Challengers to the maps, a group of Democratic voters, said gerrymandering is getting more extreme due to increasingly precise voter data and mapmaking technology, leaving voters with no recourse but the courts.
Paul Smith, the same lawyer who failed to get Kennedy's vote and thus a majority 13 years ago, is again urging the court to rein in partisan gerrymandering, or drawing districts for partisan gain. In the Vieth case, Kennedy issued a concurring opinion, endorsing the Court's decision but not its insistence that the Court could never devise a "workable standard" for determining abuse in partisan gerrymandering. The plaintiffs in the case are average Wisconsin citizens who believe deeply in democracy and believe that the right to vote is a right worth fighting for. "Suppose ... the court found this is a First Amendment issue, not en equal protection issue?"
Kennedy questioned only the lawyers for the state of Wisconsin, rather than the plaintiffs.
But Murphy and Tseytlin told the justices that disparities in political representation among legislative districts can be explained a number of ways, including choices made by voters of where to live, and that using a statistical test would result in more legal challenges across the country - challenges not only to the district boundaries but to the legitimacy of the statistical test.
People on both sides of the case widely anticipate that the four liberal justices will side with the voters who sued.
The case originated in the U.S. District Court for the Western District of Wisconsin. But employee advocates say workplaces are different because of a federal labor law that gives employees the right to engage in "concerted activities" - a guarantee some judges have said includes class actions. The issue is now being revisited at a Supreme Court level in Gill v. Whitford, a case that began in a Wisconsin lower court.
Tuesday the Supreme Court takes up what may be the most important case of its new term, in which they will answer the question: Just how far can the Republican Party go in its assault on democracy?
After winning control of the state legislature in 2010, Wisconsin Republicans redrew the maps for the state assembly to their considerable benefit. A majority of residents in the state voted Democrat, but Democrat candidates only got 39 seats. This redistricting typically is carried out by the party that controls the state legislature. While todays Democrats have undertaken some gerrymandering (most notably in Maryland), Republicans have been more shameless about it, particularly in states like Pennsylvania, Michigan, and Florida.
In the 2012 election, Republicans won 47 percent of the vote but 60 of 99 seats in the Wisconsin Assembly. Democrat voters challenged the voter districts that Republican lawmakers drew in 2011, arguing they crossed a constitutional line in manipulating maps for Republican advantage.
"You wouldn't be doing employees much of an advantage", Kennedy said.
At the U.S. Court of Appeals for the 6th Circuit, the Justice Department argued the OH law violates a 1993 national voter registration law and the way the DOJ has interpreted it since 1994.
Hans von Spakovsky, with the conservative Heritage Foundation, said, "I think it could be the biggest redistricting case since the early 1960s".
In a previous case, in 2003, the Supreme Court ruled that immigrants facing deportation may "be detained for the brief period" required to resolve their cases. We will have to decide whether the Democrats or Republicans win ... But even some of those who agree have said redistricting is a political question between representatives and their constituents, and the courts should stay out. He proposed a hypothetical standard that would only consider maps drawn when one party has control of state government.
"I suspect that that's manageable", Breyer said.
All of that was true in Wisconsin, said Justice Sonia Sotomayor.
The Supreme Court has acknowledged since 1986 that the partisan map-making process can appear unfair. It pointed out, "The rights at stake in this case are as critical as ever given the Trump administration's pledge to lock up even more people as part of its crackdown on immigrant communities". "If it was the most extreme map they could make, why isn't that enough to prove...unconstitutional gerrymandering?"
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