be said of gerrymandering.

The Wechsler brief is relevant to Gill in another way. It used the historical condemnation of the Sedition Act as the foundation upon which to anchor the doctrinal edifice that courts would need to construct in order to evaluate the constitutionality of state libel laws. The Supreme Court couldn’t simply say that the Sedition Act itself was unconstitutional and leave it at that. The Sedition Act was not directly at issue in the Times case; it was a federal statute that had long since lapsed, and the Times was at risk of liability from a state libel law that did not specifically invoke the concept of sedition. But in crafting the doctrinal details for determining when a public official could hold a newspaper liable for the content of its publication – the required elements of the claim, the standard of proof and so forth – the Supreme Court’s analysis (as guided by Wechsler) was firmly rooted in the fundamental proposition that a state law having the same essential characteristics as the Sedition Act, and thus belonging in the same category, must be held unconstitutional.

The same judicial methodology is employable in Gill v. Whitford. In framing the doctrine to determine whether a redistricting map is unconstitutional, the Supreme Court can anchor its analysis in the longstanding historical condemnation of the original Gerry-mander. Just as the Sedition Act is the touchstone for determining what is an unconstitutional libel law, so is the original Gerry-mander the touchstone for determining what is an unconstitutional redistricting map. Indeed, as I explore in a contribution to a William & Mary Law Review symposium, the measurable degree of distortion in the district lines of the original Gerry-mander can be used as the constitutional benchmark for establishing a prima facie case that a modern map is equivalently improper. (This constitutional benchmark can serve as the “judicially manageable standard” necessary to overcome the “political question doctrine” concerns that were so prominent in Vieth and are at issue again in Gill.)

There is an added benefit to rooting the constitutional analysis of gerrymandering in this historical analysis – a benefit illustrated by the success of New York Times v. Sullivan as a Supreme Court opinion that has stood the test of time. In its understanding of the relevant history, Sullivan identified a truth about our national character: We are not a nation that thinks it legitimate to punish sedition. In identifying this truth and making it part of constitutional doctrine, the Supreme Court in Sullivan helped to strengthen this national character. The Supreme Court, in effect, helped the nation mature into the country it was struggling, but striving, to be.

The court can play the same role in the context of redistricting. Are we a nation where it is okay, or not okay, to manipulate a legislative map so that “in practice,” as future president Garfield put it, “a large portion of the voting people are permanently disenfranchised”? In answering this question, the court in Gill v. Whitford will be determining not just who we are now as a people, but who we will become over the coming decades.

When we look back on the half-century since Sullivan, we see a legacy in which the Supreme Court itself contributed to America’s growth as a people committed to political freedom. Sullivan is entrenched as precedent precisely because it is now indelibly part of our national self-understanding. For Gill to be successful like Sullivan, it too will need to become woven into our sense of America as a democracy. The way for Gill to accomplish this is to declare: “Although the original Gerry-mander was never tested in this Court, the attack on its validity has carried the day in the court of history.” If the court says this, then 50 years from now – thanks in large part to Gill itself – we may have matured into the genuinely representative democracy we are still striving to be.

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Categories: Research

Symposium: The efficiency gap is a measure, not a test

Fri, 08/11/2017 - 10:39

Eric McGhee is a research fellow at the Public Policy Institute of California. PPIC has not reviewed or endorsed this blog post, and takes no position on its use for any purpose. The views expressed are McGhee’s personal views, and not those of PPIC.

One of the more unusual aspects of Gill v. Whitford is the role played by a new measure of partisan advantage called the efficiency gap. In district-based elections, some votes are “wasted” in the sense that they do not contribute to a victory. These include any votes cast for a losing candidate, as well as those cast for a winner in excess of the number required to win. The party with more wasted votes is at a disadvantage because its support does not translate as efficiently into representation. Parties that gerrymander try to saddle the opposing party with more wasted votes by “packing” that party’s supporters into a small number of districts it will win handily and “cracking” the rest into districts that the party narrowly loses. The EG is just a summation of all the packing and cracking in a plan. It takes the difference between the total wasted votes for each party and divides it by the total number of votes cast.

The plaintiffs in this case relied on the EG (among other measures) in the lower court, and the lower court itself referenced the measure in its decision to strike down the Wisconsin map. Since then, the EG has been attacked from a number of different angles. I have no idea whether the Supreme Court will approve of the EG or even rely on it at all. But I can say that virtually every criticism of the EG fundamentally misunderstands what it does and was intended to do.

I invented the EG. I am not a legal scholar but a political scientist, so I developed it to be a measure: a means of systematically capturing a particular idea. I later joined forces with Nicholas Stephanopoulos, who is a legal scholar (and a very good one). (Stephanopoulos is also counsel to the challengers, but I am not working with him on this case.) We folded the EG into a possible legal test: a set of rules that clearly articulates how to weigh competing interests and principles in a wide range of situations so justice is as swift and certain as possible.

Measures and tests have different goals. A measure is effective if it reflects the essence of the idea it intends to capture and does so consistently across a wide range of circumstances. For that reason, measures benefit from precision. The more a measure is tailored to one specific concept, the more likely it is to capture that concept every time it is applied.

Legal tests are effective if they incorporate all the values and principles people care about, are clear about which should be preferred, and offer thresholds for action. For that reason, tests benefit from breadth. A test that fails to factor in all the relevant considerations will likely run into problems.

Because tests go broad and measures go narrow, a good legal test will probably end up measuring more than one thing. That does not make any of the individual measures it uses “wrong” any more than a thermometer is wrong because it tells you how hot the air is and not how hot you actually feel. (For the latter you likely need the relative humidity as well.) It simply means the test requires more than one measure to describe the complex constellation of things it cares about.

As a measure, the EG is very good at its job. It summarizes relative efficiency, one of the key mechanisms behind partisan advantage in a single-member-district system. In so doing, it satisfies what I call the “efficiency principle”: It confirms that a party that wins more seats without winning more votes is better off as a result. This principle may sound obvious, but many existing measures of partisan advantage fail to satisfy it consistently. The EG not only satisfies the efficiency principle, it does so in a wide range of contexts. It works for both competitive and uncompetitive states, with or without variation in district size or turnout, and ignoring or incorporating minor parties.

In short, the EG is excellent as a measure of efficiency. No argument I have seen disagrees with this basic point. Rather, the criticisms take one of three tacks: They question the EG’s implications, they assert it should measure more than one thing, or they implicitly or explicitly take issue with one legal test or another. The first two misunderstand what good measurement is supposed to do, while the last mistakenly assumes that disagreements with a test cast doubt on the measures it uses.

The first line of attack criticizes aspects of the EG that are not design features so much as implications of the concept it measures. For instance, many have said the EG is too volatile. It is true that there is rarely a single EG value for the life of a redistricting plan. But if one agrees that packing and cracking are important features of a gerrymander and that the EG measures them, then it is the advantage from packing and cracking that is volatile and the EG just reflects that. The EG’s volatility is a feature, not a bug: The courts should want any and all uncertainty front and center before they decide to intervene.

Likewise, many have taken issue with what the EG does not measure. It does not directly measure (among other things) majority party entrenchment, competitiveness, racial or ethnic minority representation, district shapes, the durability of any partisan advantage, or whether the redistricting authority intended to benefit either party when it drew the maps. But a good measure does not try to bite off more than it can chew. The more one freights a measure with multiple concepts, the less it measures any one of them effectively.

That is not to say the EG is useless for measuring some of these ideas. Durability can be estimated quite well by adjusting the election outcomes in plausible ways to see if a particular EG advantage survives. Any defensible assumptions about voter loyalty to parties can be built into this exercise. However, although such “sensitivity testing” uses the EG, it really amounts to a different measure – one that quantifies the potential volatility of a plan’s partisan advantage. Stephanopoulos and I have strongly advocated such testing to ensure that a particular EG value is not ephemeral.

Sensitivity testing can also explore majority entrenchment or competitiveness. But there are other measures that capture those ideas more directly, and a strong case can be made that those measures should be used for those concepts instead. Any remaining features of a redistricting plan should be identified, if at all, with other measures. Multiple measures are best for multiple concepts.

The final line of attack takes issue with any one of the specific legal tests that use the EG and pins any identified problems on the EG itself. An example is the test Stephanopoulos and I proposed, which says that if a plan’s EG is greater than eight percent (or two seats for congressional plans) and the sensitivity testing reveals a persistent advantage for one party, the burden shifts to the state to defend the plan as necessary for some other reason. If it cannot, the plan is struck down.

I like this test, but neither it nor any other is handed down on stone tablets. Reasonable people can disagree about specifics. In fact, Stephanopoulos and I explicitly left the details of ours open to future revision. Most importantly, decisions about legal tests have no bearing whatsoever on the quality of the measures employed. To dismiss the EG based on disagreements with the test sends baby and bathwater out the window together.

Once one accepts this distinction, many criticisms of the EG are revealed as complaints about tests in disguise. Take the claim that the EG advocates “super-proportionality” because it implies a 2-1 seats-to-votes ratio (i.e., a party should get an extra two percent of the seats for every one percent increase in vote share). This ratio itself is a mathematical implication of the measure and not a design feature, but regardless, it only constrains to the extent that it is strictly applied. If a party can instead enjoy an EG of eight percent in its favor (as Stephanopoulos and I suggested), a wide range of ratios becomes permissible. Even eight percent is just a suggestion: The Supreme Court can set the threshold as loosely as it wants, widening the potential range even more.

The same is true for claims that the EG will upend American elections. The disruptive potential is entirely a function of the test that is applied. A test that prioritized partisan fairness and offered little wiggle room around the ideal 2-1 ratio would have large effects; a test that prioritized other interests in redistricting and legitimized large EG values would have small ones.

Even the concerns about what the EG does not measure are really arguments about what a potential legal test should include. The Supreme Court might use the EG as one criterion for defining an unconstitutional gerrymander and then include others such as district shape, competitiveness, minority representation and the like – each with its own legitimate measure. In fact, the EG test Stephanopoulos and I proposed allowed for such a mixture of ideas (albeit after the EG was employed to identify a problematic case). The Supreme Court has a lot of flexibility.

At the end of the day, measures are tools. If well designed, they provide a consistent, systematic means of knowing how much one has of some specific thing. Whether that information is useful for governing is a matter of values and principles that a measure cannot resolve. The justices must decide for themselves what makes the most sense for the country. Whatever they decide, the EG can be a flexible and powerful tool for guiding their decision.

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Categories: Research

Friday round-up

Fri, 08/11/2017 - 07:19

At his eponymous blog, Lyle Denniston reports that in its first merits filing in the Supreme Court on the entry-ban cases, “[t]he Trump Administration, insisting that the presidential order limiting entry to the U.S. of foreign nationals from Mideast nations ‘is not a so-called “Muslim ban,”’ urged the Supreme Court on Thursday evening to throw [the cases] out without a decision.” Additional coverage of the government’s filing comes from Mica Rosenberg at Reuters and Richard Wolf at USA Today.


  • At Bloomberg BNA, Jordan Rubin reports that a pending cert petition that asks whether “cops in states that allow concealed carry [can] search you just because they think you’re armed” “pits a multi-time felon, five Republican state attorneys general, and a coalition of 10 conservative and gun rights groups against the Republican and vocally pro-gun-rights Trump administration” and “reveals deep tensions between gun rights and Fourth Amendment rights.”

  • At Minnesota Lawyer, Barbara Jones reports on a pending cert petition stemming from a challenge to Minnesota’s civil-commitment program for sex offenders; the case asks what “standard of review … should apply to substantive due process claims brought by the patients.”
  • At The Narrowest Grounds, Asher Steinberg argues that the court’s decision this term in National Labor Relations Board v. SW General, which limited the president’s power to fill executive-branch vacancies, exhibits “confusion about the role legislative history has to play in textualist interpretation.”
  • In an op-ed for The Hill, Tim Schultz draws a parallel between two high-profile cases on next term’s docket, the entry-ban case and the case of the custom-cake baker who refused to supply a cake for a same-sex wedding, arguing that both cases “will challenge our commitment to the First Amendment and our willingness to support its protections for those with whom we deeply disagree.”
  • At Supreme Court Brief (subscription required), Tony Mauro looks at the ethical concerns that may arise when prominent Supreme Court advocates, believing that “if justices or their clerks see ‘big name’ lawyers on the brief, they may think that in fact the case is important, will be well-argued, and should be granted review—a result that would be against the client’s interest,” “ghostwrite” briefs in opposition to certiorari.

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at]

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Categories: Research

Petition of the day

Thu, 08/10/2017 - 19:55

The petition of the day is:

Dahda v. United States 17-43

Issue: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

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Categories: Research

Symposium: A path through the thicket – the First Amendment right of association

Thu, 08/10/2017 - 14:12

Daniel P. Tokaji is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law.

A constitutional standard for partisan gerrymandering is the holy grail of election law. For decades, scholars and jurists have struggled to find a manageable standard for claims of excessive partisanship in drawing district lines. Most of these efforts have focused on the equal protection clause. But as Justice Anthony Kennedy suggested in Vieth v. Jubelirer, the First Amendment provides a firmer doctrinal basis for challenging partisan gerrymandering. An established line of precedent understands voting as a form of expressive association protected by the First Amendment. These cases offer a nuanced standard that would avoid the undesirable result of rendering any consideration of partisan consequences unconstitutional.

The right of expressive association

There is an obvious difficulty in relying on the First Amendment in partisan-gerrymandering cases: The Supreme Court has never considered voting a form of protected speech. It has, however, long recognized that voting is a form of protected association, at least in certain contexts. Before getting to those cases, it’s helpful to examine the roots of the right of expressive association.

The original associational-rights cases involved groups like the NAACP and the Communist Party that were extremely unpopular – one might even say persecuted – in many parts of the country. In NAACP v. Alabama ex rel. Patterson, for example, the Supreme Court invalidated a requirement that the NAACP disclose its membership list. Justice John Marshall Harlan II’s opinion for the court remarked that “the freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” In other words, expressive association is a necessary corollary of free speech.

The right of expressive association is closely linked to the First Amendment’s prohibition on content and viewpoint discrimination. As Justice Antonin Scalia put it in one of his last dissenting opinions, “the First Amendment is a kind of Equal Protection Clause for ideas.” It prohibits the government from abusing its authority to suppress disfavored points of view. Most importantly, it restricts the dominant political group’s authority to diminish the voices of those who might challenge their grip on power.

Thus, in the first generation of association cases, disfavored groups like the NAACP and the Communist Party relied on the First Amendment to prohibit the government from taking adverse action against them and their members. These cases rest partly on the individual liberty interest identified in NAACP v. Alabama. But they’re also grounded in a larger vision of how democracy should function.

A leading example is the line of patronage cases that began with Elrod v. Burns, in which the Supreme Court struck down the practice of firing public employees who weren’t members of the Democratic Party, which controlled Cook County, Illinois. After describing the harm to individual employees, the plurality turned to systemic concerns arising from this practice: “It is not only belief and association which are restricted where political patronage is the practice,” wrote Justice William Brennan. “The free functioning of the electoral process also suffers.” Discrimination against non-party members tended to “starve political opposition,” thus “tip[ping] the electoral process in favor of the incumbent party.” In other words, party-based discrimination distorts the political process, entrenching the dominant party in power while subordinating its chief rival.

Voting as association

Partisan gerrymandering effects a comparable systemic harm, albeit through a different mechanism. By manipulating district lines, the dominant party can entrench itself in power even when the political winds shift. The increasingly sophisticated technology that line-drawers have at their disposal exacerbates the problem. It allows the dominant party to capture a large percentage of seats while ensuring that its majority will hold in both bad times and good.

That’s true not only in Wisconsin, from which Gill v. Whitford emerges, but in other states that would be competitive but for gerrymandering. Take my own state of Ohio. Although Ohio is a consummate purple state in presidential elections, Republican mapmakers drew lines there in 2011 that give their party a supermajority of districts – three-quarters of the state’s congressional delegation and roughly two-thirds of its state legislative districts. These districts were drawn with the goal of creating a firewall that would ensure Republican control even in a strong Democratic year. And they’ve been a spectacular success, ensuring Republican control of the Ohio state legislature throughout the current decade. Because they diminish the power of the non-dominant party in a manner that’s both substantial and enduring, excessive partisan gerrymanders violate the right of expressive association.

Still, one might argue that compelled disclosure and patronage are very different from redistricting. In the original association cases, particular individuals were harmed – discouraged from or punished for affiliating with disfavored groups. Moreover, those cases don’t directly involve voting. It’s a leap, one might argue, to hold that the right of association is implicated when voters, candidates and parties associate through the electoral process.

As it turns out, the Supreme Court made this leap long ago. For almost a half-century, the court has recognized that voting is a form of association protected by the First Amendment. The first voting-as-association case was Williams v. Rhodes, which challenged Ohio’s ballot-access requirements for new political parties like George Wallace’s American Independent Party. Justice Hugo Black’s opinion for the court relied on both the First Amendment right of association and equal protection to strike down this requirement. Ohio’s onerous rules for adding new parties to the ballot gave “the two old, established parties a decided advantage … plac[ing] substantially unequal burdens on both the right to vote and the right to associate.” In Williams, the Supreme Court thus stressed the risk of dominant parties using voting rules to entrench themselves in power, thereby harming non-dominant parties and their supporters.

Several years later, in Anderson v. Celebrezze, the Supreme Court again relied on the right of association to invalidate another ballot-access rule in Ohio, this time one that would have kept John Anderson from running as an independent presidential candidate in 1980. Justice John Paul Stevens’ opinion for the majority recognized that there’s no “litmus-paper test” to separate valid and invalid restrictions on voting and association. Rather, the court should weigh the “character and magnitude” of the burden on voting and association against the state’s asserted interests. Although “reasonable, nondiscriminatory restrictions” can usually be justified by important regulatory interests, a stronger justification is required for more serious burdens, including ones that discriminate against outsider candidates and their supporters.

A subsequent case involving write-in voting in Hawaii, Burdick v. Takushi, reaffirmed Anderson’s “flexible” standard while clarifying that strict scrutiny applies only if the burden on voting and association is “severe.” Other cases like Tashjian v. Republican Party of Connecticut and Washington State Grange v. Washington Republican Party apply this standard to electoral rules that burden the associational rights of major parties and their adherents. The Anderson-Burdick balancing test is now used in constitutional challenges to a wide variety of election laws, including ballot access, blanket primaries and even voter ID. What’s not commonly recognized is that this legal standard originated in voting-as-association cases.

Applying the voting-as-association standard

It’s true that the Supreme Court hasn’t yet applied the Anderson-Burdick standard to partisan gerrymandering. In fact, the court has been maddeningly unclear about what legal standard should apply in these cases. But for several reasons, the standard emerging from the voting-as-association cases provides the best fit for evaluating partisan gerrymandering claims.

The first is that the First Amendment right of association best captures the type of injury alleged, specifically the lasting harm to non-dominant political parties and their adherents arising from the dominant party’s self-entrenchment. Expressive-association cases have long focused on such harms, not only to the non-dominant party but to our political system. By contrast, equal protection law doesn’t accord any special status to political party affiliation. Unlike race or sex, party affiliation isn’t a protected class under the equal protection clause.

The second advantage of relying on the established voting-as-association standard is that it focuses on effects rather than intent. Recall that the Anderson-Burdick standard requires courts to weigh the “character and magnitude” of the burden on voting and association against the state’s asserted interests. An intent to harm the non-dominant party may be relevant, but it isn’t required. That’s a good thing, because intent is notoriously hard to prove or disprove, especially in redistricting cases. The Shaw v. Reno line of racial-gerrymandering cases exemplifies this difficulty. Under those cases, the pivotal question is whether race was the “predominant factor” in drawing a particular district. Twenty-four years after Shaw, the Supreme Court is still struggling to explain what this means. An effect-based test is preferable. Though Anderson-Burdick is hardly a bright-line rule, its balancing standard has proven manageable in other voting contexts and can be adapted to partisan-gerrymandering claims.

This brings me to a third advantage of relying on the voting-as-association cases to assess partisan gerrymandering claims: It provides a nuanced legal standard. The Anderson-Burdick balancing approach would allow lower courts to sort through the evidence, striking down the most egregious and unjustified partisan gerrymanders without categorically prohibiting any consideration of party affiliation when drawing districts. Of course, partisan-gerrymandering claims demand hard judgments. There are no bright lines here. But the legal standard that the Supreme Court has long used in voting-as-association cases provides the best fit for partisan-gerrymandering cases like Gill v. Whitford.

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Categories: Research

Symposium: Gill v. Whitford as bad theater

Thu, 08/10/2017 - 10:33

Tyler Green is the solicitor general of Utah. Utah is one of 16 states that joined a merits-stage amicus curiae brief by the state of Texas in support of the appellants defending Wisconsin’s electoral map.

Attorneys who advise state elected officials need no crystal ball to see what an affirmance in Gill v. Whitford would mean for their clients. …


A Play in Three Acts

Cast of Characters

Speaker of the Utah House: A woman in her early 50s; a recovering lawyer.

President of the Utah Senate: A man in his mid-60s; a retired medical doctor.

Legislative Counsel: A woman in her late 40s.


The Utah State Capitol.


Early 2021, after the U.S. Census Bureau releases the 2020 census results.


Scene 1

SETTING:      We are in a large conference room at the capitol. Stacks of paper cover the main table. Foamboard charts rest on easels and against the walls. Beverages and a box of doughnuts sit on a side table.

AT RISE:        LEGISLATIVE COUNSEL sits at the main table’s long side, facing the room’s door (which is closed). She alternately checks her watch and responds to texts or emails on her cell phone. COUNSEL raises her head as the SPEAKER OF THE HOUSE and the PRESIDENT OF THE SENATE open the door and enter.


Good morning. Sorry we’re late—again.


(She stands and shakes hands with the SPEAKER and the PRESIDENT.)

No problem. I just got the text that your caucus meeting ran long.


Yes. We moved through the caucus agenda as fast as we could, but the members had lots of questions about the redistricting process.


I understand.

(She motions to the side table.)

Snacks or a drink?


Thanks. I need a blood-sugar boost after that meeting.

(All three walk to the side table and take turns getting doughnuts and drinks.)


(She talks while getting food and walking to her seat at the main table.)

Picking up where the president left off—one of the first questions at caucus was how we’re going to start drawing new boundaries. Some members suggested tweaking the current map based on the 2020 data. But other members said we can’t do that because of a new Supreme Court case. Are they right?


(Returning to her seat, food in hand.)

I’m afraid so. Actually, it’s a 2018 case called Gill v. Whitford. This is the first time we’ve redistricted since then.


(Seated at the table.)

The court said we can’t use our old map?


Well, the court didn’t expressly prohibit states from basing new boundaries on old ones. But in a state like Utah, the opinion unquestionably has that effect—we have to start from scratch.


What’s wrong with our current map’s boundaries?


They produce too many Republican legislators.


(With his mouth full of doughnut.)

Say again?


It’s true. Under the court’s opinion, the new boundaries must give more legislative seats to Democrats.


How can the court tell states the “correct” number of legislative seats for each political party? I thought elections did that.


You’d think so, right? “Au contraire,” says the court.

(She hands papers to the SPEAKER and the PRESIDENT.)

It’s actually a little complicated. Here are copies of the opinion. I’ve highlighted the key parts.


(Drops papers on table.)

After that caucus, I can’t handle this lawyer-speak. What’s the punchline? How could the court have reached this result?


Here’s the quick version. In 2011, Wisconsin’s legislature drew new districts based on the 2010 census. After the 2012 and 2014 elections, the Democratic Party in Wisconsin was mad because its candidates won fewer of the new districts than the party thought they deserved based on the number of statewide votes for Democrats.


So this is a proportionality issue—the idea that if a political party gets 40 percent of statewide votes for legislative candidates, it should win a corresponding 40 percent of legislative seats.


Correct. But things didn’t pan out that way for Wisconsin’s Democrats. In 2012, Republicans won 60 of 99 seats in the Wisconsin State Assembly with 48.6 percent of the statewide two-party vote. And in 2014, Republicans won 63 of 99 seats with 52 percent of the statewide vote. Seeing those results, some Democrats in Wisconsin sued. A federal district court declared Wisconsin’s new district boundaries unconstitutional. The Supreme Court agreed.


Unconstitutional on what basis?


The court said the election results in the new districts violated the Democratic Party’s rights under the equal protection clause.


Hold on. The political party’s right to equal protection? Doesn’t the equal protection clause protect the rights of individuals—not the rights of groups?


That’s exactly what prior Supreme Court redistricting cases said. It’s one reason Gill is such a sea change: It’s the first redistricting case extending equal protection rights to a group.


Do other groups—such as groups of racial minorities—also now have those same equal protection rights in redistricting cases?


No. At least, not yet. Race-based claims weren’t raised in Gill.


So political parties—groups that exist to win executive or legislative seats from voters in elections—now have a constitutional right to get a certain number of legislative seats in court from a federal judge? And groups of racial minorities don’t have that right?


Correct on both counts. The opinion also makes redistricting challenges easier. Before Gill, a plaintiff claiming that a new district violated his equal protection rights could challenge only his individual district. But Gill allowed the plaintiffs to challenge the entire statewide plan.


Did the Supreme Court realize the incentives it created by allowing challenges to a state’s entire redistricting plan? Or how much more expensive it will be for states to defend those bigger lawsuits? Or the potential for plaintiffs to frame claims of race-based discrimination as political discrimination to take advantage of those new rules?


No one knows; we don’t get to ask the Supreme Court questions. But Gill certainly increases the burdens and risks to states from redistricting lawsuits. The statutory right to attorney’s fees for successful claims won’t be lost on potential plaintiffs, either.


But just because someone can file a lawsuit doesn’t mean they will win. How easy will it be for plaintiffs to win on these claims?


In general, a plaintiff wins an equal protection claim by showing that the state treated him differently for an invidious or irrational purpose—and that the differential treatment had a discriminatory effect.


What’s the alleged invidious purpose here? That the state invidiously discriminates against a political party by drawing district boundaries that deprive it of political power?




But legislatures have done that since … forever!


I know. The court called this a “political gerrymandering” claim, but that phrase itself is redundant. The 1886 version of Webster’s dictionary defines gerrymandering as drawing district lines “with a view to give a political party an advantage over its opponent.” This isn’t a new phenomenon.


So why is it now a constitutional problem?


I don’t know. In fact, a prior Supreme Court case called Vieth v. Jubelirer arguably held that political-gerrymandering claims don’t exist. But Vieth was messy—multiple opinions, and no clear majority—so the Gill majority worked around it.


Wait a minute. Other redistricting rules really restrain our ability to draw boundaries that benefit one political party. We have to comply with the Supreme Court’s “one-person, one-vote” rule. Districts must meet compactness and contiguity requirements. And we try to keep political subdivisions in the same district. Did Gill get rid of those rules?


No. We still must follow them. But political gerrymandering is now actionable.


So new boundaries can’t favor a political party. And we must follow the old rules. But now we expressly consider the likely partisan electoral outcome in each new proposed district—to make sure that each party’s number of seats aligns with its percentage of the statewide vote?



As best I can tell.


How close a match does the Constitution require? Suppose we predict that a political party will get 40 percent of the statewide vote. So we draw a map that should give its candidates 40 percent of the seats. But, unexpectedly, the political party wins 45 percent of the statewide vote—and wins only its expected 40 percent of the seats. Or the party gets its expected 40 percent of the vote, but only 33 percent of the seats. Constitutional problems?


Gill really doesn’t say.


So our message to the caucus is: We have to draw boundaries that give more seats to our political opponents. Yet we can’t know in advance if we’re giving them enough seats—or even how they can successfully challenge the new map. And if a challenge does succeed, a federal judge might award them seats they didn’t win at election.




(Looking at the SPEAKER.)

Remind me who said courts were the “least dangerous branch”?




Act II: Lawsuits, Inevitably

Act III: Judges Draw Overtly Partisan Boundaries

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Categories: Research