WEBVTT - Swing State Voter Map Thrown Out as Unconstitutional

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. A panel of

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<v Speaker 1>federal judges has declared that Ohio's congressional map is an

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<v Speaker 1>unconstitutional partisan jerrymander. They ruled up the redistricting process, which

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<v Speaker 1>locked in twelve Republican House victories out of sixteen seats,

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<v Speaker 1>since was permeated by quote invidious partisan intent. Joining me

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<v Speaker 1>is Josh Douglas, a professor at the University of Kentucky

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<v Speaker 1>College of Law and author of the book Vote for Us.

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<v Speaker 1>Josh explained the panel's decision and reasoning thanks the opinion

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<v Speaker 1>was three pages, so we probably take a long time

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<v Speaker 1>to explain all of it, but simplified essentially, the panel

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<v Speaker 1>unanimously ruled that Ohio's partisan jerrymander was unconstitutional both under

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<v Speaker 1>the Equal Protection Clause and the First Amendment, and essentially

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<v Speaker 1>saying that the map was drawn with both the partisan

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<v Speaker 1>intent and a partisan effect, and the state couldn't justify

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<v Speaker 1>it by any means beyond just a blatant desire to

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<v Speaker 1>harm the minority political parties. This decision is the latest

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<v Speaker 1>in a string of state and federal court decisions striking

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<v Speaker 1>down maps. Is there a common thread in all these decisions? Well,

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<v Speaker 1>I think there's a couple of common threads. One is

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<v Speaker 1>that numerous judges now have found that there are judicially

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<v Speaker 1>manageable standards to consider and analyze partisan jerrymandering. You know,

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<v Speaker 1>many justices of the Supreme Court have said essentially that

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<v Speaker 1>the Court should not be open to these claims because

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<v Speaker 1>there's no way for judges to craft the judicial test

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<v Speaker 1>that would determine when jerrymanders go too far. And now

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<v Speaker 1>you have multiple courts all call lessing around a standard.

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<v Speaker 1>And then the other thing that's common is the standard

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<v Speaker 1>that's actually being used, which is this combination essentially of

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<v Speaker 1>an intense framework as well as an effect framework demonstrating

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<v Speaker 1>the partisan effect that the maps have, essentially meaning that

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<v Speaker 1>the map makers packed and cracked the other side of

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<v Speaker 1>voters in such a way to ensure that they can

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<v Speaker 1>stay in power. Josh, do all these decisions depend now

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<v Speaker 1>on how the Supreme Court rules in the two gerrymandering

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<v Speaker 1>cases it has before it. Yeah, essentially, so all these

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<v Speaker 1>cases are before three judge district courts with direct appeal

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<v Speaker 1>to the U. S. Supreme Court, So they'd skip over

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<v Speaker 1>the Court of Appeal stage and have a direct appeal.

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<v Speaker 1>But as you note June, the Supreme Court has two

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<v Speaker 1>cases pending before right now, one from North Carolina and

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<v Speaker 1>the other from Maryland. And if the Court says that

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<v Speaker 1>there are no anders out there and that the Court

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<v Speaker 1>shouldn't be involved in these cases, essentially would go away.

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<v Speaker 1>I think that would be pretty strange for the Court

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<v Speaker 1>to say that now that we have four different courts

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<v Speaker 1>in recent months ruling on constitutional and jerry manders. And

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<v Speaker 1>then if the Court does set out of standard in

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<v Speaker 1>the Maryland or North countline of cases, will have to

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<v Speaker 1>see to what extent that is consistent with the standards

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<v Speaker 1>that these lower courts have used. Well, the Supreme Court

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<v Speaker 1>before decided not to make a broad ruling about partisan gerrymandering.

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<v Speaker 1>Is it likely that the Justices might try to evade

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<v Speaker 1>that as well this time? Well, I think it's hard

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<v Speaker 1>to say. Again, these cases come on direct appeal, so

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<v Speaker 1>essentially the Court has to take them even refusing to

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<v Speaker 1>hear the case would act as a summary affirments. Given

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<v Speaker 1>the unique nature of the procedural posture, where the Court

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<v Speaker 1>isn't granting certain like it does in normal cases on

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<v Speaker 1>the discretionary basis, it's a mandatory direct appeal. And so

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<v Speaker 1>the court had to do something with the Maryland and

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<v Speaker 1>North Carolina cases just like it will have to do

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<v Speaker 1>something with these other cases once eventually they are appealed.

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<v Speaker 1>So the question then becomes, well, what will the court

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<v Speaker 1>actually do in these North Carolina and Maryland cases? You know,

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<v Speaker 1>on the one hand, they could try to set out

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<v Speaker 1>a standard and then say, okay, here's a test to

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<v Speaker 1>root out the worst of the partisan jerrymanders. But there

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<v Speaker 1>might be five votes to say that the courts simply

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<v Speaker 1>should stay out of the business altogether, that this is

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<v Speaker 1>part and parcel of politics, and that there are no

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<v Speaker 1>judicially manageable standards out there, in which case the courts

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<v Speaker 1>would have to essentially stay out and these lower court

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<v Speaker 1>cases would be vacated. So now let's go back to

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<v Speaker 1>the ruling here. If it does stand, will they be

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<v Speaker 1>able to make the deadline of mid June to draw

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<v Speaker 1>a new map? Well, that's obviously going to be difficult,

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<v Speaker 1>especially because you know, we're only a couple of months

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<v Speaker 1>out from the new deadline. My suspicion is that Ohio

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<v Speaker 1>will appeal this to the Supreme Court and ask for

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<v Speaker 1>a stay, and that the court will stay the case

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<v Speaker 1>until it decides the Maryland and North Carolina case. So

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<v Speaker 1>I suspect that we won't see any real action in

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<v Speaker 1>terms of redrawing lines, even if this map were to

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<v Speaker 1>be upheld until after the Supreme Court does what it

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<v Speaker 1>decides to do in the North Carolina and Maryland cases.

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<v Speaker 1>And Josh, is there a way of telling in these

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<v Speaker 1>cases if the cases continue as they are without being reversed,

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<v Speaker 1>is it advantage Democrats or advantage Republicans or you can't tell? Well,

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<v Speaker 1>I think it's advantage to whoever does not currently control

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<v Speaker 1>the map drawing process. You know, in Ohio and in

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<v Speaker 1>Michigan the other case that came down last week, it

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<v Speaker 1>was the Republicans that have been drawing the lines to

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<v Speaker 1>a trench themselves in power. But in the Maryland cases,

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<v Speaker 1>the Democrats who drew at least one particular district to

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<v Speaker 1>make a from favor Republican to favor Democrats. In North Carolina,

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<v Speaker 1>it was been the Republicans who have controlled the map

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<v Speaker 1>drawing process. So essentially, if the courts step in and

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<v Speaker 1>say we're going to craft the test to root out

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<v Speaker 1>the worst partisan jamanders, just like this Ohio court did,

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<v Speaker 1>then it takes some power away from where a lot

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<v Speaker 1>of power away from the party that currently controls the

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<v Speaker 1>legislature and can draw the lines. And now the other

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<v Speaker 1>thing I noticed that this case really only apply in

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<v Speaker 1>Ohio because the state's voters did pass a form of

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<v Speaker 1>redistricting commission that would take the process, at least initially

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<v Speaker 1>out of the hands of the legislature. And I think

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<v Speaker 1>that's also an important thing to think about, is that

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<v Speaker 1>when we do the new roundity districting, the process will

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<v Speaker 1>look a lot different in many places. Do you think

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<v Speaker 1>redistricting by commission is the best way to do it?

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<v Speaker 1>I do, um, because we've seen that commission it, especially

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<v Speaker 1>one that's independent, that has multiple voices, you know, has

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<v Speaker 1>greater independence and therefore greater fairness. You're not trying to

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<v Speaker 1>entrench one side or the other. All right, Thanks so much, Josh.

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<v Speaker 1>That's Josh Douglas, professor at the University of Kentucky College

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<v Speaker 1>of Law and author of the book Vote for Us.

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<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg