Opportunity for Justices on Partisan Gerrymandering

      Wisconsin Republicans gained control of the state legislature and the governor's office in 2010 for the first time in 40 years and then set about drawing up legislative districts to secure a Republican majority for the rest of the decade. As the legislature was about to act, an aide to the Senate's Republican leader told the GOP caucus they had "an opportunity and an obligation to draw these maps that Republicans haven’t had in decades."

      The legislative districts have now been found by a federal court to have been designed to benefit Republicans and to have had that intended effect. That much is obvious from election statistics. Republicans drew 48.6 percent of the votes cast for Assembly candidates in 2012 but won 60 of the chamber's 99 seats. Two years later, Republicans won 63 Assembly seats with 52 percent of the statewide vote.

      Democratic voters challenging the redistricting have now won a split ruling from a three-judge federal district court that the redistricting amounts to an unconstitutional political gerrymander. The new map was "intended to burden the representational rights of Democratic voters throughout  the decennial period by impeding their ability to translate their votes into legislative seats," Judge Kenneth Ripple wrote for the court.

      Both the plaintiffs and the court faced the difficulty that up till now the Supreme Court has failed to find a basis to decide when partisan gerrymandering goes too far. In three decisions over the span of 20 years, the court has recognized constitutional claims against political gerrymandering but upheld each of the challenged plans for lack of any agreed-on standard to apply.

      To remedy that gap, the plaintiffs secured the services of an experienced election law litigator now at the University of Chicago Law School. Nicholas Stephanopoulos, just granted tenure at Chicago after several years previously at the Washington law firm Jenner & Block, believes that he and an academic colleague have found the silver bullet needed to establish a legal limit on partisan manipulation in redistricting.

       The answer proposed in a law journal article by Stephanopoulos and his coauthor, the California political scientist Eric McGhee, is appealingly straightforward. They created a quantifiable datum — they call it the "efficiency gap" — to compare how efficiently the respective political parties use their voters to win legislative seats.

      In brief, think of the winning party's margin of victory in any district beyond a one-vote plurality as "wasted" votes -- more than needed to win the seat. Votes cast for a losing candidate are wasted by the other party. Add up all the wasted votes — either "surplus" votes or "lost" votes — for each party, calculate the difference, and divide by the total number of votes cast. A low figure, say 2 percent, indicates a district map of relative partisan fairness, but Stephanopoulos and McGhee argue that a figure above some threshold — they suggest 8 percent — goes too far and ought to be deemed unfair enough for a court to rule the redistricting plan presumptively invalid. Based on this measure, they say partisan gerrymandering is worse now than ever in the elections they studied.

      Stephanopoulos and McGhee argued that their test was better than what has been called the "partisan symmetry" test. Under that approach, a redistricting plan survives challenge as a partisan gerrymander politically if each party would win the same number of legislative seats for a particular vote percentage as the other party would win if it had received the same percentage of the vote.

      Five justices indicated support for this approach in the most recent decision, Latin American League of United Citizens v. Perry (2006), but in the main opinion Justice Anthony M. Kennedy said the plaintiffs had offered no way to measure how much asymmetry was too much. Stephanopoulos and McGhee say their approach has the advantage of using actual election data instead of a hypothetical election and they go one step further by suggesting a threshold to define how much is too much.

       The majority judges in the Wisconsin case were convinced that the 11.69 percent efficiency gap was too much. Lawyers for the state argued that the Republicans' advantage stemmed from political geography: Democrats are concentrated in urban areas — so more "surplus votes" — while Republicans are dispersed more widely in suburban and rural areas. In his opinion, Ripple, a senior circuit judge appointed by President Ronald Reagan in 1985, acknowledged the point but said it gave Republicans only "a modest advantage," not the lopsided edge they achieved with the maps being challenged.

      The two other judges split along partisan lines. Barbara Crabb, a senior judge named by President Jimmy Carter in 1979, joined Ripple's opinion, while William Griesbach, named by President George W. Bush in 2002, dissented. In his dissent, Griesbach argued that the efficiency gap "oversimplifies political injury," but he appeared to offer no alternate approach.

      Stephanopoulos got the unusual opportunity for a professor to put his academic theory into practice after a fellow election law scholar referred him to the Wisconsin plaintiffs to represent them. The state plans to appeal the ruling to the Supreme Court. Stephanopoulos welcomes the chance. The case, he says, would give the Supreme Court "a golden opportunity to put a stop to one of the most pernicious and undemocratic practices in American politics today." As always, court watchers will be watching Kennedy, but the case is unlikely to reach the justices before next fall.

With Sessions as AG, a Setback for "Lady Justice"

      A lawyer with the U.S. solicitor general’s office will stand before the U.S. Supreme Court next month in support of voting rights for African Americans in Virginia legislative districting. On behalf of the U.S. government, the lawyer will back the argument by minority voters that Virginia is violating the Voting Rights Act and the Constitution by packing African American voters into a dozen legislative districts in the Richmond area instead of dispersing them more widely to increase their overall political influence.
      The Justice Department has played an important role for most of the past 60-plus years in supporting long overdue moves toward racial justice. The government’s role was never more important than in 1953 when a new Republican attorney general decided to support the NAACP Legal Defense Fund’s plea for the Supreme Court to rule racial segregation in public education unconstitutional.
      The Justice Department has proved less supportive of racial justice in later Republican administrations on such issues as desegregation, affirmative action, and voting rights. But now President-elect Donald Trump has chosen as his attorney general an Alabama senator with a record of racially insensitive comments and overt opposition to laws and policies aimed at promoting the cause of justice.
      Based on Sessions’ views, the Justice Department under his leadership seems likely to do little to advance civil rights for minorities or women. Sessions’ statements suggest he will prefer voter suppression to voting rights, will ease federal oversight of racial profiling by local police departments, and will shelve efforts to advance LGBT rights. And a Sessions Justice Department seems very unlikely to promote diversity in new appointments to the federal bench, following the Obama administration’s record-setting numbers of women, minorities, and LGBT individuals to the federal courts.
      Trump’s nomination of Alabama’s Jeff Sessions promises to provoke a fierce confirmation fight that will test Democrats’ determination to hold Trump accountable if he converts divisive campaign rhetoric into divisive government policy. It will also test whether Republican senators, whether or not they supported Trump’s election, will go along when he picks people from the party’s incendiary wing for top-level positions in the new administration.
      Thirty years ago, Sessions suffered what is still for him a grievously embarrassing snub when the Senate Judiciary Committee rejected President Ronald Reagan’s nomination of him for a federal court judgeship in his home state of Alabama. With a Republican majority, the committee voted 10-8 to reject the nomination because of testimony about Sessions’ racially insensitive remarks while U.S. attorney in Alabama. Sessions was quoted as having described a white lawyer litigating a voting rights case as “a disgrace to his race” and as having called the ACLU and the NAACP “un-American” and “communist-inspired” because they “forced civil rights down the throats of people.”
      Sessions tried to discount or deny the accusations. “I am not a racist,” he told the committee back in June 1986. “I am not insensitive to blacks.” He pooh-poohed the slurs on the ACLU and NAACP. “I meant no harm,” he told the committee.
      Two moderate Republicans — Maryland’s Charles Mac Mathias and Pennsylvania’s Arlen Specter — joined the committee’s eight Democrats in voting to reject the nomination. With Specter changing his vote, the committee then deadlocked 9-9 on a motion to send the nomination to the floor anyway but without a recommendation. Alabama’s Democratic senator Howell Heflin was seen as casting the decisive vote to kill the nomination. He said there were “reasonable doubts” about Sessions’ ability to be “fair and impartial.
      Sessions went on to win election as state attorney general and then in 1996 as U.S. senator. He joined the Judiciary Committee and is reported to view his service as member and now chairman as vindication of sorts for the earlier setback at the committee’s hands.
      The new nomination is Trump’s payback for Sessions’ having been the first senator, in February, to endorse Trump’s candidacy. Trump made no announcement, but he surely is impressed by Sessions’ fiercely anti-immigrant stances. Civil rights groups immediately exploded in fierce opposition to the nomination and cited a host of other actions or statements by Sessions.
      The Lawyers Committee on Civil Rights noted that Sessions had called the federal Voting Rights Act “intrusive” and had celebrated the Supreme Court’s decision in 2013 to nullify the law’s critical preclearance provision. The Human Rights Campaign pointed to Sessions’ zero voting record on LGBT rights, including his votes against repeal of “don’t ask, don’t tell” and his opposition to the bill to prohibit anti-LGBT discrimination in the workplace. He also opposed the Supreme Court’s marriage equality decision. When asked about the possibility of a gay Supreme Court justice, Sessions replied that the appointment would be “a big concern.”
      Two Democratic administrations—Clinton’s and Obama’s—made extensive use of the 1993 law allowing the Justice Department to sue police departments for “policies and practices” that violate minorities’ constitutional rights. The Obama administration moves have been important in answering the demands for racial justice from, among others, the “Black Lives Matter” movement. Sessions is unimpressed. “It is clear,” he remarked “that police officers all over America are concerned” about those moves.
      The Justice Department’s shield proclaims, in Latin, that its lawyers “prosecute in the name of Lady Justice.” If Sessions is confirmed, he will come to office with strong doubts about his commitment to that lofty ideal.

Holding Banks to Account for Foreclosure Crisis

      For all its legal firepower, the federal government has precious little to show for its efforts to hold the nation’s banks accountable for all the harm they did in causing the Great Recession of 2008-09. A few dozen executives from mid-level banks have gone to prison, yes, but the top-ranking executives from the “too big to fail” banks all escaped prosecution even as their companies agreed to pay billions in civil fines for improper foreclosure practices.
      Several of the nation’s big cities, however, have been trying to hold banks responsible for the harm inflicted in particular on African American and Latino neighborhoods with predatory lending targeted to minority home buyers. Now, the Supreme Court is set to decide whether cities have the legal standing needed to collect millions of dollars in damages from the banks for racial discrimination in violation of the federal Fair Housing Act.
      The justices’ questions during the hour-long arguments in Bank of America v. City of Miami on Tuesday [Nov. 8] seemed to indicate a ruling to green-light Miami’s suits against two of the nation’s biggest banks: Bank of America and Wells Fargo. Three Supreme Court decisions dating from the 1970s allow suits under the Fair Housing Act not only by would-be home buyers or renters but also by neighbors who are denied the benefits of interracial associations or by municipalities that are robbed of “racial balance and stability,” as the court put it in Gladstone, Realtors v. Village of Bellwood (1979).
      The court’s liberals seemed comfortable with applying those precedents to allow Miami to proceed with its suits despite concerns from two justices, Chief Justice John G. Roberts and Justice Anthony M. Kennedy, about how to limit the scope of the banks’ potential liability. The federal appeals court for Florida ruled in favor of the city’s suit, so the city would win even if the eight-justice Supreme Court were to split 4-4.
      The city of Miami, along with its neighboring municipalities in South Florida, was one of the epicenters of the foreclosure crisis that helped take the nation into recession. At the height of the crisis, South Florida had 172,894 homes in some stage of foreclosure in 2009. The worst of the crisis has passed, but South Florida was still ranked fifth highest in foreclosures last year among the nation’s metropolitan areas.
      Foreclosures need to be understood as more than personal setbacks for the forced-from-their-home homeowners. They are also disasters for neighborhoods left with the blight of empty, boarded-up houses and for municipalities deprived of property tax revenues and burdened with increased costs of law enforcement and social services.
      In its complaints against the banks, filed in December 2013, the city sought to show that the foreclosures resulted not from natural economic causes but from deliberate business strategies adopted by the banks. Backed up by affidavits from confidential bank employee witnesses, the city alleged that the banks targeted minority borrowers for discriminatory, high-cost loans that included terms likely to prove unaffordable. The banks then induced foreclosures by refusing to refinance the loans on fair and affordable terms.
      Loan officers got bonuses for writing loans that the city characterized in its complaints as “predatory.” Those loans included features such as interest rates at least three percentage points above the federal benchmark, interest-only loans, balloon loan payments, loans with prepayment penalties, and adjustable mortgages with “teaser rates” that increased by more than 6 percent over the life of the loan. The city alleged that minority borrowers were more likely to be offered these kinds of loans than white borrowers with equal creditworthiness: one-and-a-half times more likely for Bank of America, more than four times more likely for Wells Fargo. .
      The city used statistical studies to show that the results were just as could have been predicted: foreclosures by the taken-advantage-of minority borrowers. For Bank of America, nearly one-third of its loans to minority borrowers (32.8 percent) resulted in foreclosures but only 7.7 percent of its loans in predominantly white neighborhoods. For Wells Fargo, 24 percent of its loans to minority borrowers resulted in foreclosures, roughly 4 percent for white borrowers.
      The banks have yet to answer these allegations in detail because they have sought to dismiss the suits altogether as unwarranted extensions of the legal standing doctrines recognized in the Supreme Court precedents. The federal district court judge hearing the case agreed with the banks, but the Eleventh U.S. Circuit Court of Appeals reversed his decisions in emphatic, unanimous decisions in the two cases.
      At the Supreme Court, former acting solicitor general Neal Katyal represented the banks by warning against an “unlimited theory of liability” that would award compensation for harms “several steps removed” from the alleged discriminatory conduct. Representing the city, Robert Peck, president and founder of the private Center for Constitutional Litigation in Washington, forcefully countered that the banks’ policies had caused it to lose the “benefits . . . that come with an integrated community free from housing discrimination.”
      A legal ruling for the city would do no more than set the stage for a trial, where it would have to prove its allegations and connect its injuries to the banks’ policies. Millions of dollars from the banks would go only so far in undoing the damage the city has suffered, but it would be a significant victory for corporate accountability and racial justice.

Trump's Win Saves High Court's Conservative Majority

      The Supreme Court’s generally conservative orientation is safe for the next four years and probably longer. That is the upshot of Donald Trump’s stunning upset victory in the presidential election for the third branch of the federal government, with the other two branches also in Republican control.
      Democrats’ hopes for a liberal majority on the Supreme Court were dashed. Worse, the Democrats’ basic premise that Republicans would pay a price for obstructing President Obama’s nomination of veteran federal appeals court judge Merrick Garland for the high court was proven to be wrong, flatly wrong.
      For eight months, Democrats and their liberal and progressive allies had rallied in Washington and in state capitals around the country chanting to Republican senators, “Just do your job.” On Tuesday, however, only two incumbent Republican senators were defeated, including one, Illinois’s Mark Kirk, who had favored a hearing and vote on the Garland nomination.
      Among the other Republicans targeted in the campaign, New Hampshire’s Kelly Ayotte appears to have been defeated by Democrat Maggie Hassan by a razor-thin margin of 700 votes. But Pennsylvania’s Patrick Toomey and North Carolina’s Richard Burr, among others, won re-election handily as their battleground states went into the Trump column.
      Meanwhile, exit polls indicated that Supreme Court appointments were a more important factor in the presidential election than in either 2008 or 2012 and were somewhat more important for Trump voters than for those voting for Hillary Clinton. The “Supreme Court important” voters appear to have split almost 3-to-2 for Trump.
      Americans born since 1969 have never known a Supreme Court with a majority of liberal justices. Admittedly, Warren Court holdovers helped provide the crucial votes for two final bursts of liberal activism: the 1972 decision to abolish capital punishment and the 1973 abortion rights decision, Roe v. Wade.
      Republican-appointed moderates helped forge the majorities in those two cases, but conservatives gradually gained their footing in the 1970s and then solidified their control with new appointments in the 1980s. The court has moved to the right under three successive Republican-appointed chief justices: Warren E. Burger, William H. Rehnquist, and, now, in his 11th term, John G. Roberts Jr. The court’s jurisprudence has shifted to the right on an array of issues, including abortion regulations, affirmative action, church-state relations, consumer and worker rights, criminal law, and states’ rights vis-à-vis the federal government.
      True conservative activists view this history differently as one of successive defeats and disappointments. Among many examples, they cite as the most grievous the two Roberts Court decisions upholding the Affordable Care Act, with Roberts in the majority, and the 5-4 decision recognizing marriage equality for same-sex couples, with the moderate Republican Anthony M. Kennedy providing the critical fifth vote.
      The court would have tipped somewhat to the left if Garland, a moderate liberal in 19 years on the D.C. Circuit, had won confirmation to succeed the conservative lion Antonin Scalia after his death in February. But on the very day of Scalia’s death, Senate Majority Leader Mitch McConnell audaciously vowed to hold the vacancy open until after the presidential election.
      McConnell’s tactic succeeded, and sets an ominous precedent for the next time a Supreme Court vacancy occurs with the White House and Senate in opposite political hands. Despite a somewhat narrowed 52-48 majority, Republicans still control the Senate for the next two years. And Democrats will be challenged just to hold ground in 2018 as they will be defending 25 Senate seats compared to only eight for Republicans.
      Trump released a list of potential Supreme Court nominees back in May, at a time when many conservatives doubted his ideological bona fides. The list, later expanded to 20 but now pulled from Trump's web site, consisted of Republican-appointed judges from federal or state courts, all of them regarded by court watchers as fairly reliable conservatives.
      The eight federal circuit court judges on the list include, for example, the Tenth Circuit’s Timothy Tymkovich, who wrote that court’s 5-3 decision in the Hobby Lobby case allowing religiously-motivated private employers to get out of the Obamacare’s contraception mandate. The oldest of the group at age 60, the Coloradan Tymkovich might be passed over for someone younger who could be counted on to serve for a quarter-century or longer.
      Among nine state supreme court justices, Texas’s Don Willett is the most visible, thanks to the libertarian persona he projects through his judicial opinions and his popular Twitter account. Other state justices include Michigan’s Joan Larsen, an ex-Scalia law clerk who spoke at a memorial for the late justice in Washington in the spring.
      Before Trump’s upset victory, political Washington was speculating whether he might win lame-duck confirmation to guard against the risk of Hillary Clinton’s picking a more liberal justice if elected. With that contingency off the table, Garland is now likely to go down in history as the most qualified Supreme Court nominee in history never to win confirmation.
      Even with a Trump justice to fill the vacancy, the new president will fall short of the goal he laid out in the campaign to try to overturn the marriage equality and abortion rights decisions. With four liberal justices and Kennedy, those precedents are safe for now. And the liberal justices Ruth Bader Ginsburg and Stephen G. Breyer will surely defer any thoughts of possible retirement. And, as a postscript, the state votes on Tuesday in favor of the death penalty in California, Nebraska, and Oklahoma make it extremely unlikely that Kennedy will lend his vote to outlawing capital punishment altogether.

Healing Needed as National Nightmare Nears an End

      Our long national nightmare is nearly over. The most divisive presidential contest since the 1860 campaign that literally broke the nation apart comes to an end on Tuesday (Nov. 8). By the end of Election Day, more than 125 million Americans will have cast votes in a race between a seasoned politician with feet of clay and a bombastic businessman and reality TV star with a heart and soul of pure darkness.
      Donald Trump lacks any of the basic qualifications to be president of the United States: he has no experience in public office or political campaigns and no previous serious engagement in public policy issues. And yet Republican voters chose him as the nominee of the party that gave us such presidents as Abraham Lincoln, Theodore Roosevelt, Dwight Eisenhower, and Ronald Reagan.
      Trump’s total lack of qualifications pales in comparison to his total lack of any of the character traits that one would look for in any public servant, such as scrupulous honesty, reasoned judgment, and selfless regard for the welfare of others. But Trump has so poisoned this presidential campaign that substantial numbers of Americans tell pollsters that they will be voting for him even though they deem him unqualified for the position.
      Hillary Clinton meets the major criteria — experience, knowledge, and character — but leaves many voters either unimpressed or uncomfortable. From her earliest days in the White House, as the head of a health care reform task force, Clinton has shown an aversion to transparency. Unfortunately for her campaign, she highlighted that character trait by using a private email server while secretary of state. In smaller numbers than for Trump, pollsters find some voters who will plan to cast ballots for Clinton but without completely trusting her.
      The life stories of these two popularity-challenged rivals are a study in contrasts. The daughter of middle-class parents, Clinton excelled at elite Wellesley College and Yale Law School and then devoted herself to public advocacy for children’s welfare. Trump was the spoiled brat of a millionaire developer who went into business with a “small” million-dollar loan from his father and set about enriching himself by, among other things, discriminating against minorities in rental apartments.
      Clinton married once, victimized to an extent by a sometimes unfaithful husband who, like her, saw political life as an honorable profession. Trump married three times and was himself a boastful womanizer who treated women in word and deed with an utter lack of respect.
      Out of office, Clinton earned big bucks by giving speeches to private companies and organizations or foreign groups that could afford to pay six-figure honoraria to the wife of a former president and a would-be president herself. When some of those speeches surfaced, despite Clinton’s non-disclosure, it was revealed that Clinton sometimes sounded different in private than in public. That revelation was shocking only to the politically naïve.
      Compared with this peccadillo, Trump’s capacity for dishonesty and deceit is as a mountain to a molehill. His record of business dealings includes hiring undocumented workers, stiffing contractors, and exaggerating his wealth to boost the value of his brand while low-balling the worth of his holdings for tax authorities to keep his taxes low.
      As to taxes, Trump is now the first presidential candidate in 40 years to refuse to disclose his income tax returns. After a lot of digging, the New York Times was handed a document that forced Trump to admit that he has paid no federal income taxes for a number of years. Two tax officials from President George H.W. Bush’s administration have shown that Trump also may have avoided Medicare taxes through the years by paying himself little or nothing in salary.
      Labor-intensive reporting by the Washington Post’s David Fahrenthold also shows that Trump has exaggerated his charitable donations, that the Trump Foundation is primarily funded not by Trump but by others, and that Trump has used foundation funds for himself: settling lawsuits or, in an act of stunning egomania, paying five figures for a portrait of himself.
      Despite this evidence, pollsters report that Trump is rated higher for honesty and trustworthiness than Clinton. This counterfactual belief speaks to a collective failure of judgment by the American public and a collective failure of reporting, commentary, and fact-checking by news media. Despite some award-worthy reporting in many print media, broadcast and cable news organizations have given far too much attention to trivia and drivel than to substantive issues or to Trump’s discreditable background and career.
      Clinton has waged a mostly traditional campaign built around a slogan of “Stronger Together.” She has detailed policy positions aimed at continuing the social and economic progress of the last eight years at home and confronting the United States’ adversaries abroad with careful diplomacy and disciplined application of military force.
      By contrast, Trump has waged a campaign built around a slogan, “Make America Great Again,” that is an unmistakable appeal to the racist and anti-immigrant sentiments among white Americans. On policy, he is a loose cannon of unrealistic proposals like the wall on the Mexican border, irresponsible ideas like nuclear weaponizing U.S. allies, and unsubstantiated boasts about his ability, alone, to “fix” the mess in Washington.
      Along the way, Trump has given voice and license to a meanness in political life unworthy of the world’s oldest and greatest democracy. He calls for jailing Clinton and is largely silent as some of his supporters openly suggest killing her. And he demeans the electoral process by charging, with utterly no evidence, that the election is rigged because of widespread voter fraud. The respected Georgetown University historian John McNeil has accurately shown that Trump displays many of the attributes characteristic of 20th century European fascism, including what McNeil calls the “cult of the leader” and the “lost golden-age syndrome.”.
      If the polls and projections are to be believed, Clinton will emerge on Tuesday night with an electoral college majority even though her popular vote margin appears to be narrowing after the latest blip in the overblown email scandal. No one expects Trump to go silently into the night as a gracious loser. He has poisoned the body politic. America can be great again but only if Americans come together to get the toxin that Trumpism represents out of our system. Sadly, the evidence of obstructionism among Republican leaders and ill will among Trump’s supporters indicates that the healing process is far from assured and likely to be, at best, slow and difficult.