The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Throwing Shade At The Shadow Docket In The Alabama Redistricting Cases

Merrill v. Milligan is the most important shadow docket entry since John Does 1-3 v. Mills

|

On January 24, 2022, a three-judge panel of the Eleventh Circuit issued an injunction to block Alabama's new electoral maps. The court found that Alabama should have created a second majority-minority district. Alabama appealed that ruling to the Supreme Court, and sought a stay of the injunction. On Monday, the Supreme Court issued an order in Merrill v. Milligan and Merrill v. Caster. The application for a stay was treated as a petition for a writ of certiorari before judgment. The Court granted that petition. The Court also stayed the injunction while it resolves the appeal. Presumably the case will be set for argument next Term.

The Court split 5-4. Justice Thomas, joined by Justices Alito, Gorsuch, Kavanaugh, and Barrett supported the Court's order. Chief Justice Roberts dissented from the grant of the application for stays. But he agreed to grant certiorari before judgment, and would set the case for arguments next Term. Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. They would not have granted the stay. Justice Kavanaugh wrote a concurrence, joined by Justice Alito, that responded to Justice Kagan's dissent. The other members of the majority did not explain their reasoning.

I see this case as the most important shadow docket entry since John Does 1-3 v. Mills. In that vaccine mandate case, Justices Barrett and Kavanaugh explained why they were hesitant to grant injunctions in unargued cases. At the time, I wrote that Barrett and Kavanaugh cut the fuse on the shadow docket. On January 27, Barrett--but not Kavanaugh--declined to grant a stay of an injunction in a capital case. Yet in the Alabama cases, Barrett granted a stay, without explaining her reasoning. How do we reconcile these votes? I think the simplistic answer is that Barrett prefers maintaining the status quo. Or, stated differently, she does not want the Court to enter emergency relief that would alter the status quo. In the vaccine mandate case, the District Court did not grant an injunction, so the status quo remained that the mandate would go into effect. In the capital case, the district court granted a stay of execution, so the status quo remained that the inmate would not be executed. And in the Alabama cases, the district court ordered the state to draw new maps. Granting a stay preserved the old maps, which would continue to remain in effect for the 2022 elections.

Still, Justice Kagan's dissent called out Justice Barrett:

The question whether to accept Alabama's position demands serious and sustained consideration—the kind of consideration impossible to give "on a short fuse without benefit of full briefing and oral argument." Does v. Mills, 595 U. S. ___, ___ (2021) (slip op., at 1) (BARRETT, J., concurring in denial of application for injunctive relief ).

Barrett was not persuaded.

And what about Justice Kavanaugh? I get the distinct sense that he is annoyed at the incessant carping about the shadow docket. Same here. Kavanaugh throws shade on Kagan's shadow docket lamentation:

The principal dissent's catchy but worn-out rhetoric about the "shadow docket" is similarly off target.

The remainder of Kavanaugh's concurrence--which Barrett does not join--provides some more guidance on when he will grant emergency relief for election cases.

First, Kavanaugh repeats over and over and over again that a stay does not resolve the case. Rather, a stay maintains the status quo while the Court resolves the case.

The stay will allow this Court to decide the merits in an orderly fashion—after full briefing, oral argument, and our usual extensive internal deliberations—and ensure that we do not have to decide the merits on the emergency docket. To reiterate: The Court's stay order is not a decision on the merits.

Without question, the old maps will remain in place for the 2022 primaries and general election. But, in theory at least, different maps would apply after 2022.

Second, Kavanaugh explains that the traditional four-factor test for seeking certiorari before judgment does not apply in election cases. Rather, Purcell governs:

As the Court has often indicated, however, that traditional test for a stay does not apply (at least not in the same way) in election cases when a lower court has issued an in-junction of a state's election law in the period close to an election. See Purcell, 549 U. S. 1. This Court has repeatedly stated that federal courts ordinarily should not enjoin a state's election laws in the period close to an election, and this Court in turn has often stayed lower federal court in-junctions that contravened that principle. 

Third, Kavanaugh would extend the Purcell principle to primary elections, at least in this case. We are quite far from the general election in November, but early voting for primaries start sooner.

The District Court's order would require heroic efforts by those state and local authorities in the next few weeks—and even heroic efforts likely would not be enough to avoid chaos and confusion.

I'm not exactly sure how Kavanaugh counts a "few weeks." Early voting for the primaries begins on March 30--about six weeks from now, and more than two months from the District Court's order. Then again, remember when Justice Kavanaugh wrote that the CDC eviction moratorium would wind down "in a few weeks." At the time, 31 days remained on the calendar. Times moves funny in the Kavanaugh chambers.

On the topic of the timing, Justice Kagan included this powerful sentence:

Alabama is not entitled to keep violating Black Alabamians' voting rights just because the court's order came down in the first month of an election year. 

I immediately thought of the McConnell rule--Justice Scalia died in the second month of an election year, but close enough. I suspect the thought crossed Justice Kagan's mind as well.

Fourth, in a footnote, Kavanaugh provides some guidance on when Purcell kicks in:

How close to an election is too close may depend in part on the nature of the election law at issue, and how easily the State could make the change without undue collateral effects. Changes that require complex or disruptive implementation must be ordered earlier than changes that are easy to implement.  

Fifth, Kavanaugh provides a framework to explain how the Plaintiffs can rebut the Purcell presumption:

I would think that the Purcell principle thus might be overcome even with respect to an injunction issued close to an election if a plaintiff establishes at least the following: (i) the underlying merits are entirely clearcut in favor of the plaintiff; (ii) the plaintiff would suffer irreparable harm absent the injunction; (iii) the plaintiff has not unduly delayed bringing the com-plaint to court; and (iv) the changes in question are at least feasible before the election without significant cost, confusion, or hardship.

All four of these elements must be satisfied. The Purcell presumption will be very tough to rebut.

Sixth, Kavanaugh recognizes that the District Court did a really thorough job here, but so what. Conscientious rulings are not insulated from appellate review.

The principal dissent disagrees and emphasizes the thoroughness of the District Court's opinion. But if careful District Court consideration sufficed for an appellate court to deny a stay, then appellate courts could usually end the stay inquiry right there. That is not how stay analysis works. Contrary to the dissent's implication, the fact that the District Court here issued a lengthy opinion after considering a substantial record is the starting point, not the ending point, for our analysis of whether to grant a stay. 

This point is significant. In many cases, the Supreme Court has put a lot of weight on the District Court's factual findings. For example, in Whole Woman's Health v. Hellerstedt, Justice Breyer spent page-after-page recounting the District Court's finding. Indeed, those findings served as the basis for the constitutional ruling. I think Justice Kavanaugh is now signaling that the labor of the lower courts is appreciated, but is only the "starting point." As the saying goes, Okay, we'll take it from here, goodbye.

(We don't talk about Nino, no no.)

Finally, Kavanaugh repeats his claim that Kagan's rhetoric was "mistaken," and adds a curious aside:

Contrary to the dissent's mistaken rhetoric, I take no position at this time on the ultimate mer-its of the parties' underlying legal dispute. And I need not do so until the Court receives full briefing, holds oral argument, and engages in our usual extensive internal deliberations.

I can't recall any opinion where a Justice references "internal deliberations." And not just any internal deliberations--"extensive internal deliberations." What is Kavanaugh getting at here? After the case is argued, the Justices will discuss the case at conference, assign a majority opinion, and if necessary, a dissent. Of course, we all know that deliberations do not conclude at the conference. Opinions go through revisions, and in some cases, votes flip. When Kavanaugh writes "extensive internal deliberations," is he referring to the conference on Friday afternoon? Or the long, slogging process by which a majority is shaped and formed and reformed?  Why is this passage here? What is Kavanaugh saying? That he is open to being persuaded on the matter through extensive internal deliberations--with Justice Kagan? Indeed, he hints that he is open to persuasion on the merits in Footnote 2:

Even under the ordinary stay standard outside the election context, the State has at least a fair prospect of success on appeal—as do the plaintiffs, for that matter.  

Perhaps I am making too much of three words, but after an otherwise meticulous concurrence, this parting thought jumped out at me.

Till next term.

NEXT: A Free Speech Win at George Washington University

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I would think the need for urgency applies in 3 cases (at least). [a] Death Penalty cases, of course. Deciding in favor of the prisoner after he's been executed would be pretty awful. [b] Abortion: Wait too long, and the woman's decision is taken away (or made much much more dangerous. [c] Elections. Saying, "Nah; we'll just wait 10 more months and let possibly impermissible elections go forward...no serious problem there." . . . well, that's pretty awful as well, plus being anti-American and anti-democracy.

    I would have preferred that the 5 pro-Republican justices recognized that elections are also a special category. The Sup. Ct certainly had no problem rushing to hear and resolve Bush v Gore within a fortnight or so . . . for obvious reasons. Oh well.

    1. As the majority explains, a court's order regarding elections can cause great injustice across its entire swath by throwing the election into chaos. (Incidentally, that was the problem with the Florida Supreme Court in 2000: They wanted to achieve a particular objective, never mind the predictable chaos.) In the absence of real accountability for politicians who break the laws, courts can only seek to minimize injustice.

      1. But this is silly. The primaries aren't for months, the lower court had ordered maps to be redrawn by yesterday or else the court would draw them, and they hadn't been redrawn. Maps easily could've been done by the end of the month and there would've been no chaos.

        1. Months? <2 until early voting starts.

          1. Yeah, I am not sure what is supposed to happen to candidates whose districts are suddenly redrawn around them, much less one whose district moves out from under then. JJJSSS assumes that lead times for translating and printing ballots, plus mailing absentee ballots, is negligible, along with updating all the voter eligibility databases.

            1. Filing deadline was supposed to be the end of this week, so candidates weren't settled, and the legislature drew the previous maps in one week. The lower court was going to begin drawing districts yesterday (because the legislature refused!) and could have been done by Friday. If the Court had said no to the stay, things could have proceeded with likely no more than a ~2 week delay from current deadlines. And if they'd said no to the stay more quickly, they could've proceeded with even less of a delay. So yes, I do assume that these issues could've been handled with alacrity if the Court had not issued a stay.

              1. As you say...the filing deadline was end of week. That is the only known. All the rest is supposition (could be true - or not).

              2. The supreme court has been consistent in recent years: No Judicial tinkering of elections in election years.

                And you seem to gloss over the reality that candidates have a lot tighter time-frames for putting a campaign together than just filing deadlines. They've got to find contributors, line up supporters, establish campaign organizations, all of which is impossible if they don't know which district they or their potential supporters live in, or the characteristics of the district.

                1. "The supreme court has been consistent in recent years: No Judicial tinkering of elections in election years."

                  Which fundamentally means that a legislature can do anything that it wants, however blatantly unconstitutional, as long as they do it in an election year. In fact, it actually has an interest in doing so! Checks and balances only function in off years.

                  There are plenty of states where all this is being done later in the year. The idea that a week or two, or even a month, is significantly more impactful on the candidates vs. denying voters their rights to vote would be laughable, if the result wasn't denying voters their rights.

                  1. What's laughable is the assertion that any voters are actually being denied their right to vote. They're using practically the same maps that were previously ordered by a court a few decades ago, if I understand things correctly, with some minor changes to account for population shifts. But now people claim that a district which is like 55% Black is "packing".

      2. Just wanna say that the majority did not say that. Justice Kavanaugh, joined by Justice Alito, said that. But his concurrence was not a majority opinion.

    2. Why not re-run elections if they are found to have gone wrong? Last year's German general elections went badly wrong in three districts in Berlin, so they're redoing the election there later this year. NBD

      https://verfassungsblog.de/out-of-sync/

      1. That's done at the local level in states, I don't think there's any principled reason it couldn't be done for federal elections, there's just no statutory provision for doing it. (And there are constitutional obstacles for doing it in Presidential elections.)

        I think this is actually the main reason the 2020 election challenges were almost uniformly rejected: There wasn't really any remedy available, because you could not, in fact, rerun the election if it had been proven to be compromised.

        1. I would think they'd be able to type on these situations under the variable of being repeated doctrine used for abortion. They can't provide a remedy for this round, but they can declare rule it a beach of the law and prevent it from happening again.

          1. And you'll notice that the election changes the courts refused to take challenges to after the 2020 election are now starting to be struck down going forward.

            Mail in voting without cause in Pennsylvania. Drop boxes in Wisconsin. Both have recently been ruled to have been illegal after all. For all the good it does Trump at this point.

            I think they could be, at this point, precisely because it doesn't do him any good.

            1. illegal after all

              Not how it works, Brett.

              1. I'm not sure what you mean by that; The Pennsylvania mail in voting without cause was ruled to be a violation of the state constitution, and if you read the state constitution, it wasn't even a close thing.

                Was the state constitution relevantly different in 2020? Not that I'm aware.

                1. Donald Trump was running so Constitution Schmonstitution.

                2. You're leaning really hard on a The Pennsylvania Commonwealth Court ruling.

                  And your declaring it wasn't close is...a take.

                  Finally, constitutional decisions are not retroactive. Think about why that is, for a moment.

                  Your mixing up is and ought have once again done you a disservice.

                  1. "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed."

                    If the law permitting absentee ballots without cause was unconstitutional, it was unconstitutional from the moment of enactment. To be sure, it's too late for that to benefit Trump, but it doesn't change the fact that those votes weren't cast consistent with the law, it just means that it's too late to do anything about it.

                    1. Do you see all the present tense you used in your quote?
                      And then you switched for your own reformulation to past tense.

                      Therein lies the misunderstanding.

                      Also, of course, taking a mid-tier appellate decision as the final word because it went your way.

                  2. “And your declaring it wasn't close is...a take.”

                    This is a sneer, not an argument. Try harder kiddo.

                    1. He just declared something. There is not much of a counterargument to ipse dixit other than noting that most professionals disagree with him.

                    2. The state constitution literally lays out the reasons why you're allowed to vote absentee.

                      "The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside."

                      Yeah, the minority on the court appealed to this language: "“All elections by the citizens shall be by ballot or by such other method as may be prescribed by law.”"

                      That doesn't clearly state that the first clause was overridden, it just permits things like voting machines.

                    3. The state constitution literally lays out the reasons why you're allowed to vote absentee.

                      No. It does not. Read more better.

                      It literally lays out the reasons that the legislature must allow one to vote absentee. It does not say that these are the only reasons why one can be allowed to vote absentee. (In other words, the constitution sets a floor, not a ceiling.)

                    4. The last time they wanted to expand the list of excuses, they did it by amendment.

                      It's an exclusive list, had always been treated as one until 2020.

                    5. It's an exclusive list,

                      Not by its text it isn't.

                      had always been treated as one until 2020.

                      Brett, we both know you are pulling this out of your ass. You've done no research whatsoever to be able to say this.

                3. I did read the state constitution, and you're wrong.

                  The Wisconsin decision was a trial court decision; the Pennsylvania one is an intermediate appellate court. Neither one has "struck down" anything, as in each case the decisions were immediately appealed and stayed.

                  1. And even if the Supreme Court ends up declaring the executive actions opening up voting to be unconstitutional, that doesn't retroactively make those actions illegitimate.

                    That's just not how the law operates.

                    1. That's possibly the dumbest thing I have ever read on a law blog.

                    2. Legitimately unconstitutional? How does that work?

                  2. The state constitution literally listed the reasons for which an absentee ballot could be voted. "Because I felt like it" was conspicuously not on the list.

                    1. Not all lists are exhaustive.

                      And IIRC the executive relied on another part of the constitution, not 'because I felt like it.'

                      You are trying to both editorialize and claim objective analysis. It's not working very well.

                    2. Yeah, another part of the constitution that had just a general direction, whereas the part permitting absentee ballots was specific and detailed.

                      You don't overturn specific and detailed language on the basis of general goals.

                    3. The state constitution literally listed the reasons for which an absentee ballot could be voted.

                      Again: it does not. It commands the legislature to provide for absentee voting for those reasons.

                      Do you see the word "only" in that provision?

                      The Pennsylvania constitution says, "The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth." Do you think this means that the General Assembly is forbidden to provide school vouchers for kids to attend private schools? No. That the legislature must provide for public schools does not mean it can't provide for private schools also.

                  3. “I did read the state constitution, and you're wrong.”

                    You seem to specialize in bare assertions without argument lol

                    Cry more.

                    1. You ignore Brett's bare assertions because you agree with them.

                    2. Two wrongs don't make a right.

        2. Any evidence of wrongdoing was the main reason these challenges failed. The Mark Harris case in North Carolina shows That there can be a remedy for election fraud in a federal election.

        3. It wouldn't work for the federal level. Look at the insane amount of money and wrangling that goes into problematic districts now, or that Virginia (?) run off election.

          In our minds: oh what a happy little meadow of butterflies! Let them re-vote!

          In politicians minds: now we spend billions and send 10 agents to every home to lean on them without looking like it. Oh what a dingy little rusted out vehicle down a back alley!

          Also the mood has changed, another downside.

          The correct answer is any election so close is already troublesome. People rage at what should be irrelevancies, upset all the way to Heaven because a whale has a small boil somewhere.

        4. And, thus, a reason to NOT allow rushed changes right before the election. But Orange Man Bad, so Roberts, et al. went, it's all good. Now? Ah, now, we have to make sure we don't screw anything up, so the status quo is better. Will it be the same in 2024? Magic 8-Ball says 'Ask again later ...'

          1. You think Mr. Shelby County is voting the way he does to stick it to Trump?

            The solipsism by proxy of some folks on here...Not everything is about Trump.

            1. No, but I think the punt on 'Did the executive and / or judiciary rewrite election procedures instead of, as the constitution says, the legislature' in several states, which, oddly are just now getting decided (PA, and others saying, 'yay, no, those changes weren't cool') but no injunction has led to a LOT of problems, like Jan 6, and routine belief that the election was stolen. Would it have been better if the rules weren't changed an Biden lost? Dunno, but I can see a flip flop in who is freaking out and who would have been freaking out on Jan 6.

              As for the best case, injunction, Biden wins. But we don't get to view that conterfactual. And NOW, NOW, the SCOTUS decides to stop the rules changes? It isn't helping ANYONE have faith that justice or the rule of law is being observed.

              1. No one in their right mind reads 'legislature' to mean plenary power without judicial review or executive discretion.
                Turns out Steve Bannon is not a good source on constitutional law.

                With that assumption out of the way, it looks like you are blaming those who followed the law as it exists for right wingers disconnecting from reality.

                I think the right answer is to blame the 2020 truthers for being conspiratorial idiots and treating them accordingly.

                1. Having had some interest in the PA case I've considered how to accommodate both judicial review and the command that the legislature sets the rules for voting.
                  I came to the conclusion that the court could block the legislature's regulation but they couldn't set the replacement themselves. It would be required for the legislature to go back and write new law that complied with the courts decision.
                  That could probably lead to some interesting shenanigans but it has the charm of conforming to the wording "prescribed in each state by the legislature thereof"

                  1. You're reading a restriction on remedy into the Constitution where none exists.

                    The Constitution does not generally allow for splitting the difference in what it requires.

                    1. I'm just a guy with an opinion. I do notice though that when the courts say that a map was gerrymandered that they send it back to be redrawn.
                      I suppose that the proof will be if one of these cases ever comes to SCOTUS and is ruled on. I believe that there has been some interest there that such be taken up.

                    2. I, too, am just a guy with an opinion.

                      Courts can tailor there remedy, but I'd find it pretty hinky if they said such a remedy was precisely what the Constitution requires.

                2. “No one in their right mind reads 'legislature' to mean plenary power without judicial review or executive discretion.”

                  Executive discretion is nowhere provided for in the provision. And judicial review is nowhere explicitly provided for in the Constitution. Yet judicial review is constitutional in general, which I nevertheless think it is, that doesn’t mean a right to *rewrite* the laws, only to strike them down. So no one here is arguing against judicial review of election laws. But, yes, there should be no executive discretion and you have no argument to the contrary. Just an assertion of your own incredulity, which counts for nothing.

                  1. Good news! The judiciary didn't rewrite anything.

                    And But, yes, there should be no executive discretion flies in the fact of the executive power throughout our history. From the post offices at our Founding on out.
                    Citing the constitution as a source of authority is not an uncommon thing. And the judiciary's job is to evaluate whether the executive abused their discretion.

                    This is how our separation of powers is fundamentally set up.

                    But more importantly if you don't think the right isn't trying to make the ridiculous argument that state legislatures have sole authority to regulate elections, you need to do some reading.

                    1. "The judiciary didn't rewrite anything."

                      You obviously haven't read SCOPA's decision in Boockvar lmao. Give me a break and quit gaslighting.

                      "And But, yes, there should be no executive discretion flies in the fact of the executive power throughout our history."

                      Wow, the history of the Constitution is the history of its subversion. Shocker! Come back when you have an argument grounded in the text of the provision.

                      "And the judiciary's job is to evaluate whether the executive abused their discretion."

                      And whether the law provides them with discretion in the first place.

                      "But more importantly if you don't think the right isn't trying to make the ridiculous argument that state legislatures have sole authority to regulate elections, you need to do some reading."

                      Argument by adjective is no argument at all.

                    2. The law will always have some give in how it is implemented - humans are not predictors of the future.

                      As to the PA cases, that was an interpretation of the PA constitution, and the court went with the PA Secretary of State, who is last time I checked an executive officer. You can't just call everything you disagree with judicial legislating. Well, you can - your party has a long history of doing that - but not many who don't already agree with you will listen to you anymore.

                      Finally, *you* are the one who argued no one thought the legislature's authority was unchecked by the judiciary when setting election rules. I was pointing out people absolutely are arguing that.
                      You then switch from 'no one is arguing it' to 'I'm actually arguing it, and you failed to rebut me.' Luckily, you yourself provided a pretty good counterargument: "judicial review is nowhere explicitly provided for in the Constitution. Yet judicial review is constitutional in general, which I nevertheless think it is,"

                      You need to work on sticking to your goalposts.

                    3. "that was an interpretation of the PA constitution"

                      You can call anything an interpretation if you want, that doesn't change the fact that the Court literally unilaterally altered the receipt deadline for mail-in ballots against the explicit text of the bill.

                      "the court went with the PA Secretary of State, who is last time I checked an executive officer."

                      Over against the arguments of the Republican state legislators who literally wrote the bill. Because the PA Dems sued Boockvar and she added her own friendly amendments. Just like corrupt Dem executive officials used their sue-and-settle strategy with friendly plaintiffs all over the country to circumvent legislatures using the courts.

                      "Well, you can - your party has a long history of doing that - but not many who don't already agree with you will listen to you anymore."

                      I'm not a Republican, moron. And yeah, I would call making up new requirements of a bill over the explicit protestations of its authors "judicial legislating" and so would any other sane person not blinded by partisanship.

                      "You then switch from 'no one is arguing it' to 'I'm actually arguing it, and you failed to rebut me.'"

                      I never said that *I* was arguing that. I just said that you haven't actually given an argument against it. Which is literally true. You need to work on your reading comprehension, champ.

        5. I think this is actually the main reason the 2020 election challenges were almost uniformly rejected:

          No. The main reason the 2020 election challenges were uniformly rejected was because they lacked legal and factual merit.

            1. No, it's a descriptive statement. That's why the courts rejected the challenges. Now, you might think the courts mistakenly did so on that basis, but it doesn't change the fact that it was the basis.

              And I don't know what you think I need to "cope" with; Biden is president, and Trump isn't.

              1. "Merit" is an objective question. If the courts *mistakenly* rejected the challenges, they mistook the merits. Therefore the actual merits were not the basis for their decision. You literally don't know how words work.

                You need to cope with the fact that your arguments have no basis whatsoever.

                1. "Merit" is an objective question.

                  I mean, not exactly, but that's irrelevant. If I think you're having an affair with my wife, and I shoot you in response, then it is accurate to say that I shot you for adultery, regardless of whether or not my belief was mistaken. That was my only motive.

                  But of course the court decides whether a case has merit; it is not a mere passive bystander.

                  And to the extent it's objective: the cases had no factual or legal merit. The people filing the post-election suits lacked standing, lacked causes of action, lacked entitlement to equitable relief, and of course lacked a good faith basis that there were any facts justifying their challenges.

                  1. "then it is accurate to say that I shot you for adultery, regardless of whether or not my belief was mistaken."

                    No, it's accurate to say that you shot me because you believed that I committed adultery. It would be *in*accurate to say that you shot me for adultery, because I didn't commit adultery.

                    "And to the extent it's objective: the cases had no factual or legal merit. The people filing the post-election suits lacked standing, lacked causes of action, lacked entitlement to equitable relief, and of course lacked a good faith basis that there were any facts justifying their challenges."

                    ipse dixit ipse dixit ipse dixit. When oh when will you give an actual argument or evidence? To the extent that it's objective, the 2020 election was rife with unconstitutionalities, most of all the abuse of executive powers and barratry by friendly plaintiffs conspiring with executive officials to settle their way to what the state legislatures would not give them. And standing is a bullshit doctrine invented out of whole cloth in the 1920s to shield the administrative state (but ofc that means a moron like you loves it).

                    1. And there was of course a good faith basis that there were facts justifying their challenges, since there were indeed such facts, as the PA Commonwealth Court has ruled, and as the WI Supreme Court is soon to rule. Not to mention the utterly ridiculous 250k "indefinitely confined" voters in WI and the mass illegal ballot-harvesting in GA. Cry more.

                    2. When oh when will you give an actual argument or evidence? To the extent that it's objective, the 2020 election was rife with unconstitutionalities, most of all the abuse of executive powers and barratry by friendly plaintiffs conspiring with executive officials to settle their way to what the state legislatures would not give them.

                      The irony meter exploded.

                      And standing is a bullshit doctrine invented out of whole cloth in the 1920s to shield the administrative state (but ofc that means a moron like you loves it).

                      (1) That's not true.
                      (2) Why would that mean I love it? Do you think I'm a fan of the administrative state? On what possible grounds could you think that?
                      (3) Even if that were true, it's still binding doctrine. Courts are not free to ignore it just because XD dislikes its origins as he misunderstands them.

                    3. "The irony meter exploded."

                      Apparently, you're incapable of distinguishing between rhetorically deploying your own tactic against you to demonstrate its vacuity and actually endorsing that tactic.

                      "That's not true."

                      Yes, of course, it is:

                      https://en.wikipedia.org/wiki/Massachusetts_v._Mellon

                      "Why would that mean I love it? Do you think I'm a fan of the administrative state? On what possible grounds could you think that?"

                      You evidently love the administrative state as it applies to elections, given your blasé attitude towards its widespread abuse leading up to the 2020 election.

                      "Even if that were true, it's still binding doctrine."

                      LOL. The Plessy v. Ferguson defender has logged on.

                      "Courts are not free to ignore it just because XD dislikes its origins as he misunderstands them."

                      Of course, but they are free to ignore it if it is bad law with no grounding in the history or text of the Constitution.

    3. I'm gong to point out that a and b are the same thing depending on when you view humans as humans. Once you kill someone they're dead. There is no "my bad" being someone back to life button.

  2. Perhaps I am making too much of three word

    Do you fucking think so?

    1. Your use of profanity is completely unnecessary, and rude. It doesn't add anything to the discussion, and detracts from the blog.

      1. You seem fun at parties.

      2. I don't recall your objections when conservative commenters at the Volokh Conspiracy have repeated called for liberals to be gassed, placed face-down in landfills, shot in the face when opening doors, raped, sent to Zyklon showers, and the like, ThePublius.

        I ascribe this disparity to your deplorable status as a bigoted, disaffected, antisocial, worthless, right-wing culture war casualty.

      3. that's sort of an ironic position to take on a blog that is largely about free speech cases.

        1. Not so ironic when one considers the censorship this blog's proprietor has repeatedly imposed.

      4. You said the n word yesterday and thought "Jew" was a slur that needed censored.

        1. I can't believe you just casually used the J-word!

  3. It is astounding the lengths the justices will go to avoid making simple decisions.

    The case is a simple one: reject any change in maps until the majority of the people in the state agree to the redistricting map.

    If that leaves district without a representative or having two, tough shit. It’s their own damn fault for not coming to a compromise.

    1. In what states are redistricting maps approved or rejected by popular vote?

      Most states it's up to the legislature.

      1. In what states are redistricting maps approved or rejected by popular vote?

        The map at https://ballotpedia.org/State-by-state_redistricting_procedures says "none of them".

      2. That’s the phrase you chose to parse? Do you have anything substantive to say?

    2. It's even more astounding the lengths some of the justices will go to to achieve the results dictated by their Federalist Society masters.

    3. One of the issues is that the, well, the majority have, in the past, been very unfair to a minority (or two). Simply having a tyranny by majority isn't a good policy.

      Now, have we implemented a better policy at this time? Outlook is cloudy.

  4. "Alabama is not entitled to keep violating Black Alabamians' voting rights just because the court's order came down in the first month of an election year. "

    'That's right! As long as they don't explicitly *say* it's because they're black, and claim it's because they're Democrats, and it's just trying to ensure Democrats can't win, they entitled to do it *regardless* of when.' -the Rucho v CC majority.

    1. Since when do black Alabamians have a "right" to be grouped into districts with other blacks such that they are able to bloc vote in a black?

      1. I was interested in finding, on looking into it, that the VRA doesn't actually call for any such thing. It's a result of court decisions interpreting it. The act itself prohibits "denying a racial or language minority an equal opportunity to participate in the political process."

        It was the courts that decided that the only way a minority could have the opportunity to equally participate is if they had their own gerrymandered districts that made them locally the majority.

        On the face of it the only thing the act itself requires is that they be allowed to participate, the courts decided that they had to be allowed to win.

        1. All right, how is that different from the two senators per state rule that says rural voters must be allowed to win rather than merely participate?

          I don't see how you can have it both ways. If it's bad to have rules that give the minority disproportionate voting power, then it's bad whether it applies to black voters in Alabama or rural voters in flyover country.

          1. "All right, how is that different from the two senators per state rule "

            That one is explicitly written into the US Constitution.

            1. Which tells us nothing about whether it's good policy.

              1. Well it tells us what the law is.

                But Krychek you do know that 2 Senators per state is the one provision in the constitution that can't be amended don't you? You can have 2/3 majorities in Congress,and 3/4 of the states all agree this make the Senate proportional, and Wyoming or Rhode Island can block it.

                You should probably find another hobby horse.

            2. Just to clarify, because this issue keeps coming up, when I argue that something is a terrible idea, it's no answer to say, "But it's in the Constitution." I understand that; it's still a terrible idea.

              You either support the concept of group set-asides or you don't.

              1. But, what if you think violating the Constitution is also a terrible idea? Then you've got two competing terrible ideas, and have to pick one.

                There's no way out here, if you want to maintain the rule of law: You have to persuade enough people that it's a terrible idea that you can change the Constitution.

                1. I have never advocating saying, by fiat, that the two senator per state rule is dead and going forward senators will be elected proportionate to population, which clearly would violate the Constitution.

                  But sometimes you mitigate the consequences of a terrible idea with something you wouldn't otherwise do. OK, rural voters get group set asides, so maybe giving them to minority voters too, in an attempt to lessen the consequences of rural voter set asides, is the best one can do.

                  Now, if I were supreme dictator, I'd get rid of group set asides for both. I'd democratize the Senate, and I'd get rid of minority voting districts. But I don't believe in unilateral disarmament. If we're going to have one, then let's have the other.

                  1. You ever hear the phrase "two wrongs don't make a right"?

                    1. It's not a second wrong so much as a lesser evil. In a perfect world neither would exist, but that's not the world we live in.

              2. Federalist No. 62

                (from wikipedia)

                The equality of representation.
                The Senate is meant to regulate the power of the House of Representatives by giving equal power to every state in the Senate. This is accomplished by allowing each State two senators with one vote each, which counteracts the fact that the number of representatives per state is based on the size and population of the state. As Madison says, "the government ought to be founded on a mixture of the principles of proportional and equal representation". Due to this, each state has equal power in the Senate, which in turn protects smaller States from being overpowered by larger States. Representatives are elected with the people's interests in mind, while senators are elected with the States' interests in mind. What this means is that when the House of Representatives votes to pass a law or bill it is then voted for in the Senate which leads to the passing of laws that cater to both the States and the people. This type of two-stage voting system keeps the House of Representatives from passing too many laws or from passing laws that possibly serve the interests of the people themselves.
                (end)

                KRYCHEK_2, is it safe to say that you reject federalism, reject state sovereignty? You are calling for a monolithic national government, with popular elections for everything? Perhaps the elimination of the Senate?

                1. I would not support a "monolithic national government, with popular elections for everything" or elimination of the Senate. I do think that when we do have elections, everyone's vote should count as much as everyone else's vote, meaning a Kansas voter's vote for the US Senator or President carries no more or no less weight than a New Yorker's.

                  I also think that hovering over all of this is the fact that what worked in 1789, under conditions that then existed, does not necessarily work well 230 years later. A lot has changed since then. We don't follow the medical practices of James Madison's doctors, so why should we be bound by his ideas of what constitutes good governance when the country today doesn't look at all like it did then.

                  I probably would not reject federalism outright, but I do think it's in sore need of re-vamping. The government James Madison gave us is not the government most Americans now want.

                  1. No, but we still abide by the same medical ethics that James Madison's doctors did. Do no harm. Moreover, since 1792, we've made a number of changes to the Constitution.

                    There are good reasons not to change things if they aren't horribly broken. Changing systems of government has a large element of risk in it.

                    1. And I would argue that the crippling paralysis we see, in which Congress can't even pass a budget, is horribly broken.

                    2. Every year Congress passes a budget of some sort. Every single year. That's not "crippling paralysis".

                    3. Congress has mandated 80% of the spending to be automatic.

                      You seem to want One Party Rule because these morons bicker over the crumbs.

                  2. "why should we be bound by his ideas of what constitutes good governance "

                    We can change it, there is a procedure provided in the Constitution.

                    1. Except that the rules provided for changing the Consitution are themselves part of the problem.

                    2. Only in the sense that they get in the way of you changing them without the public's consent.

                  3. "Congress can't even pass a budget"

                    What are you talking about? A budget is passed every year, Congress spends over 4 billion dollars in a normal year.

                    1. They probably spend that much in a day or less.

                  4. That's not the government Madison gave us. You would like the government he wanted: the upper house also with proportional representation, but elected by/from the lower house (not directly elected).

                    It remains the government we have. But it is also standard operating procedures for progressives since the time of Woodrow Wilson to lament, undermine, and attempt to change governance structures that were obstacles to achieving their goals. The cognitive dissonance of accusing "those guys" of undermining our institutions even as they themselves were and are doing so hurts my head.

                2. is it safe to say that you reject federalism, reject state sovereignty? You are calling for a monolithic national government, with popular elections for everything? Perhaps the elimination of the Senate?

                  This is nonsense. The Senate has zip to do with state sovereignty on state matters.

                  And the US version of federalism in making national policy is foolish and irrational.

                  1. The Federal government was not expected to make a lot of national policy initially. This is a new thing. And, yes, it is a ridiculously stupid idea.

                    The fix is to devolve the federal government's power.

                  2. Not as foolish as allowing a few mega-cities to dictate national policy.

                    You people want a system for the entire country to implement policies that get even pass in deep Blue regions.

                    No one anywhere implements your much of your policy wishlist.

                    You people want these new federal systems precisely because the Federal Class is unmoored from any voter accountability.

              3. So, there's a few problems.

                1) It's not a "rural - urban" divide, but a small state, large state divide. If you look at % urban by state, many of the smaller states (Rhode Island, Hawaii) have a very high % urban

                2) The reason it's there is structural. The US is a federal union of states. It's not a unitary state, where the Federal Government controls all the power. The states control some of the power, and given that, they have votes to declare how to use that power.

                1. OK, you've explained why you think *this particular set aside* (small states) is a good thing. And proponents of minority voting districts have explained why they think *those particular set asides* are a good thing. But if you support set asides in the Senate, then you have opened the door for set asides in other areas, and so then all you're left with is disagreeing with proponents of minority set asides. You can't say set asides are good when you like the results and bad when you don't.

                  1. you've explained why you think *this particular set aside* (small states) is a good thing.

                    No, he hasn't explained that at all. They never do. He has only described it.

                    1. There are advantages and disadvantages to a federal system of government which includes equal representation for the states in part of the legislature. Here's a short summary.

                      https://www.shivajicollege.ac.in/sPanel/uploads/econtent/a75a70cf93a048abd9051a02a1ad48db.pdf

                  2. So amend the constitution to provide a mechanism for set asides for minority voting districts. Then they will be not only constitutional, but protected by the constitution.

                    1. Weird to see all this arguing when this is most salient point.

          2. Your mistake there is equating "voting power" with "winning elections"; Even in a district where you're the minority, you still have a voting power of one vote, and can exercise it to influence outcomes at the margin, if you chose to deploy it in that manner.

            And there's no rule that says rural voters must be allowed to win, in fact Senate elections are state-wide, and in many states urban voters control the outcomes.

            Democrats tend to focus on low population rural states, and blow off low population urban states. Obsess about Wyoming, and ignore Vermont. The Senate's equal representation of states doesn't inherently favor Republicans, and at times has favored Democrats.

            Finally, there isn't any actual reason Democrats couldn't be competitive in rural areas, if they wanted to be. All it would require is permitting rural Democratic candidates to represent the areas where they live, and not demanding they fall on their swords any time their votes are needed to pass something their constituents don't like. Permit the parties to overlap again, instead of being completely sorted the way they are.

            Being uncompetative in rural areas was a choice, IOW. It isn't built into the system.

            1. Finally, there isn't any actual reason Democrats couldn't be competitive in rural areas, if they wanted to be.

              You mean, if they became de facto Republicans.

              1. Yes, exactly: Democrats could be competitive in rural areas by running candidates rural voters liked, and then not forcing them to violate their campaign promises. They're not barred from running candidates who could win, they just don't want to.

                Just like Republicans presumably could be competitive in urban areas if they were willing to run liberal candidates.

                It's not a crazy notion, you know: There actually used to be such a thing as "conservative Democrats" and "liberal Republicans", and they got elected, too. Democrats dominating cities and Republicans rural areas isn't a structural thing built into the rules, it's a consequence of the decisions the parties made, and they could change their minds any time they wanted.

                1. Yep. Joe Manchin is a good example of this.

                2. Yes, and Republicans could win California if they ran liberals. Your point?

                  1. His point is so what? Why would he care that R’s can’t win CA as conservatives?

              2. "You mean, if they became de facto Republicans."

                Democrats represented the rural states like the Dakotas for decades. It only changed recently.

                Tom Daschle was majority leader only two decades ago. Max Bacus was a US senator from Montana for 35 years until 2014.

              3. They don't have to be de facto Republicans. They would, however, likely agree with Republicans on some (but not most) issues.

                I don't have high hopes of Democrats voting for such people in the primaries; these are the people who recently wanted to boycott Pepsi for donating $15K to the Republican Party of Texas, even though they also donated $25K to the Texas Democratic Party. Seems like it's 100% or nothing for a lot of people on all sides.

          3. I keep seeing this but it's usually phrased as as Wyoming and Alaska cancelling California and New York. Ignoring the fact that Texas and Florida the second and third most populous states have 2 Republican Senators.

            1. rsteinmetz, look at the bottom ten states by population. You can cherry pick Texas and Florida, but if you look at the bottom ten, the GOP clearly has an advantage.

              If I recall correctly, it takes the bottom ten states to add up to California.

              1. 1) Wyoming (Population: 581,075) GOP
                2) Vermont (Population: 623,251) Dem
                3) Alaska (Population: 724,357) GOP
                4) North Dakota (Population: 770,026) GOP
                5) South Dakota (Population: 896,581) GOP
                6) Delaware (Population: 990,334) DEM
                7) Rhode Island (Population: 1,061,509) Dem
                8) Montana (Population: 1,085,004) GOP
                9) Maine (Population: 1,354,522) DEM
                10) New Hampshire (1,377,529) DEM

                So....a 6-4 split? And the next state is Hawaii, another DEM...

                1. Susan Collins is a Democrat? I'm sure she'll be very surprised to hear that.

                  1. And Jon Tester is a Republican?

                    If you're going to quibble, be even-handed.

                    1. If I may be allowed to quibble - the 10 States you listed are 5-5 not 6-4

                    2. You are correct, my quibbler.

                2. If you rank the states from 1 to 50 in terms of Biden's vote margin, the ten least populous states have an average rank of 26. So, it seems like an even split. However the next ten least populous have an average rank of 31. Putting it another way, the most populous state in Trump's best 20 states is Tennessee, which ranks 16th.

                  There is unquestionably a rural bias in Senate representation, which has in recent times become a Republican bias.

                  1. Ah, fun with manipulating statistics....

                    If you do the same thing with % vote for Trump/Pence, the most populous state in the top 20 for Trump is Ohio. Which ranks number 7.

                    If you do the same thing in 2016, the most populous state for Trump in Texas....Which ranks #2.

                    1. By margin of victory in percent, Ohio was the 22nd best state for Trump. By percentage vote Ohio was 20th. That difference is inconsequential. Ohio is a red, but not all that red. The reddest states are clearly less populous. And that's not a matter of manipulating statistics. It's a matter of correctly applying them.

                    2. It's a matter of "selectively" presenting statistics to best represent your case. As I demonstrated.

                      Merely switching from % Margin to % Trump-Pence vote gives a shift from TN to OH. It shouldn't make a difference. But it looks oh so different. Switching years to a normal year where there isn't mass absentee voting (2016) shifts us all the way to Texas...

                      The top two states for vote margin for Democrats in 2016? Vermont and DC. Also two of the smallest states (or districts that have EV votes).

                      The big outlier is really CA. The honest truth is, there's probably a perverse form of voter suppression going on there. I can get into it later.

                    3. Shifting OH from 22 to 20 does not change the overall analysis and conclusion there is bias in favor of small states in the Senate (duh) which currently (but not historically) favors the Republicans.

                  2. It's not really to do with a skew in the population of the various States that vote R or D, it's the margin in each State. The Rs tend to win lots of States by quite modest margins, and the ones they win by a street tend to be small, so they don't waste a lot of votes piling up unnecessary excesses. Whereas the Ds waste a lot of votes piling up huge margins in their big States, like NY and Caifornia, and then waste a lot more by losing Texas and Florida narrowly.

                    Thus the D wasted vote in the four Senate seats currently held by Ds in California and New York was about 13.9 million votes, whereas the R wasted vote in the four Senate seats held by Rs in Texas and Florida was about 700,000 votes.

                    The bad news for the Ds therefore is that they waste a helluva lot of votes in D big States AND in big R States (just like they do in congressional districts.)

                    The good news for the Ds is that the big R States are within reach of flipping, whereas the big D States are not.

                    1. The problem, essentially, is that the Democratic party becomes ever more optimized for totally dominating urban areas, at the expense of doing worse everywhere else. And the more an urban party they become, the less interested they are in making any concessions at all that might allow them a more general appeal.

                      Then they complain that the system isn't set up to allow you to run the whole country on the basis of locally dominating part of it. The system has deliberately been set up to favor parties with broad appeal, not overwhelming local appeal.

                    2. None of the states where the Democrats waste the most votes on a percentage basis (by getting clobbered) are in the top 15 in population. That's describes a skew based on state population.

                    3. Josh : None of the states where the Democrats waste the most votes on a percentage basis (by getting clobbered) are in the top 15 in population.

                      I don't understand what calculation you are performing.

                      1. If you get clobbered in a State, you waste fewer votes, both absolutely and as a percentage, than if you lose narrowly. So Bill Nelson losing Florida in 2018 wasted 4,089,472 votes and 49.9%. Whereas Merav Ben-David losing Wyoming in 2020 wasted 72,776 votes and 26.8%. Meanwhile the GOP winner in Wyoming in 2020 wasted 125,000 votes and 45%.

                      2. In theory - and just about in practice, you can waste more than 50% when you win by a mile - eg Bryan Schatz in Hawaii in 2016 beat the GOP candidate by 51.4%, thereby "wasting" about 214,000 votes - but still not much compared to Bill Nelson.

                      3. California numbers are distorted by the D v D general election run offs, but you could say that you'd expect a GOP candidate to get about a third of the vote in a D v R contest . So the D winner is then wasting about a third of his / her vote, so maybe 3.7 million votes wasted.

                      4. Either way, the big percentages wasted are when you win by a mile or lose narrowly. The big gross votes wasted are when you win a big State by a mile, or lose a big State narrowly.

                      5. As far as small States are concerned, the only three close ones are Montana, Maine and New Hampshire and the Ds have four of those six Senators, so it's the GOP who are wasting more percentage votes in these. As for the other small states, the biggest percentage vote waster in a blowout seems to be Cynthia Lummis in Wyoming.

                      6. In any event, if you are worried about the alleged unreasonableness of US Senate representation not reflecting a national majority of voters (as those who are concerned about the Senate here seem to worry about) wasting a dribble of votes in small States is irrelevant to the national totals.

                    4. I forgot to say that wasting votes by winning by a mile is generally not a big deal. Even if you win 67%-33%, so that you are wasting 34%, your opponent is wasting 33%. So you and the other side are just about quits.

                      The big deal is when you lose narrowly. 51-49, you're wasting 49%, while the other guy is wasting 2%. That's what hurts you in the Senate seats per vote duke out.

                    5. I should have said the Republicans are more likely to run up big margins on a percent basis in small states while doing reasonably well by close margins in many of the larger states (e.g., Florida, Texas and Ohio). That's what is given them the advantage in the Senate, and that's a skew based on population. Putting it another way, the median state in partisan lean is Arizona or North Carolina or Georgia. But those states are all bout about 5%-points redder than the mean of the country.

                    6. Whereas Democrats typically get all of their majority, and then some, in California, by virtue of almost totally dominating its politics.

                      That bouncing the rubble in a single big state only gives them two Senators and a normal proportion of House members is something they find very frustrating, I understand that.

                      But if they were to adopt policies that were a little bit less popular in the People's Republic of California, and a little more popular elsewhere, that majority would give them a hell of a lot more power in Congress.

                      We have a federal system set up to prevent local majorities from running the country. You can't run the country by getting all the votes within 50 miles of the coasts, and doing badly everywhere else, for instance, so that a law levying federal taxes only on areas that didn't border on the oceans would be a non-starter even though a majority of the population would benefit.

              2. Stop with this "bottom ten," "top ten" cherry-picking nonsense.

                Just look at the whole Senate and you will see that Democrats represent a significant majority of the population - around 57%.

                1. Because they have rigged California to have 2 democrats.

                  1. Rigged? By having lots of democrats live there?

                    1. Jungle primary. Ballot harvesting.

                    2. I like how California is both filled with out of touch liberals conservatives don't want to be run by, but also there is some massive amount of conservative sensibility that has a true majority of the state that those darn liberals won't let get to the forefront through "jungle primaries and ballot harvesting."

                      I mean...if conservatives actually had even close to the power they thought they had in California right now, Larry Elder wouldn't have been so thoroughly crushed in the recall. There's no rigging: a significant majority of Californians think conservatives suck right now and it's reflected again and again at the polls.

                    3. Bob, so suppose California changed its primary system. Do you seriously think a Republican is electable from California?

                    4. Explain Orange County flipping Blue.

                    5. Bob, if you were realistic about California politics, you'd realize the jungle primary is the best chance you have to inch California to the right.

                    6. @LTG

                      Part of the problem is that in states seen as lopsided one way or the other by the national parties, the state parties get taken over by the crazies and have no adult supervision.

                      I suspect a moderate republican (think a charismatic hispanic war hero) could win a statewide election in CA. However the CA republican party has no interest in finding and developing that guy.

                      And the CA Democratic party has no interest in putting up candidates that can take the next step on the National stage, so you get unlikeable incompetents like Kamala Harris, or entitled d-bags like Gavin Newsome.

                    7. Even 538 thinks California is still gerrymandered. The 'independent' redistricting org wasn't remotely independent in practice.

                    8. Explain Orange County flipping Blue.

                      Like in many suburban areas across the country: many people in previously reliably Republican strongholds voted for Democrats/Biden as a rebuke of Trump and Trumpism.

                    9. I do agree with Ridgeway that California being an effectively one party state has been bad for it.

                      But I think a jungle primary gives hope to some kind accountability, versus putting up a Republican who has zero ability to hold Democrats to account in CA.

                    10. @LTG

                      And Orange Country flipping blue had nothing to do with the new CA ballot harvesting rules?

                      Why do you trust ballots being handled by a series of political activists?

                    11. "Why do you trust ballots being handled by a series of political activists?"

                      Well, duh: They're his political activists.

                2. Don't tell me that. Krychek brought it up.

          4. They're not even remotely equivalent. Rural voters aren't allowed to win, they are merely overrepresented relative to their population. The Constitution mandates this result for small states.

            A supposed legal requirement to draw majority black districts has nothing to do with proportionate representation.

            1. Yes it does. A majority black district says that blacks are entitled to representation proportionate to their numbers in the population.

          5. Classic whataboutism K-2.
            How are they different: One is chiseled in stone, the other is a succession of opinions
            So get off your hobby horse and state an "Abolish the US Senate" amendment.

            1. Pointing out inconsistency is not whataboutism.

              1. I like how you believe black people should only be represented by black people.

                As if that’s all that matters.

              2. There is no inconsistency except in your mind.
                The Senate is a boundary condition, unless you get your amendment process underway. The district drawing is a repeating practical problem. Very different.
                Moreover, to you complaint about the US Senate, many would say that it is a feature not a bug, and that your preference for complete democracy is hhardly to be accepted blindly.

                1. to you complaint about the US Senate, many would say that it is a feature not a bug,

                  True, but their arguments don't make much sense.

  5. Alabama down, next up North Carolina?

    1. Actually, Tennessee, then Louisiana.

  6. Long story short, single-member districts are awful for many reasons, one of which is that you end up with neverending arguments about gerrymandering.

    (Although for my money you could just enact a rule that requires the districts to be mapped in a way that equalises their population within x% margin while minimising the total length of the borders of the districts.)

    1. It is probably computationally impractical to check whether the total border length is actually minimized. (As a side note, that is only one way to measure compactness.) Any slop in a compactness metric, though, it permits a lot of compact districts that violate the current interpretation of the Voting Rights Act in terms of majority-minority districts, or that violate other community-of-interest standards. There is enough fine-grained population information available that a computer could rig maps quite thoroughly, and a compactness metric alone would probably not reveal it. The maps would not show gerrymanders, but they could easily exist.

      And contrary to your point about single-member districts, multi-member districts mean that representatives see themselves more as members of a particular party than as representatives of particular individuals. If my area is represented by five people, all of them could decide that my problems are not *their* particular problems. In a single-member district, there is no argument over who is supposed to represent me.

      1. It might be impossible as a practical matter to prove total border length had been globally minimized, but as a practical matter it's quite easy, computationally, to produce maps that are for all practical purposes as compact as can be, in the sense that any marginal change increases border length. They are, at least, local minimums. And if you generate enough random maps, and optimize them, the odds are that you will have found the global minimum, even if you can't prove you have.

        The problem is that the current interpretation of the VRA mandates gerrymandering. That's the bald truth. They're mandating racial gerrymandering, but not too much, please. Of course it gets arbitrary and complicated, and shades into partisan gerrymandering given the correlation between race and party.

        My proposal, as I've suggested before, is to computationally generate many thousands of maps that comply with the compactness and equal population criteria, without any reference to past voting patterns or ethnic/racial data. Then use a process similar to voir dire to eliminate the ones the ballot qualified parties dislike the most. If you have N ballot qualified parties, each gets to eliminate 1/(N+1) of the maps, on any basis they chose.

        Then just pick from among the remaining maps using a bingo cage, in public.

        No rigging in this proposal, and no gerrymandering, either. Be hell on incumbents, but I view that as more of a feature than a bug.

        1. Doesn't your proposal require each party to fully order the maps for elimination? Presumably they would take turns disqualifying maps, but you can't do that with much time per map, and there is likely to be overlap in different parties cancellation lists (especially when N > 2).

          And doesn't that provide even more incentive for big parties to ensure that small ones cannot qualify for the ballot?

          I'm also curious how strategy informs the ordering of the disqualification lists. "We don't like this map, but party X will really hate it, so we put it ___."

          1. No, under my proposal if more than one party wanted to rule out a particular map, they'd be free to, the number of uneliminated maps would just be a smidge larger.

            No doubt there'd be some gaming as you suggest, but every party would have the opportunity to eliminate the maps they disliked the most, and so no basis for complaint.

            1. I imagine the parties would likely pay for someone to write a program that automatically provides them a list of which maps they would want to eliminate based on a criteria they input.

      2. The burden of proof would be on a plaintiff to come up with a map with shorter total borders.

        1. Given granularity, compactness and equal population start to conflict if you attempt to totally optimize one or the other. You have to pick one to win, and it has, I think, generally been equal population.

        2. I can pretty much guarantee that will be possible. Redistricting has to be done within a short time, but challengers have ten years to find a "better" map.

          1. It doesn't exactly strike me as a non-P complex problem, so as long as the person doing the redistricting has a computer of some sort, they'll be fine.

            1. It's similar to the bin packing problem, except harder in some ways, and bin packing is NP-hard.

            2. It's a genuinely hard problem to find the best solution for, and prove it, it's a fairly trivial problem to find a reasonably good solution for.

              1. Just like the government doesn't have to literally make sure that the census counts every single American, drawing an acceptable district map also wouldn't require perfection.

                That said, I'd imagine that the granularity is such that the number of conceivable maps is not particularly large compared to what a computer can handle. Even if you simply decide that households all go in the same district, and/or that individual plots of land aren't somehow divided over different districts, you can combine that with a halfway sensible computer programme to solve for X in minutes.

                1. Consider the E edges in the adjacency map for the N land units being assigned to districts. Each edge could represent being part of the same district or not. Some large fraction of the resulting maps will violate the constraints, but there's still some reasonable fraction of 2^E combinations for E edges, and E will be several times as large as N. The four-color map theorem suggests that the number of combinations will be something like 4^N.

                  Precinct sizes vary widely in the US, but Wikipedia says the average size is about 1100. It takes roughly a million people for a state to get a second representative (and thus need to worry about this), so N is at least 900. There may be some clever approaches for the cases of two or three districts, but the limit of brute force is under 2^80 combinations.

                  1. That's what I meant by "halfway sensible": Not brute force.

                2. I'd be a bit less optimistic that this is a a quickly solved problem.
                  But as long as one has a way to randomize starting seeds for the drawing and sets a fuzzy criterion, I expect that some algorithms can be written to produce say 1000 maps in a few days. These can be presorted by a post-processor so that all satisfy the compactness criterion within,, say ±2%. At that point Brett's voir dire could be applied.

                  1. This was the paper that inspired the idea: Evaluating partisan gains from Congressional gerrymandering: Using computer simulations to estimate the effect of gerrymandering in the U.S. House

                    They approximated the precincts as squares, for purposes of their calculations, but it wouldn't render the program impossibly more intensive to use their actual shapes.

                    If you go down to figure 3, you can see that it's fairly easy to pick out the states that have been gerrymandered. (For partisan effect.) Figure 4 splits the states up according to who was in control of redistricting, and you can see the party effect pretty clearly. (You can also see why Democrats really, really did not want to give states in pre-clearance back the right to draw their own maps!)

                  2. "I expect that some algorithms can be written to produce say 1000 maps in a few days."

                    I think maybe you're behind the times a little on how fast computers are. Might have taken a few days back in the 70's...

                    1. Brett,
                      I am not behind at all (well maybe by a year).
                      Many problem that my colleagues do take massive amounts of computing time. Some are still not practical at the Exoscale. Your problem is not so easy. The hope is that the a broad set of good enough "solutions" could be produce as a learning set for an AI system to apply as a template for specific states.

                    2. Chen and Cotrell were doing that almost a decade ago, and it didn't take a supercomputer.

          2. There's a very simple solution to the aggregate border distance minimisation problem.

            First you set the equal population constraint - eg no more than 0.5% difference in population between districts.

            Second, instead of trying to get a mathematically minimised aggregated border distance, you allow different people to submit district plans. Who the people are is a matter for discussion, but it might be say - any sitting member of Congress in the State, the Governor, or any member of the State legislature for example. That will give you not N theoretical maps) but, say, 72 actual maps. Or probobaly only about a dozen.

            Then you just pick the map with the shortest aggregate border distance, and check that it meets the specified requirements - eg how to count water boundaries, no hopping across corners etc. If it passes those map drawing rules it wins. If it doesn't you move on to the map with the next lowest aggregate. You have a tiebreaker rule for actual ties - eg flipping a coin, or a timed downing of eleven beers or whatever.

            This gives the computer a very easy task. It's the people submitting maps who have the hard task of trying to squeeze a better (for them) map into a shorter distance, for which they will no doubt need serious computers and large brains. But the computer that judges who's won only needs to work for about a minute, then it can put its feet up for another decade.

            PS you do need to look out for politically motivated folk taking over map making companies, so as to fiddle the distances that get input into the computer.

            1. Admittedly your proposal has a certain "One person cuts, the other picks" elegance to it; Use any criteria that are political, and you're likely to be beat by a map that didn't.

              The reason I chose a bingo cage to do the final pick, with the whole set of maps, and the list of maps rejected by each party being public, is transparency; Less chance of people claiming the computer was rigged.

      3. In a single-member district, there is no argument over who is supposed to represent me.

        No, but whether they actually will may well depend on whether they think you might vote for them, which doesn't seem ideal. (To put it mildly.)

        Also, I would reject the underlying assumption that your representative is supposed to represent you like an advocate, rather than make sure that the best laws are adopted to promote the public interest as they see it.

        1. "Also, I would reject the underlying assumption that your representative is supposed to represent you like an advocate, rather than make sure that the best laws are adopted to promote the public interest as they see it."

          Sure, but if democracy works properly, the representatives have roughly the same conception of the public interest, and what sorts of laws are best, rather than conflicting views. If the representatives are persistently determined to give the voters something they don't want, something isn't working right.

          1. Like mass third world immigration, for example?

          2. America has enough internal disagreement about policy and values, I really don't buy the 'immigration will break our culture' nonsense.

            Plus that fear immigrants not having American values has been an old racist trope since the Know-Nothings.

          3. if democracy works properly, the representatives have roughly the same conception of the public interest, and what sorts of laws are best, rather than conflicting views.

            I don't see why that would be so. The whole point is to have a wide range of values represented, to reflect the pluralism of society.

            1. You'd pick representatives by sortition, if that were your goal. They're supposed to represent the majority, not everybody.

              1. I would, if I knew how to sort people by opinion.

                And no, the representatives together have to represent the people, not the majority.

                1. "Sortition" is random selection.

                  1. Oops, and that would work for me, except that I think being a representative requires some skill/knowledge/experience, and that people should be able to opt for a different career path if they want to.

                    But for some situations, I'm absolutely in favour of getting input from a (large-ish) group of randomly selected citizens.

        2. Representatives don't have the bandwidth to advocate for every individual in their district. They do have the bandwidth to listen to problems and use that to inform their sense of "the public interest". The question is how they determine whether a given individual is part of their public.

          1. This kind of statesmanship is no longer what Reps do, though.

            1. They don’t have to because they have a > 90% re-election rate no matter what they do.

          2. Typically they use their limited bandwith to listen to the problems and desires of those who are* giving them money. This does not need to be their actual constituents.

            * though the present tense is for amateurs. As a sage once said :

            “The great grafter does not buy government officials after they are elected, as a rule. He owns them beforehand”

        3. "would reject the underlying assumption "
          actually she is supposed to do both, otherwise there is little reason to have districts in the first place

          1. Well yes, that's what I started with.

        4. Making laws is probably the least of what most representatives do, constituent services is incredibly important.

          1. It also helps them get votes more than any lawmaking probably does.

          2. I'm sure it is, but it shouldn't be. It's just legalised corruption/vote buying.

      4. And contrary to your point about single-member districts, multi-member districts mean that representatives see themselves more as members of a particular party than as representatives of particular individuals.

        But that's what happens today.

        1. I know. That's part if why I described single-member districts as awful. They encourage the "lawyer model" of political representation.

    2. I think the big cities should have multi-member districts.

      The proposed rule probably will not work as stated, but you can probably define a standard by which some incremental changes to district boundaries are legally considered superior. Such a rule needs to be really clear and impossible to ignore. In Massachusetts cities and towns are not supposed to be split across districts if doing so could be avoided. The Supreme Judicial Court decided it would not enforce that provision. A political question. Once the legislature pulled just one precinct of a town into another district. The purpose was to put the Minority Leader's girlfriend in the same district as the Minority Leader in case he wanted to move in with her.

    3. What's the big deal about border length?

      1. Salamanders are long squiggly creatures with lots of spindly bits reaching out in all directions. Districts shaped thus - except where the shape simply follows a coastline - take that shape because someone has added the squiggles for political advantage.

        NY's 10th district is the 2022 winner so far :

        https://twitter.com/ZackFinkNews/status/1487926980636987397

        The minimisation of border distance is a purely mathematical - ie non-value laden - way to eliminate those political squiggles. The shape with the shortest border for any given area is a circle. A circle has no squiggles at all. Even a square is squiggly compared to a circle, and has a longer border for the same area.

        Aggregate border minimisation therefore represents a rule which eliminates gerrymandering. Any squiggle you try to introduce for political advantage will lengthen your aggregate border length compared to a competing unsquiggled map.

  7. Why even have trial courts? Seriously, what was the point of all that fact finding by the three judge district court if SCOTUS is just going to immediately throw it out with an unsigned order? What was the point of getting all that work done at a very quick pace to ensure a reasoned decision with plenty of time for Alabama to remedy it before the election? And it’s not like this particular panel was a bunch of crazy liberals: two Trump district court appointees in Alabama and a Reagan/Clinton Circuit appointee. But SCOTUS just gives them the finger. They’re getting more comfortable with this sort of thing and it might bleed into “run of mill” cases. How long before they start staying circuit court decisions in random civil cases whenever some crackpot theory gets five maybes? Are we gonna get stays in ERISA cases because Neil Gorsuch decided it’s unconstitutional now and convinced four other justices that might be true?

    1. The worst thing about the recent actions by this Court is not the substance of the decisions (which people can argue about).

      It's the process. Regular process that leads to decisions you don't like is bad, but irregular process that leads to decisions you don't like is what leads to (often correct) accusations of illegitimacy.

      At a certain point, people begin to believe that the thumb is on the scale, and instead of following the law, the Supreme Court is simply a counsel of guardians reaching out to correct what it thinks are the problems of the country ... or, you know, whatever has 5 of them miffed enough about from their own echo chambers.

      1. I agree with you...in theory. In practice, I'm not seeing it.
        The damage is being done in flashier ways like the nomination process.

        One could argue the current view of the Court is already too low for this kind of abuse of process to make a ripple.

        1. It's everything. It's compounding error. It's the nomination "process." It's giving trollish speeches at partisan functions with a wink and a nod saying you're not a partisan hack. It's giving secret speeches at even more ridiculously partisan events (seriously: Gorsuch is at an event with Kayleigh McEnany). It's lashing out at journalists for even daring to question them. It's the aggressiveness of the shadow docket. It's the aggressiveness to undo everything they always wanted to undo immediately. It's the "textualist" judges suddenly not caring about textualism at all (see Gorsuch joining Alito's California v. Texas dissent or his citation to non-binding Senate Resolutions in the vaccine cases). It's originalists who just get to ignore scholarship that contradicts them because they don't need to even pretend to care (non-delegation). It's having a standard-less concept like "the major questions doctrine" that can be applied to anything they feel like for any reason.

          It's the increasingly crank positions that get 2 or 3 votes that just get floated out there like it's totally normal (Pennoyer was right, Gideon was wrong).

      2. They’re following the law. But they’re following what it’s going to be as soon as they get around to writing it. That’s an important thing in the shadow docket cases: they’re granting stays or denying them based on how they think they’re going to rule in the near future not based on what precedent actually is at the moment. It doesn’t matter if the fifth circuit ignores controlling precedent. It doesn’t need to be stayed because scotus is gonna get rid of that precedent anyway. Conversely, the district court must be stayed even though it followed precedent because they’re thinking about getting rid of those soon too.

        1. Yeah, that's a good point - it may not matter to the People, but the lower courts are sure watching this kind of nonsense.

          1. It almost (emphasis on almost) makes you want to have federal judicial elections. I’ll say this for judicial elections: sometimes good judges and lawyers can get onto a higher court because they’ve seen some crappy decisions from those courts and they decide to run to make it better, and then they do.

          2. LTG is exactly right. This is the issue. There is no predictability.

            And it encourages the lower courts to just make stuff up. Seriously- the three judges on that panel worked their behinds off to get this done, and get it done correctly. Why even bother?

            This problem has been accelerating for some time. There is no longer any guarantee of regular procedure with the Supreme Court. And don't think that the litigants and the COAs and the trial courts haven't noticed.

            1. "There is no predictability."

              Slightly disagree with this part. It's true there is no predictability using the norms and rules of how SCOTUS operated for the decades prior to 2018-2020. It's not predictable in a "legal" way.

              But there is some predictability regarding how they operate just using rough partisanship as a guide. (Oh and state's appeals of execution stays. The stay is always lifted no matter the issue, no matter how thoroughly the conservative court below addressed the issue and still granted a stay. That's a rule now apparently.)

  8. Let me know when an appeals court rules against a blue state. Maryland being an egregious example. Until then, a pox on the appeals court judges houses.

    https://en.wikipedia.org/wiki/Maryland's_3rd_congressional_district

    1. I mean, people could bother to explain the legal issues regarding gerrymandering to you. And how this was largely driven by GOP (and explicitly so). And how the Supreme Court opened the floodgates to more extreme partisan gerrymandering.

      Further, they could then try to tell you that this most recent cycle has had issues regarding the extent to which Democrats in "blue" state would try to ramp up their efforts to match what the GOP has been doing for well over a decade (for the most part, they have, but it remains controversial).

      Finally, it could be explained to you why this particular issue regarding redistricting and race remains as part of the law under the VRA, authorized by the Constitution (14th Am.), so it's necessarily going to pop up, and that it's become more of an issue due to even more extreme gerrymanders that are occurring- but, to date, this seems to be more of an issue with the way the GOP is doing it than Democrats (because the GOP, often in the South, is trying to deliberately dilute minority votes since they are Democratic- that's the whole rationale ... "It's not because they're black, it's because they're Communists ... sorry,. Democrats.").

      But actual facts don't seem to matter, do they?

      1. I would argue that modern gerrymandering started with the idea of super majority minority districts which created safe Democrat seats.

        I could also suggest that districts that more closely reflect the general population of a state would tend to moderate the divisiveness we see now. more members would be inclined to consider the minorities in their districts.

        1. You want at-large districts?

          I like the idea of 7 computer generated randomized equal-pop square districts and each party gets to discard 2 and then the remaining three are chosen randomly.

          But for now it's dumbass procedural warfare.

          1. At large districts for House seats are not compatible with the Constitution, but from a policy perspective, they'd be excellent, as they'd prevent all the corrupt, low IQ blacks in the 35% black states like South Carolina from being elected.

            1. At large districts are perfectly compatible with the Constitution. They've been outlawed by federal statute because incumbent politicians elected in single district seats don't fancy their chances of keeping their positions under a radically different system.

              1. I think at-large districts would be just fine.

          2. Why do we still have geographically-defined districts? Let every voter in a state decide which district to be in. That would make the elections more interesting, with each side trying to maximize its clout, which would require attempting to anticipate which districts voters in the opposition party would choose to vote in. The suspense would be wonderful, the second-guessing and the rumor-tracking and so on. Heck, off-season elections might actually be ...[gasp]... interesting!

            1. I have no principled objection to that, just policy concerns.

              I don't think the associated gamesmanship would be very interesting at all. I don't need extra suspense in our elections lol.

              Moreover, I think specially anchoring districts makes picking poll places easier.

            2. I don't understand how that would work.

        2. I would argue that modern gerrymandering started with the idea of super majority minority districts which created safe Democrat seats.

          I don't think so.

          First, I'm not sure what you mean by "modern" here, but I'd guess that the advent of sufficient computer power, and data, to make very precise gerrymandering possible had something to do with it.

          Those may have been contemporaneous, of course, but there was always an incentive to gerrymander.

      2. Further, they could then try to tell you that this most recent cycle has had issues regarding the extent to which Democrats in "blue" state would try to ramp up their efforts to match what the GOP has been doing for well over a decade (for the most part, they have, but it remains controversial).

        Democrats have been doing this for well over a Century. The Republicans are trying to catch up. Do look at the 3rd district link. That was drawn a decade ago by the Democrats.

        because the GOP, often in the South, is trying to deliberately dilute minority votes since they are Democratic- that's the whole rationale ... "It's not because they're black, it's because they're Communists ... sorry,. Democrats.").

        Do you think the GOP would dilute their vote if they voted Republican? If yes, what reason would they have for doing so? It would be against their interest. If no, then it is simply as stated a matter of diluting the Democrat vote...the same as Democrats do.

        By the way, nice attempt to slander the Republicans for the Jim Crow actions of the Democrats.

        But actual facts don't seem to matter, do they?

        Agreed, you do seem to be ignoring facts.

      3. lol @ R’s starting gerrymandering. How the hell do you think D’s held them House continuously for over forty years?

      4. Further, they could then try to tell you that this most recent cycle has had issues regarding the extent to which Democrats in "blue" state would try to ramp up their efforts to match what the GOP has been doing for well over a decade

        The district he linked was just as gerrymandered after the 2010 and 2000 censuses, so you can't blame anything the GOP has done in the last decade for that.

    2. The liberals on the court literally wanted to ban partisan gerrymandering as unconstitutional 3 years ago, in a case involving Maryland. You can thank the conservatives for the fact that partisan gerrymandering is still permitted.

      1. IIRC gullible people thought that the Maryland issue was making an impression upon Roberts/Kavanaugh. It'll be hilarious if the justices' private papers one day reveal they were trying to figure out a way to come up with a principle to strike down blue state maps and uphold red state ones but then gave up because that was too on the nose. I'd put a decent wager on some Gorsuch clerk writing a memo to that effect.

      2. Are you talking about Benisek_v._Lamone? The opinion is per curiam. I can find no information regarding how the judges voted.

          1. Thank you.

            Looking over that, it seems the trouble is determining a test for the limits of what is permissible vs what isn't. An interesting problem and one I hadn't considered.

            If we could mandate a process, I like the ones mentioned above that require a minimum border length. Unfortunately, that would require an amendment.

        1. As Josh R noted- Rucho.

          1. Reading over the briefing, how would you solve the problem of determining what is vs what isn't a partisan gerrymander?

            1. You can draw maps with very neat borders that are horribly unfair- Ohio's maps, before the state supreme court got to them, were just as unfair as Illinois' new maps, even though the Ohio ones look pretty and the Illinois ones look like a bowlful of spaghetti dropped on the floor. And some states, because of their political geography, have a partisan lean by default- California's new maps, by many tests, aren't a partisan gerrymander, because a lot of the state's Republicans are interspersed in Dem leaning precincts (not even counties- precincts!), so you can't make a map that gives Republicans a good chance to win 1/3 of the districts. Wisconsin is similar; it is gerrymandered, but even a fair map would still be 5R-3D in a 50-50 year, because Wisconsin has more R leaning suburbs and rural areas that are less R leaning than many other states, so it's quite hard to draw a map that would've been 4-4 in 2020.

              Me personally? I happen to agree with a number of the briefs that propose mathematical solutions- some combination of mean-median, efficiency gap, etc. You know, decide on a test (if you read the Alabama case that the court stayed, they used some of these measures But the Supreme Court has decided that it is allergic to math, so it decided against using those tests.

              1. I personally think that you might have seen an anti-gerrymandering ruling out of the Court if the Democrats had played it straight. Enough Republicans despise gerrymandering that you'd have had bipartisan support for a neutral test that would have stopped BOTH parties from engaging in it.

                But they were too intent on asking for a gerrymandering test that essentially mandated gerrymandering in their own favor, by requiring that the results of political geography be treated as 'gerrymandering'. A test that would only stop Republican gerrymandering. So they got no bipartisan support, and it became too obvious they were just looking for a political advantage using gerrymandering as an excuse.

                The Court majority just threw up their hands and decided to treat the topic as a political question.

  9. By the way, I will say this- I do appreciate that Blackman comes close to acknowledging that Kavanaugh completely whiffed on the Purcell analysis. That might be the stupidest thing a Supreme Court Justice has written recently (and there's a lot to chose from).

    But, of course, Blackman then has to justify it by pointing to Kavanaugh's rental decision with a snarky comment? Because ... oh, nevermind. Who knows?

  10. I wonder if Roberts thinks things are different in the South now, as he wrote in Shelby County?

    1. The fact that blacks bloc vote for Democrats 95% of the time is the surest proof that giving them the right to vote was a mistake. Since it was a mistake, legal acts taken to suppress that vote are justified.

      1. If the Volokh Conspiracy is good for anything, it is attracting right-wing bigots like a supermagnet.

        If it is good for anything else, that point seems to be obscured.

    2. I suspect now that Roberts knows his vote is not necessarily needed in order to carry on his life’s work, he can focus on muddying up his legacy.

      1. How should the Court's conservatives react when Court enlargement relegates them to a career of authoring bitter, strident, largely irrelevant dissents?

        1. How will you react when that never happens lmao

          1. Still counting on that great Clinger Revival, when bigoted right-wingers finally stop getting stomped by the liberal mainstream and actually reverse the tide of the culture war, XD?

            You're more likely to witness the Rapture.

            And that's a fairy tale.

            1. Conservatives have gotten a 6-3 majority without doing any of that yet apparently they have to do it to maintain that majority? you're a moron lol

  11. My take is the supreme court tolerated a lot of tinkering in elections prior to 2020 elections from the lower courts and is signaling to knock it off this time around.

  12. I would like to welcome to my world, thinking that the Supreme Court is an un-elected legislature ["counsel of guardians"]. I mean its 40 years late but welcome anyway.

    Pity you didn't realize it until it started to bite you.

    1. What are you talking about, Bob?

      I've been beating the judicial minimalism drum since I first came here. I'm not the one who has changed on this ... far from it.

      Here's a quote from in 2011 on this website ... you know, during the Obama years ...

      "Let me expand on that previous thought in case you're not following it-

      There was a movement by the left in the 60s/70s to constitutionalize everything. Everything had to be a constitutional right. Institutions had to be micromanaged by courts to make sure they were in compliance with the Constitution. There were a proliferation of rules and exceptions to the Constitution that had no foundation in the text to embody what the left thought the Constitution should guarantee.

      Then the right struck back. Now, some things we can quibble over. The ahistorical and atextual continued re-writing of the 11th Am. The use of prisoner litigation to put new "rules" into the Constitution. But overall, they did one great service- they decreased the role of the judiciary. They made the idea that the proper place for deciding many questions was the political branch. For whatever faults there were, this was a great and valuable advance. As the hubris of the left washed up on institutional change and the "right" to education, this made a major difference.

      Now the right seeks to make the same mistake. What they cannot accomplish through the political branches (the implementation of their ideology) they seek to gain through the judicial branch. To have a council of guardians enforce their ideology and their view of what is correct. To not allow "silly" laws. To constitutionalize political disagreements.

      In effect, they are seeking to undo the best thing they have accomplished. This is a norm they have successfully internalized into many practitioners and judges on both sides of the ideological spectrum. And for what? For temporary political respite. Without undoing the entirety of the law (which is inconceivable given our electorate), any victory will just mean that at some point in the future, when health care comes up again, it will have to be single payer. Or paid for through an income tax called as such.

      That, IMO, is a bad trade-off. Better to work to repeal it."

      1. Sorry I didn't recall a comment you made 10 years ago.

        That you did is both impressive and a little weird.

        I think you might admit that your attitude is a minority liberal attitude. Most liberals were quite happy with a liberal activist court. A conservative one is different somehow to them.

        1. I encourage the conservatives to do their damnedest while they have the chance.

          I also encourage them to try to develop enough character to handle the reckoning that will continue to be imposed on our vestigial clingers by the modern mainstream.

          Time will sift this, and not in the conservatives' favor.

          1. Care to operationalize this with concrete, testable political predictions? Or do you prefer idle masturbation? I think I can guess.

            1. Better Americans will continue to win the culture war, shaping our national progress against the efforts and wishes of conservatives. Conservatives will continue to lose ground on gay-bashing, White nationalism, immigration, superstition (prayer in school, creationism in science classrooms), racist gerrymandering and voter suppression, environmental protections, consumer protections, and other issues.

              I predict Republicans will pay a predictable price for their bigotry in an American that becomes less racist, less rural, less religious, less homophobic, less xenophobic, less backward, less misogynistic, less superstitious, etc. every day.

              Republicans will continue to lord over our ignorant, economically inadequate, poorly educated, religious, bigoted backwaters for a while longer, but they are being painted into smaller, more desolate corners of America as those backwaters empty (dying industries, bright flight, declining communities, dysfunctional economies).

              1. None of this is concrete lmao

                Give a timeframe, give actual political predictions. When will R's next lose the Senate after 2022? When will they lose a majority of governorships or statehouses? Etc. Nothing you have said is remotely testable.

                1. I expect they'll hold onto the Senate until 2026, if they gain it this year; Another two years of Biden/Harris are hardly going to sour the voters on Republicans, but if the GOP takes the Presidency in 2024, the opportunities for disappointing the voters are legion, and the smart money is always on the Republicans blowing it.

                  OTOH, if they're stupid enough to put McConnell back in a leadership position, I could definitely see them losing the Senate in 2024.

        2. This is why making assumptions of bad faith can get egg on your face.

          1. Have you wiped off all the egg from your repeated errors of military fact yesterday?

            1. I have - admitting you're wrong can actually help with that.

  13. I thought States were supposed to control their own elections not federal judges.

    1. 14A says otherwise since Baker v. Carr.

      Are you coming out against one person, one vote?

      1. That's coming next. There will almost certainly be a concurrence/dissent in the next few years from Gorsuch/Thomas that Gomillion, Baker, and Reynolds were all wrongly decided and that nothing in the Constitution requires equal apportionment in legislative districts or prohibits explicitly race based redistricting practices.

        Ed Whalen thinks Reynolds is "liberal judicial activism."

        https://www.nationalreview.com/bench-memos/day-liberal-judicial-activism-june-15-ed-whelan-4/

        1. From your lips to God's ears.

          Btw, "explicitly race based redistricting practices" is what a VRA [or majority/minority] district is. Explicit use of race to re-district.

          1. "From your lips to God's ears."

            So you're okay with having one person legislative districts? That wouldn't violate equal protection? Because at the time of Reynolds New Hampshire had a 3 person district.

            Also you don't really believe this and you don't want this. You're not so flagrantly moronic to think that would be legal or a good idea.

            1. "New Hampshire had a 3 person district"

              If you say so. I'd have to know why it only had 3 voters. Might be a good reason, an island perhaps. What were the size of the other districts?

              NH has a gigantic legislature, one rep for 2400 adults in 2020, obviously far fewer in the 1960s. Plenty of representation even if one district is very small.

              There is nothing in the equal protection clause that requires equal sized districts. That is what makes it activism.

              As usual, Justice Harlan got it right in his dissent.

              1. “I'd have to know why it only had 3 voters. Might be a good reason, an island perhaps. “

                Troll. A clownish one at that. You don’t actually believe that, cut the crap.

                “There is nothing in the equal protection clause that requires equal sized districts.”

                Except for the fact that the law is treating people equally. There’s no equal protection if some voters have way more power than others.

                1. I don't believe there was a 3 voter district, I was just politely not calling you a liar. You were given the opportunity to present evidence, instead [as usual] you just launch a dumb insult.

                  Equal protection has nothing to do with equal district size. The next Congress after passage of the amendment approved state constitutions for the reconstructed states that did not have such districts.

                  Nor did anyone think it for nearly a hundred years.

                  Reynolds [and Baker] was just a power grab by a rogue court.

                  1. https://speccoll.library.arizona.edu/online-exhibits/files/original/11ac559f0063813f0a80bed401b4597f.pdf

                    Has it ever occurred to you that I'm not a liar and am simply much better informed and much smarter than you?

                    Also: you deserve every insult. You are a troll and a clown with demonstrably low morals.

                    1. Your link confirms that requiring states to obey their own constitutions or the federal constitution was relatively well accepted, and the real controversy was when the Court imposed on the states a requirement of equal population in their own legislatures even if it ran contrary to the state constitution.

                      "At this point "the fat was really in the fire." Note that in these "Third Ruling" cases there was no claim (as in Baker) that any State legislature had violated its own constitution. The people of these States had deliberately written constitutions allowing non-population factors in apportioning one or both houses. Nor was there any claim (as in Wesberry) that the State legislatures were interfering with proper representation in the Federal Congress. These cases involved interference with the manner in which individual sovereign States had chosen (some long ago, some like Colorado very recently) to apportion their own legislatures."

                      I don't think I'd ever argue that states were entitled to violate their own constitutions, or the federal Constitution where it actually has something to say. I'd simply argue that nothing in the federal constitution mandated the result in Reynolds v Sims, and that, absent some actual constitutional basis, the states had to be free to arrange things as they wanted.

                    2. He accused me of lying about a three person district. I was not.

                    3. Yeah, that's why I didn't challenge that part, but instead just commented on the Reynolds v Sims not being nearly as widely accepted as the other two rulings.

        2. It was a bit of a joke, in terms of legal reasoning, that the Constitution somehow forbade states from setting up their own legislatures in exactly the form the Constitution set up the federal legislature.

          On a policy level it's a closer question; The federal government IS a federation, with the states separate sovereigns with substantial reserved powers and areas of jurisdiction, while states are generally organized as unitary governments with any subdivisions being merely administrative, not independent.

          But, absent a clear constitutional mandate, that policy question should have been decided at the state level.

          On the other question, the conservatives on the Court are actually more likely to rule against explicitly race based redistricting, against the deliberate gerrymandering of "majority minority" districts.

          1. Do you think a state could have 99 1 person districts and 1 district with the rest of the state population and not violate the equal protection clause?

            1. Yes, I actually do, because it's the "equal protection of the law" clause, it forbids the practice of outlawry, and related evils, not anything that might happen to situate people differently.

              The federal Constitution is largely silent on the internal organization of the states, aside from a general guarantee of a "republican" form of government, as is only proper for a federation of sovereign states, the originals of which pre-dated the Constitution itself.

              There are a whole host of evils that the Constitution doesn't forbid, Lawtalkingguy. They may still be evils, but they need to be forbidden in state constitutions.

              1. A republican form of government generally means that the people govern themselves through elected representatives. It is what most people mean when they talk about democracy. Those that whine about the U.S. being a "constitutional republic" and not a "democracy" are like those that would insist on their vehicle being called a "sedan" instead of a "car".

                To claim that Lawtalkingguy's extreme example wouldn't violate either Equal Protection of the Guarantee Clause makes a mockery of both. If the people have the power, then they have to be able to vote out a government that they don't like. If that government can manipulate the drawing of districts to the point where a majority of voters can't elect a majority of the representatives, then that isn't true anymore. It may be difficult to determine when gerrymandering has gone too far, but most GOP appointed Justices seem to want to ignore the issue entirely as a "political question." They are essentially arguing, absurdly, that the people being deprived of voting power can somehow punish the state legislators doing that to them. I can only surmise that it is because the practice has been used much more effectively by Republicans than Democrats since the 2010 census.

                "...as is only proper for a federation of sovereign states, the originals of which pre-dated the Constitution itself."

                First, if the status of states prior to the adoption of the Constitution matters, then it would only matter for 13 states, since every other state was added to the Union through the Constitution. Second, I would argue, and I have before, that by ratifying the Constitution (or the Articles of Confederation, for that matter with its declaration of a "perpetual union"), states gave up any future claim of sovereignty. A federation of sovereign states, that could unilaterally leave that federation, among other ways of asserting their sovereignty, simply isn't what the United States is. The Constitution and federal laws and treaties adopted under the Constitution are the "supreme law of the land".

                The idea of "dual sovereignty" is basically an oxymoron. The definition of "sovereign" is to be the ultimate authority. There can't be two ultimate authorities over the same jurisdiction.

                1. I think I agree that when it's gone so far as 99 1-person districts, that's no longer a republican form of government. But a map that gave state legislature representation on, say, county lines should be constitutionally permissible, whether or not it's a good idea.

                  1. County lines are mostly based on pure geography and geometry. A county with a few thousand people shouldn't have the same representation as one with a few million.

                    The equal representation for each state in the Senate is something that basically no other country with representative government does. It is purely an artifact of the Founders making that compromise to get some of the smaller population states on board with the Constitution. Whether they could have been convinced to ratify it without that, we'll probably never know.

                    1. The question isn't whether you should do it, it's whether the Constitution mandates that you NOT do it. They're not the same question, the Constitution permits lots of things that shouldn't be done.

                      "The equal representation for each state in the Senate is something that basically no other country with representative government does."

                      That's because the US isn't "a" country. It's a "federation".

                    2. The question isn't whether you should do it, it's whether the Constitution mandates that you NOT do it.

                      There's way too many things a sovereign country would be able to do that the states are barred from doing for you to argue that I live in the country of Florida.

                      That's because the US isn't "a" country. It's a "federation".

                      Most of the states were admitted after having been territories of the United States. The United States is a single, sovereign country by any reasonable definition of the word. It isn't just a "federation" of otherwise sovereign nations, no matter how much you want it to be that.

                    3. Except for little things like the 10th amendment. And not all the states that were admitted after the first 13 had previously been territories; Both Texas and Hawaii had been sovereign countries before their admission as states.

                      The US is a federation of sovereign states, where the states delegated some, but not remotely all, parts of their sovereignty to the federal government. That's why the federal government, constitutionally, only has the powers delegated to it, while the states have every remaining power not forbidden them.

              2. as is only proper for a federation of sovereign states

                No. It. Isn't. The Articles of Confederation were supplanted.

                1. By a new federation, but still a federation.

  14. Basically Kav's operation of the so-called Purcell 'principle' is states get to do one illegal election for free so long as they enact the illegal law as close as possible to the election date (note that the plaintiffs here sued AL within hours of the law's enactment, the D. Ct. (Featuring 2 Trump appointees) Set an expedited briefing/trial schedule and then issued an order 4 months before the election, but the republican justices say that's too much chaos too close to an election).

    I'll save blackman some ink- the only principle consistently running through the court's shadow docket rulings is politics. The law-professor commentariat bending over backwards to postrationalize and identify any legal principles in them are just lying to the rest of us that the emperor is wearing a single piece of clothing

    1. Alternatively, the courts only get to declare an election law unconstitutional if they don't wait until close enough to the election that there wouldn't be time for their ruling to be challenged and overturned.

      What's lacking here is a hard and fast line on what's too close to an election; Too much ambiguity leading to both sides gaming the schedule.

  15. 1. In a theoretical sense, I suppose that I too am not a particularly fan of how the shadow docket has come to be used in highly publicized/polarized cases. But at the end of the day, the Justices have to take the cases that are presented to them, and both "sides" have been equally willing to invoke emergency relief claims, so at the end of the day I suppose people should stop whining about it.
    2. The Alabama case suggests an interesting paradox of sorts. On a previous episode, we learned that political gerrymandering is just fine and dandy if that's what the state's rules allow. In Alabama, the lower court seems to suggest that you "must" draw multiple opportunity districts if you "can" draw them (or at least you can't crack/pack if you "can" draw them), whereas the state's position is sort of that you "must" draw them only if you "can't avoid" drawing them. But given that a predicate for a VRA claim is minority bloc voting, the argument that you "must" draw them is almost tantamount to saying that you can't politically gerrymander. I know, I know, race is different and rightfully so. But odd nevertheless.

  16. Justice Roberts wrote in his opinion: "I respectfully dissent from the stays granted in these cases because, in my view, the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction." Kavanaugh does not disagree. There were five votes to stay the district court's decision even though it "properly applied existing law."

  17. I don't mind seeing the Court provide succor to bigots and vote suppressors.

    That course seems likely to expedite the arrangement of a Court more aligned with modern America -- and less likely to revere conservative decisions.

    1. lol cry more. Hope you have fun with 2-3 more decades of this haha

      1. Where are you going to find enough bigots and superstitious hayseeds to make Republicans competitive in modern elections? The backwaters are emptying. The clingers are withdrawing into smaller and smaller, poorer and poorer, dumber and dumber rural populations.

        The culture war isn’t over but it has been settled. The educated, tolerant, smart people have won. The right-wing bigots who cling to fairy tales are the culture war’s casualties.

        1. Tell that to the flood of Latinos entering the GOP lol - cry more. I predict we get our first Latina SCOTUS appointment by a GOP president within the next 16 years.

  18. she does not want the Court to enter emergency relief that would alter the status quo.

    - In the vaccine mandate case, the District Court did not grant an injunction, so the status quo remained that the mandate would go into effect.

    - In the capital case, the district court granted a stay of execution, so the status quo remained that the inmate would not be executed.

    - And in the Alabama cases, the district court ordered the state to draw new maps. Granting a stay preserved the old maps, which would continue to remain in effect for the 2022 elections.

    I don't think this makes any sense. It depends entirely on when you start the clock for the status quo. Thus in the Blackman-mindreads-Judge-Amy scenario, the status quo is :

    1. in the vaccine case, after the government has imposed a mandate, and after the District Court has left the mandate alone

    2. in the capital case, after the State court has imposed a death sentence, and after the District Court has issued a stay

    3. in the Alabama case, after the legislature has redrawn its maps, and after the District Court has issued a stay

    The "Barrett status quo" can't be after whatever the District Court has done (otherwise she'd have gone the other way on Alabama.)
    Nor can it be immediately before the District Court has ruled, else she'd have gone the other way on 2. But nor can it be "whatever involves zero new action in the real world" because although that would explain 2 (the guy doesn't get executed) it wouldn't explain 1 (actual people become subject to a mandate invoiving actual punishment if they break it.)

    If the decision of the District Court is not the status quo, then reconcling the vaccine case and the capital case under the concept of status quo is very difficult. It's easy to see that keeping the guy alive is the status quo, but then how is allowing the vaccine mandate to go into effect the status quo ?

    And if allowing the vaccine mandate to go into effect is the status quo as it's a pre-District Court government intervention order (and ditto the Alabama Legslature's maps) then how is letting the ancient State court death sentence be implemented not the status quo ?

    If Judge Amy is analysing it like Prof B, then she's very confused. Perhaps she has another scheme in mind.

  19. Prof. Blackman kept writing "old maps" and status quo. But of course these were brand new electoral maps drawn after the 2020 census. There really isn't much status quo to maintain here.

    1. I think he means "old" in comparison to the hypothetical "new" maps they were ordered to draw and didn't. But it is an odd choice since it makes you think of the "older" maps used in the prior election.

      Good ol Josh.

    2. The 2020 maps were by all accounts very similar to the ones they'd been using.

  20. Just a few random comments.

    In several elections there have been voting precincts where 100% of the votes went for a dem; ones in Philly come to mind. The explanation which I am buying is these precincts are basically in a black ghetto being affected by effective get out the vote efforts. In fact in many big cities congressional districts have heavy majorities for the dem; again due to the political leanings of the residents. This is the real reason for what some posters have called wasted votes being concentrated in the dems and less in the pubs. The result is computers trying to draw compact districts would likely make the wasted vote problem even worse. On the other hand pubs often tend to be more spread out. Other posts have noted that while CA has a lot of pubs since it is a big state but it is almost impossible to create a map that reflects this even with no gerrymandering. Just the make up of dems living close together and pubs being more spread out results in de facto gerrymandering.

    The link to "Evaluating Partisan Gains..." was interesting to me in showing the two maps of Florida. I live in the Florida District 5. It is obvious gerrymandered. It stretches from black neighborhoods in Jacksonville to black neighborhoods in Tallahassee and a rural county just West of Tallahassee being over 200 miles from East to West. On the other hand it's narrowest point North to South along the Georgia border is 3 miles. Not to mention the way it cuts up the neighborhoods in Jacksonville is obviously to include blacks but not whites. What is of interest is the map beside the voting results map looks much like what would seem to be a computer generated "fair" map.

    The thing is DeSantis has just asked the Floridia Supreme Court for an opinion on the legality of the District 5 map since it seems to violate the law about not drawing districts to benefit a particular race and proposed a map much like the "fair" map. Problem is it would almost for sure change the district from dem to pub.

    Point is that for maybe 20 years or so the courts favored creating districts to produce more black (read dem) Representatives but now that the law is suppose to be race neutral and create more compact districts with simple shapes.

    Given the way dems seem to live in compressed spaces compared to pubs who are more spread out and the desire for compact districts I don't see how it is possible to prevent fewer blacks and dems in Congress.

    Looking at the maps of Florida in the link to the

    1. " Other posts have noted that while CA has a lot of pubs since it is a big state but it is almost impossible to create a map that reflects this even with no gerrymandering."

      Ah, actually analysis of CA has shown that it actually IS gerrymandered so as to reduce Republican representation. Apparently the Dems weren't content with just domination, they wanted utter domination.

      "Given the way dems seem to live in compressed spaces compared to pubs who are more spread out and the desire for compact districts I don't see how it is possible to prevent fewer blacks and dems in Congress."

      It's possible by gerrymandering to prevent it, which is pretty clearly the plan. Though in Orwellian terms, of course they call the gerrymandering anti-gerrymandering.

  21. It's interesting reading the posts at Election Law Blog; They're really just going out of their minds over the possibility that the Supreme court might rule that the VRA doesn't really mandate racial gerrymandering.

    Why, there won't be anything left of the VRA at all, if it doesn't mandate racial discrimination, or worse, prohibits it!

  22. I think Chief Justice Roberts is right here. The lower court decision appears correct under existing law. The new majority might want to change the law, but the shadow docket is no place to do that. And there is plenty of time before the election to meet the District Court’s mandate, the November election is hardly imminent, and it’s a couple of months before the primary. Primaries can be postponed if necessary.

    1. "Primaries can be postponed if necessary."

      I think that's more than a little bit casual. As the majority pointed out, this has to be settled WELL in advance of the election, because without the map, the candidates don't even know for sure which district they live in. And you'd take the whole schedule and compress it by, what, a couple months? Best case?

      And, not to demand that the number of racially gerrymandered districts be maintained. To demand it be increased!

      And consider Roberts' position more closely: He agrees the existing law is likely wrong, he just thinks that the Court could examine the question at its leisure after the likely wrong map had already been used.

      You're going to change the map by court order, then change it back after it's been used?

      1. And you'd take the whole schedule and compress it by, what, a couple months? Best case?

        Eighteen states do not even hold primaries until after August 1.

        And consider Roberts' position more closely: He agrees the existing law is likely wrong, he just thinks that the Court could examine the question at its leisure after the likely wrong map had already been used.

        You're going to change the map by court order, then change it back after it's been used?

        What are you talking about, Brett? Roberts thinks the district court got it right.

        1. "Roberts thinks the district court got it right."

          No, he thinks the district court correctly applied a precedent that the Court might want to overturn on review.

          "I respectfully dissent from the stays granted in these
          cases because, in my view, the District Court properly applied existing law in an extensive opinion with no apparent
          errors for our correction. ...

          But while the District Court cannot be faulted for its application of Gingles, it is fair to say that Gingles and its progeny have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim. ...

          In order to resolve the wide range of uncertainties arising
          under Gingles, I would note probable jurisdiction in Milligan and grant certiorari before judgment in Caster, setting the cases for argument next Term."

          He'd let them use the map, and then come back to see whether the map really should have been rejected, after the court's substitute map had already been used. And, given that he's dissenting, do you suppose he thinks the lower court is probably going to prevail in that review?

          1. And this is the position Chief Justice Roberts has taken on this. I agree with him. The Supreme Court is a court, not a legislative body.

          2. That is, Roberts takes the position that any chance in the law can only occur after full briefing and argument, not on the shadow docket.

          3. The situation here is no different from letting a person you think likely guilty out on bail prior to trial, then incarcerating him. If you know you’re going to wnd up incarcerating him anyway, why not just do it now? Why string it out? It’s inefficient!

            The consequences of courts give existing precedent a presumption of regularity, statutes a presumption of constitutionality, etc. are no different from the consequences of the presumption of innocence.

            Society gives up some efficiency, even accepts that courts will reverse themselves once trials and deliberations are done, to avoid acting on first impressions, ensure evidence and argument are looked at carefully, and reach a more just and reliable result.

            It’s the same principle as presuming innocence in judicial actions taken prior to the trial.

        2. I think that even if a Justice privately thinks the existing law is wrong, shadow docket cases need to be decided under existing law. The Court should change the law only after full briefing and argument.

          In important and time-critical cases this could be done on the rocket docket rather than the regular docket. But nonetheless, prior to briefing and argument, existing law prevails.

Please to post comments