Courts Still Needed to Curb Political Gerrymanders

      Chief Justice John G. Roberts Jr. made clear in two partisan gerrymandering cases earlier this year his plan to keep the Supreme Court out of that political thicket by disposing of the cases without settling the issues presented. Now comes another judicial intervention skeptic, the Washington Post columnist Charles Lane, to claim in a post-election column that successful anti-gerrymandering ballot measures in five states prove that federal courts are not needed to cure the acknowledged political problem.
      Redistricting reform advocates gained significant ground, to be sure, with ballot measures approved on Nov. 6 in Colorado, Michigan, Missouri, and Utah and a measure approved by Ohio voters earlier in the year, all aimed at reducing the partisan excesses of congressional and legislative districting. Colorado, Michigan, and Utah now join the 20 or so states with independent commissions empowered to draw or propose legislative or congressional districts or both.
      To be clear, however, the Wisconsin political gerrymander that Roberts helped preserve for the time being in Gill v. Whitford is still alive and well, according to a report in the Madison-based weekly Isthmus. Along with electing a Democratic governor, Democrats won a majority of the votes in state legislative races, but Republicans maintained a 63-36 edge in the legislature's lower chamber thanks to the politically skewed maps they drew nearly a decade ago. A three-judge federal court had ordered the maps redrawn, but Roberts concocted a technical legal issue in the Supreme Court proceedings to set aside the decision and leave the misdrawn districts in effect for one more election cycle.
      The ballot measure results show the political appeal of creating independent commissions to take redistricting away from state legislatures. Colorado voters approved Amendment Y and Amendment Z to create separate legislative and congressional redistricting commissions each with 71 percent of the vote. Michigan's Proposal 2 also won easily with 61 percent of the vote, while the successful margin for Utah's Proposition 4 was a scant 2,000 votes.
      Ohio and Missouri took different tacks to try to reduce the political excesses of drawing district maps. Ohio's Issue 1, approved with 75 percent of the vote in the May 8 party primaries, requires a 60 percent majority in the state legislature to approve congressional districting, including at least 50 percent of the members of each of the two major political parties. Two other states, Connecticut and Maine, require a two-thirds supermajority requirement for redistricting, but Ohio added a unique provision to specify minimum support from each of the two major parties.
      Missouri's Amendment 1, approved on Nov. 6 with 62 percent of the, creates the new office of nonpartisan state demographer to draw legislative and congressional districts subject to a statistical test to measure partisan fairness. The demographer's maps will be subject to approval by the previously created bipartisan redistricting commissions.
      Lane, a friend and colleague who covered the Supreme Court for the Post a while back, argued in his column [Nov. 13] that even without the new redistricting commissions, voters themselves thwarted gerrymandering politicians by breaking free from their partisan map-drawing. The mapmakers, he argued, had not reckoned with the changing views of the suburban voters who had been packed into supposedly safe Republican districts but instead broke Democratic in 2018.
      All told, Lane concluded that what he called the United States' "partisan gerrymandering problem" is now "on its way to being cured, with no need for federal judicial intervention." In an earlier column, Lane had seconded Roberts' view from the bench that the Supreme Court risks political crossfire if it tries to draws a line against partisan gerrymandering.
      The Supreme Court's 2017 term had been viewed as the year when the justices would finally settle on a workable standard, but the two cases that separately challenged the Republican gerrymander in Wisconsin and a Democratic gerrymander in Maryland ended only with whimpers. Roberts led the Court in sending the Wisconsin case back for plaintiffs to try to show legal standing to challenge individual districts instead of the statewide map.
      Roberts was surely the prime mover behind the unsigned decision in the Maryland case, Benisek v. Lamone, to dismiss the challenge as too close to the next election. On remand, the three-judge court in that case just ordered the state to redraw the districts, but the state has filed a notice of appeal.
      Redistricting reformers do not share Lane's sanguine view of the results of the Nov. 6 balloting in congressional races. Overall, Lane noted, Democrats won 52.5 percent of the vote in congressional races and — "wait for it" — 53.2 percent of the seats with some races still undecided. Lane conceded, however, that partisan gerrymanders performed just as intended in two states: Maryland, with one Republican in the eight-member House delegation, and North Carolina, with a reaffirmed 10-3 edge for Republicans in a closely divided state electorate.
      Partisan gerrymanders amount to "artificial walls to keep back the natural political tides," according to Justin Levitt, a professor at Loyola Law School in Los Angeles. The walls "held" in some states, including North Carolina, he explains in an interview. Democrats "managed to get over the wall" in others thanks to "extraordinary turnout," he acknowledges, but those successes "don't make it right that the obstacles were put there to begin with."
      In the meantime, the new redistricting commissions may give voters in those states some protection against political mischief. Voters in the majority of states, however, may still look to federal or possibly state courts —  notwithstanding Lane's reassurance to the contrary —  to offer some hope to cure the gerrymandering problem.

Trump's Obstruction Must Not Succeed

      No president other than Donald Trump — however Republican, however conservative — would have given a moment's thought to appointing Matthew Whitaker as the chief law enforcement officer of the United States even temporarily. Whitaker is a con man with bizarre views about the federal judiciary and with no qualifications to be acting attorney general apart from his sycophantic loyalty to Donald J. Trump.
      Trump's installation of Whitaker, a pro-Trump talking head on CNN for the past year, is both unconstitutional and illegal, according to some but not all legal experts. The legal doubt about the appointment [Nov. 7] is not, however, the most important mark against it.
      Instead, Trump's selection of Whitaker must be seen as presidential obstruction of justice by indirection. Whitaker came to Trump's attention by using his CNN slot to echo Trump's denunciation of Mueller's investigation as a "witch hunt" and to deny with unprovable certainty any Russian impact on the outcome of the presidential election.
      Whitaker told friends he signed up for the CNN slot in hopes of gaining Trump's attention for a federal judgeship. On CNN, Whitaker outlined a scenario that Trump could use to quash the Mueller investigation by firing attorney general Jeff Sessions and then appointing a successor to kill Mueller's investigation by cutting his budget.
      As acting attorney general, Whitaker now exercises supervisory oversight over an investigation that he continued to call a witch hunt even after Mueller's successes in obtaining convictions against significant Trump campaign figures, including former campaign chairman Paul Manafort, and indictments against Russian election infiltrators. And if there were any doubt, Whitaker is signaling that he will not recuse himself from that role, as Sessions did, without yet consulting the Justice Department's ethics officers on the question.
      Sessions, an early Trump supporter, was fired after a tumultuous 21 months in office for having recused himself as a potential witness from any role in overseeing Mueller's investigation. He was fired, as the ACLU's national legal director David Cole aptly remarked on Saturday [Nov. 10], for the one good thing that he had done while attorney general.
      Whitaker caught a touchdown pass for Iowa in the 1991 Rose Bowl, but he had not much else on his resume until taking over the corner office at Main Justice last week. He served for four years as a Republican-appointed U.S. attorney for Iowa and then after several years as private citizen ran fourth out of a field of five candidates in the Republican primary for the U.S. Senate in 2014.
      In that campaign, Whitaker took the truly unconstitutional position that, if elected, he would screen nominees for federal judgeships based on whether they had "a biblical view of justice." Apparently, Whitaker's law school course on constitutional law skipped over the provision in Article VI, clause 3, that "no religious test shall ever be required as a qualification to any office or public trust under the United States."
      As another example of Whitaker's weak spots on constitutional law, he has called for overruling the very foundation of judicial review in the United States: Chief Justice John Marshall's landmark decision in Marbury v. Madison (1803). That decision gained support most recently from no less a conservative than the Supreme Court nominee Brett Kavanaugh, who applauded it in his confirmation hearing as one of the Court's "four greatest moments" in history.
      As private citizen, Whitaker served on the advisory board of a company that paid a $25 million fine to the Federal Trade Commission (FTC) for bilking would-be inventors out of thousands of dollars by promising help with their patent applications that never materialized. Whitaker's role in the Florida-based World Patent Marketing was featured in the company's promotional materials, but he was not named in the FTC's complaint.
      The White House apparently knew nothing about the case before Trump's appointment of Whitaker. After news of the case surfaced, however, the Justice Department spokeswoman Kerri Kupec issued a statement noting Whitaker's previous statement that "he was not aware of any fraudulent activity."
      The legal issue over Whitaker's appointment stems from the view of some legal experts that the Constitution requires any "principal officer," even in a temporary role, be Senate confirmed. The argument to that effect was set out in an op-ed article in the New York Times by two lawyers from opposite political camps: Neal Katyal, the Georgetown law professor and former acting U.S. solicitor general under President Obama, and George T. Conway III, the anti-Trump Republican lawyer who is married to senior White House counselor Kellyanne Conway. Stephen Vladeck, a respected law professor at the University of Texas, set out the contrary argument in a subsequent op-ed article also in the Times. He argued that the federal Vacancies Reform Act allows Whitaker to serve in an acting capacity for seven months.
      With no action on Trump's part, the post would have devolved on Rod Rosenstein, the Senate-confirmed deputy attorney general who has gained Trump's disfavor by failing to limit Mueller's authority. Thus, Trump's decision must be understood as deliberately aimed at curtailing the Mueller investigation. The president tried to distance himself from that evident conclusion on Friday [Nov. 9] by claiming, falsely, that he had not even met Whitaker before the temporary appointment.
      Trump's move has disturbing parallels to President Richard Nixon's firing of the special Watergate prosecutor in the so-called Saturday night massacre. Nixon's ploy failed in the face of a public and congressional backlash. Trump seemingly believes that he will be saved by his political base and compliant Senate Republicans. For the sake of the rule of law, he must not succeed and his lackey Whitaker must be thrown back into his well-earned obscurity.

For Trump, Unconstitutional Is No Problem

      President Trump's plan to ban birthright citizenship with an executive order in direct contradiction of the plain language of the Fourteenth Amendment comes as no surprise to anyone aware of the president's limited respect for the Constitution. Trump took an oath to "preserve, protect, and defend the Constitution of the United States," but he has been in open violation of one of its provisions since his first day in office.
      The provision at issue, equally as plain as the Fourteenth Amendment's citizenship clause that Trump proposed to defy, prohibits the president or any federal official from accepting "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State" except with permission from Congress (Art. I, sec. 8, cl. 9). Trump is violating the so-called Foreign Emoluments Clause, according to a lawsuit filed by the attorneys general for the District of Columbia and the state of Maryland, by profiting from foreign governments' patronage of the eponymous Trump International Hotel that the president still owns even if removed from managing it.
      The lawsuit cleared a second procedural hurdle last week [Nov. 2] when a federal judge in Maryland rejected a motion by Trump's lawyers for an immediate pretrial appeal of legal issues in the case and a stay of any pretrial discovery. U.S. District Court Judge Peter Messitte rejected point by point all of the justifications Trump's lawyers offered for allowing the president a so-called "interlocutory appeal" to the Fourth U.S. Circuit Court of Appeals in advance of discovery or trial. "Judicial economy favors going forward with the case in this Court at this time," Messitte wrote at the end of his 31-page opinion.
      The case, District of Columbia v. Trump, PJM 17-1596, is now set for pretrial discovery that could include, according to D.C.'s attorney general Karl Racine, examination of some of Trump's federal income tax returns. Messitte ended his opinion by asking the lawyers to submit a proposed schedule for discovery within 20 days — that is, by the end of Thanksgiving week.
      Trump's lawyers contended, among other arguments, that the president ought not be burdened by a civil lawsuit and pretrial discovery given all the demands on his time. Messitte, a senior judge appointed to the federal bench in 1993 by President Bill Clinton, batted that claim away by noting that Trump has found the time while president to pursue or threaten lawsuits against, for example, the author Michael Wolff or his former aide Steve Bannon. "[T]he President himself appears to have had little reluctance to pursue personal litigation despite the supposed distractions it imposes upon his office," Messitte wrote.
      The D.C./Maryland suit now appears to be the farthest advanced of three Emolument Clause lawsuits filed against Trump. Messitte noted in his opinion that one of the suits, brought by the whistleblower advocacy group Citizens for Responsibility and Ethics in Washington (CREW), was dismissed by a federal judge in New York, George Daniels, for lack of legal standing. The other suit, filed in federal court in the District of Columbia on behalf of 200 members of Congress under the name Blumenthal v. Trump, survived a motion to dismiss after Judge Emmet Sullivan found the lawmakers had legal standing. Sullivan noted in his ruling that under the Emoluments Clause, Trump had the obligation to seek permission from Congress to receive any payments prohibited under the provision.
      Trump's lawyers have argued in all three cases that arms-length transactions with Trump properties are outside the Emoluments Clause. In their view, prohibited "emoluments" are limited to payments to an official "arising from an office or employ." Messitte rejected that "cramped" interpretation in his July 25 decision refusing to dismiss the case. As Messitte explained in the new opinion, the definition urged by Trump's lawyers would be "tantamount to a bribe," a significantly narrower definition than the broad reading of "emoluments" found in 18th century dictionaries.
      Messitte noted that Trump is still receiving foreign emoluments even within his narrow definition of the term. Several foreign governments, including as examples Kuwait and Saudi Arabia, "have expressly stated in the media that they are patronizing the President’s hotel precisely because he is the President." Those payments, Messitte continued, "constitute an 'emolument' foursquare within the President’s definition of the word, especially if, what appears likely, the payments to his hotel are being made with an expectation of favorable treatment by the President in matters of foreign policy."
      Trump's lawyers cited four legal issues they wanted to include in the midstream appeal, including the court's authority to issue either declaratory or injunctive relief against the president. Again, Messitte found the argument baseless. He repeated from his earlier opinion that there is "ample authority suggesting that even the President — in his official capacity — can be the subject of equitable relief, especially given a situation such as the one at hand." Put differently, the president is not above the law.
      The president previously demonstrated his shaky knowledge of the Constitution by claiming to have read all 12 articles: it has only seven. The supposed birthright citizenship executive order, unissued more than a week after Trump's boasting of it, needs no extended discussion here to underscore that the president has no power with the stroke of a pen to amend the Constitution that he swore to "preserve, protect, and defend." So far, Trump has gotten away with mocking and defying the Constitution, but the independent judiciary that the Framers created may yet be strong enough to hold him accountable.