Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. A panel of
Speaker 1: federal judges has declared that Ohio's congressional map is an
Speaker 1: unconstitutional partisan jerrymander. They ruled up the redistricting process, which
Speaker 1: locked in twelve Republican House victories out of sixteen seats,
Speaker 1: since was permeated by quote invidious partisan intent. Joining me
Speaker 1: is Josh Douglas, a professor at the University of Kentucky
Speaker 1: College of Law and author of the book Vote for Us.
Speaker 1: Josh explained the panel's decision and reasoning thanks the opinion
Speaker 1: was three pages, so we probably take a long time
Speaker 1: to explain all of it, but simplified essentially, the panel
Speaker 1: unanimously ruled that Ohio's partisan jerrymander was unconstitutional both under
Speaker 1: the Equal Protection Clause and the First Amendment, and essentially
Speaker 1: saying that the map was drawn with both the partisan
Speaker 1: intent and a partisan effect, and the state couldn't justify
Speaker 1: it by any means beyond just a blatant desire to
Speaker 1: harm the minority political parties. This decision is the latest
Speaker 1: in a string of state and federal court decisions striking
Speaker 1: down maps. Is there a common thread in all these decisions? Well,
Speaker 1: I think there's a couple of common threads. One is
Speaker 1: that numerous judges now have found that there are judicially
Speaker 1: manageable standards to consider and analyze partisan jerrymandering. You know,
Speaker 1: many justices of the Supreme Court have said essentially that
Speaker 1: the Court should not be open to these claims because
Speaker 1: there's no way for judges to craft the judicial test
Speaker 1: that would determine when jerrymanders go too far. And now
Speaker 1: you have multiple courts all call lessing around a standard.
Speaker 1: And then the other thing that's common is the standard
Speaker 1: that's actually being used, which is this combination essentially of
Speaker 1: an intense framework as well as an effect framework demonstrating
Speaker 1: the partisan effect that the maps have, essentially meaning that
Speaker 1: the map makers packed and cracked the other side of
Speaker 1: voters in such a way to ensure that they can
Speaker 1: stay in power. Josh, do all these decisions depend now
Speaker 1: on how the Supreme Court rules in the two gerrymandering
Speaker 1: cases it has before it. Yeah, essentially, so all these
Speaker 1: cases are before three judge district courts with direct appeal
Speaker 1: to the U. S. Supreme Court, So they'd skip over
Speaker 1: the Court of Appeal stage and have a direct appeal.
Speaker 1: But as you note June, the Supreme Court has two
Speaker 1: cases pending before right now, one from North Carolina and
Speaker 1: the other from Maryland. And if the Court says that
Speaker 1: there are no anders out there and that the Court
Speaker 1: shouldn't be involved in these cases, essentially would go away.
Speaker 1: I think that would be pretty strange for the Court
Speaker 1: to say that now that we have four different courts
Speaker 1: in recent months ruling on constitutional and jerry manders. And
Speaker 1: then if the Court does set out of standard in
Speaker 1: the Maryland or North countline of cases, will have to
Speaker 1: see to what extent that is consistent with the standards
Speaker 1: that these lower courts have used. Well, the Supreme Court
Speaker 1: before decided not to make a broad ruling about partisan gerrymandering.
Speaker 1: Is it likely that the Justices might try to evade
Speaker 1: that as well this time? Well, I think it's hard
Speaker 1: to say. Again, these cases come on direct appeal, so
Speaker 1: essentially the Court has to take them even refusing to
Speaker 1: hear the case would act as a summary affirments. Given
Speaker 1: the unique nature of the procedural posture, where the Court
Speaker 1: isn't granting certain like it does in normal cases on
Speaker 1: the discretionary basis, it's a mandatory direct appeal. And so
Speaker 1: the court had to do something with the Maryland and
Speaker 1: North Carolina cases just like it will have to do
Speaker 1: something with these other cases once eventually they are appealed.
Speaker 1: So the question then becomes, well, what will the court
Speaker 1: actually do in these North Carolina and Maryland cases? You know,
Speaker 1: on the one hand, they could try to set out
Speaker 1: a standard and then say, okay, here's a test to
Speaker 1: root out the worst of the partisan jerrymanders. But there
Speaker 1: might be five votes to say that the courts simply
Speaker 1: should stay out of the business altogether, that this is
Speaker 1: part and parcel of politics, and that there are no
Speaker 1: judicially manageable standards out there, in which case the courts
Speaker 1: would have to essentially stay out and these lower court
Speaker 1: cases would be vacated. So now let's go back to
Speaker 1: the ruling here. If it does stand, will they be
Speaker 1: able to make the deadline of mid June to draw
Speaker 1: a new map? Well, that's obviously going to be difficult,
Speaker 1: especially because you know, we're only a couple of months
Speaker 1: out from the new deadline. My suspicion is that Ohio
Speaker 1: will appeal this to the Supreme Court and ask for
Speaker 1: a stay, and that the court will stay the case
Speaker 1: until it decides the Maryland and North Carolina case. So
Speaker 1: I suspect that we won't see any real action in
Speaker 1: terms of redrawing lines, even if this map were to
Speaker 1: be upheld until after the Supreme Court does what it
Speaker 1: decides to do in the North Carolina and Maryland cases.
Speaker 1: And Josh, is there a way of telling in these
Speaker 1: cases if the cases continue as they are without being reversed,
Speaker 1: is it advantage Democrats or advantage Republicans or you can't tell? Well,
Speaker 1: I think it's advantage to whoever does not currently control
Speaker 1: the map drawing process. You know, in Ohio and in
Speaker 1: Michigan the other case that came down last week, it
Speaker 1: was the Republicans that have been drawing the lines to
Speaker 1: a trench themselves in power. But in the Maryland cases,
Speaker 1: the Democrats who drew at least one particular district to
Speaker 1: make a from favor Republican to favor Democrats. In North Carolina,
Speaker 1: it was been the Republicans who have controlled the map
Speaker 1: drawing process. So essentially, if the courts step in and
Speaker 1: say we're going to craft the test to root out
Speaker 1: the worst partisan jamanders, just like this Ohio court did,
Speaker 1: then it takes some power away from where a lot
Speaker 1: of power away from the party that currently controls the
Speaker 1: legislature and can draw the lines. And now the other
Speaker 1: thing I noticed that this case really only apply in
Speaker 1: Ohio because the state's voters did pass a form of
Speaker 1: redistricting commission that would take the process, at least initially
Speaker 1: out of the hands of the legislature. And I think
Speaker 1: that's also an important thing to think about, is that
Speaker 1: when we do the new roundity districting, the process will
Speaker 1: look a lot different in many places. Do you think
Speaker 1: redistricting by commission is the best way to do it?
Speaker 1: I do, um, because we've seen that commission it, especially
Speaker 1: one that's independent, that has multiple voices, you know, has
Speaker 1: greater independence and therefore greater fairness. You're not trying to
Speaker 1: entrench one side or the other. All right, Thanks so much, Josh.
Speaker 1: That's Josh Douglas, professor at the University of Kentucky College
Speaker 1: of Law and author of the book Vote for Us.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.
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