The Ohio Partisan Gerrymandering Decision: A Worthy Model for the Supreme Court

Daniel Tokaji is a member of the ACS Board of Advisors. 

The three-judge district court opinion holding Ohio’s congressional districts unconstitutional confirms what we in the Buckeye State have known for a long time: the state’s map is an extreme partisan gerrymander, one that has diminished our democracy. The 2011 congressional plan locked in a 12-4 Republican majority in Ohio’s congressional delegation, a remarkable feat given that the state as a whole remains competitive between Republicans and Democrats. (In 2018, Ohioans reelected Democrat Sherrod Brown to the U.S. Senate 53.4%-46.6%, while also electing Republican Mike DeWine as Governor 50.4%-46.7%.)

Ohio’s districts are a finely honed example of a tried-and-true approach to partisan gerrymandering.  The plan packs opposition voters (in this case Democrats) in just a few districts, leaving the remaining districts safely in the hands of the dominant party (in this case Republicans) without wasting too many of their votes.

What are the national implications of Ohio’s ruling? This extreme congressional gerrymander has already spurred political reform.  A successful referendum reforming the process was overwhelmingly approved by voters and will take effect after the 2020 census. But at the moment, the district court decision on Ohio – like the decision invalidating Michigan’s state legislative districts a few days before – is a sideshow. The main events are the partisan gerrymandering cases out of Maryland and North Carolina that are currently pending before the Supreme Court. Ohio and Michigan have thus sought stays, to which responses are due today. Whether or not the Court grants these stays, these lower court rulings must be regarded as provisional. Their fate hinges on what the Court does in the pending Maryland and North Carolina cases.

Still, the Ohio decision – viewed alongside those that have come before it – sheds new light on the constitutional problem of partisan gerrymandering. As Nick Stephanopoulos notes, the lower courts have now coalesced around a constitutional standard for vote dilution. The Ohio decision also represents the most careful treatment of the claim that extreme partisan gerrymanders violate the First Amendment right of association, an argument that I have pressed alongside other law professors in amicus briefs before the Supreme Court. The district court’s careful review of the facts exposes the sinister intent and pernicious effects underlying Ohio’s congressional plan, while exposing the fallacy of arguments made in defense of such extreme partisan gerrymanders.

Ohio’s Districts Dilute Democratic Votes

On the vote dilution claim, the Ohio court applied a test similar to that which multiple other district courts have embraced. That standard requires plaintiffs to show (1) a discriminatory intent in the drawing of each district, and (2) a discriminatory partisan effect. Even if they can do so, defendants may still prevail if they may show (3) a legitimate justification for the districts.

The court’s lengthy opinion meticulously demonstrates how all of Ohio’s districts were infected with partisan bias. The original districts were drawn in a room at the Doubletree Inn, which was described in email as the “bunker,” where Republican staffers drew the new districts, with heavy input from Speaker John Boehner’s team. Although sham public hearings were held, Republicans kept the public – and Democratic legislators – in the dark until almost the very last moment.

Having had a front-row seat to Ohio’s 2011 redistricting process, I’m impressed with the court’s careful analysis of the facts. Internal communications among Republicans leave no doubt that their goal was to make 12 of 16 districts safely Republican, even in a strong Democratic year, while concentrating Democratic voters in four heavily packed districts. Line-drawers privately used terms like “‘dog meat’ voting territory” and “the Franklin County Sinkhole” to refer to areas where Democratic voters were concentrated. Their strategy of packing those voters into four districts succeeded marvelously. Twelve districts have remained safely Republican since they were drawn in 2011. Republicans were able to hold three-quarters of the state’s congressional districts even in 2018, an otherwise strong year for Democrats.

Ohio’s congressional plan is one of the most slanted in the country, a fact confirmed by multiple empirical measures. Still, there is one fact that Republicans have repeatedly asserted in defense of the plan: although Democrats opposed the initial version of the plan adopted in September 2011 (HB 319), many Democratic state legislators voted in favor of a slightly revised version adopted in December 2011 (HB 369). As the court described, Democrats were able to secure only “small concessions” between the two plans.

So why did many Democratic state legislators vote for the plan which retained the 12-4 partisan split in favor of the Republicans? As the opinion explains, Democrats had threatened a referendum challenging the initial plan, but couldn’t collect enough signatures to make good on the threat. Republicans effectively called their bluff. Left in a very weak bargaining position, some Democrats felt like they had no choice but to agree to the token changes to save face. While the Democratic votes in favor of the final plan were an embarrassment, given the plan’s overwhelming bias in favor of Republicans, they don’t vitiate the partisan intent of Ohio’s congressional districts or the plan as a whole.

The Ohio district court thoroughly explicates the evidence of partisan intent and effects, statewide and with respect to all 16 of the state’s districts, making exactly the sort of showing that the Supreme Court appeared to demand for vote dilution claims in last year’s decision out of Wisconsin, Gill v. Whitford.  For example, the Ohio court explains how the Ninth Congressional District – commonly referred to as the “Snake on the Lake” – was drawn to pack Democrats in the Toledo area with those in the Cleveland area, running along a thin strip alongside Lake Erie in places.

The court also explains how the Eleventh District – which I called the LeBron James District (until he left the Cavaliers) because it goes from Akron to Cleveland – packed Democratic voters, many of them African American. The court properly rejects the Republican claim that “the Voting Rights Act” made them do it, an argument that can’t pass the straight-face test given the lack of white bloc voting and the Supreme Court’s decision in Cooper v. Harris.  The Court rejected this argument in Cooper, and is unlikely to accept it here.

Ohio’s Districts Violate the Right of Association

While the Ohio vote dilution analysis follows prior lower court decisions, the district court breaks new legal ground in its analysis of the First Amendment association claim. The Court applies a balancing test, drawn from a long line of Supreme Court decisions that have viewed voting as a form of expressive association in other contexts. The leading case is Anderson v. Celebrezze, another Ohio decision that struck down the state’s rules for access to the general election ballot. In that opinion, the Court recognized that associational and voting rights are “overlapping,” and articulated a standard under which the burden on these rights should be balanced against the state’s interests.

Later Supreme Court cases have applied the Anderson standard in a variety of contexts, and lower courts routinely deploy this standard in assessing laws alleged to make voting more difficult. As I’ve argued previously, this is an appropriately nuanced standard, one that will allow the most extreme gerrymanders to be struck down, while allowing states to justify plans that may have some partisan effects or even intent. The First Amendment association standard best captures the injury arising from partisan gerrymandering. Plans like Ohio’s make it more difficult for voters to join with like-minded others, as well as their preferred candidates and political party.

Other lower courts (including those in Maryland, North Carolina, and Wisconsin) have held that extreme partisan gerrymanders violate the First Amendment, but none have approached the association claim with the sophistication of the Ohio court. This decision articulates the right framework for determining whether partisan gerrymandering violates the right of association. And it applies this standard with care, finding that Ohio’s plan imposes severe burden on the Democratic Party and its supporters, both inside and outside the electoral process. Ohio’s plan not only makes it practically impossible for Democrats to get elected in 12 of 16 districts, but also has a “demobilizing” effect on people who would otherwise engage in the political process.

In her concurring opinion in Gill v. Whitford, joined by three other justices, Justice Kagan suggested that courts should consider whether partisan gerrymanders make it more difficult for the disfavored party to register voters, attract volunteers, recruit candidates, and otherwise engage in political activity. The evidence of such effects isn’t as strong in the Ohio case as in the North Carolina case now before the Supreme Court (described in our amicus brief, pp. 24-26), but there is some evidence that Ohio’s gerrymander has demobilized citizen participation.  This evidence, along with the debilitating effect on Democrats’ electoral prospects, supports the conclusion that the First Amendment right of association was violated.

As Ohio Goes . . .

That brings us back to the question of what the Ohio gerrymandering decision means for the rest of the nation. Ohio is an egregious example of how a skillful partisan gerrymander can lock one party into power while locking the other out for the rest of the decade. When viewed alongside opinions in other states, the Ohio decision exposes the fallacy of the argument that there are no judicially discernable and manageable standards for assessing partisan gerrymandering. Accordingly, the argument that partisan gerrymandering is a nonjusticiable political question lacks credibility.

That said, a victory in the North Carolina or Maryland case currently pending before the Court will not guarantee victory for the Ohio plaintiffs. There are potential grounds for distinguishing Ohio – most notably, the fact that some Democratic legislators voted for the plan and the relatively sparse evidence of extra-electoral effects of the type that Justice Kagan invited.

It thus remains to be seen whether Ohio will be a bellwether on partisan gerrymandering, as it has long been in presidential elections.  I won’t try to predict whether the Supreme Court will grant a stay or what the ultimate fate of this case will be.  But the Ohio district court decision is a great model, one that the Supreme Court should follow.

How the Trump Administration’s Contraception Rules Trample Women’s Constitutional Rights

Three years have passed since access to birth control was before the Supreme Court. But now the issue has returned in force to the circuit courts of appeals as 15 states challenge extreme contraception rollback rules created by the Trump administration. The new rules, if upheld, could eliminate contraception insurance coverage for millions of women nationwide.  Oral argument will be held tomorrow in the Third Circuit and on June 6 in the Ninth Circuit.

Already, medical groups, business groups, and more are weighing in with their own arguments in more than a dozen amicus briefs, making their case against these rules that trample women’s constitutional rights and the ideals of religious pluralism.

Courts have called these new regulations a “dramatic” departure from the status quo with “potentially dire public health consequences.” Pre-existing rules allow non-profits and closely-held companies to provide notice that they object to insuring contraception on religious grounds. Their insurance company is subject to an independent legal obligation to provide insurance coverage. The Supreme Court allowed this compromise a few years ago in Burwell v. Hobby Lobby and Zubik v. Burwell because the impact on women is “precisely zero.”

Not so now. The new regulations make four changes that completely alter that calculus. Any company that chooses to -- think Nasdaq or Fortune 500 -- can claim an exemption, as can any private university. And not every objection need be religious; it can be merely “moral,” including the absurd belief that the role of women should be restricted to home or family. Next, the company or university can exempt itself without providing notice, in a way that impedes women and insurance companies from making other arrangements for contraception coverage. The last change may be the most outrageous. No proof is required. Blanket federal exemptions are allowed without requiring any corporation or university to justify, or even assert, a substantial burden on corporate religious beliefs.

These extreme rules purport to interpret the Affordable Care Act’s landmark contraceptive coverage guarantee, but perversely hollow it out. The ACA requires no-cost coverage of “preventative” services – and its Women’s Health Amendment makes clear that Congress intended to rectify past discrimination against women by health insurers. Before the ACA, women spent 30% to 44% of their out-of-pocket health costs on contraception. Congress rejected the Blunt Amendment, which infamously was promoted by an all-male panel and would have replaced the Women’s Health Amendment with a broad exemption for “moral” objectors.

These regulations resurrect the rejected Blunt Amendment, and defy common sense.  Contraception is used - at some point in their lives - by 99% of women (including 98% of Catholic women), but effective, consistent birth control remains expensive.

High out-of-pocket costs reduce effective contraception usage. The Women’s Health Amendment was an effective solution for that. Most recent numbers show that 62 million women now rely on the no-cost preventative services guarantee for contraception to protect their health and achieve personal, professional, and educational goals.

The Trump contraception rules also violate the Constitution. The fundamental right to use contraception was recognized in Griswold v. Connecticut more than 50 years ago. As the Court put it, “If the right of privacy means anything, it is . . . the decision whether to bear or beget a child.” The government is generally forbidden from discriminating against those who exercise a constitutional right. The Trump contraception rules do exactly that, by singling out contraception coverage – and only contraception coverage – for disfavored treatment.

Moreover, as the Center for Reproductive Rights, the Lawyers Committee for Civil Rights Under Law, and other civil rights organizations argue, the rules unconstitutionally discriminate against women by denying them the ability to preserve and protect their health and well-being to the same extent as men. As the Supreme Court put it in Planned Parenthood v. Casey, “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Business organizations like the U.S. Women’s Chamber of Commerce and the National Association of Female Executives have showed that contraception access increases women’s educational attainment and improves their achievement in the workforce.

President Trump’s rollback will most affect the people who can least afford it. African American women, for example, make 65 cents on the dollar compared to white men, and face higher rates of unintended pregnancy and death during delivery than white women.

The contraception rollback also violates the First Amendment and its promise of religious pluralism. As various religious denominations and civil rights organizations explain, the First Amendment provides that the government cannot “promote any particular denomination or provide believers with preferential benefits, and . . . force innocent third parties to bear the costs and burdens of others’ religious exercise.” Church-state scholars filed a separate brief elaborating on the “third-party-harm-rule,” which the Supreme Court has applied before in the case of employee benefits, holding that “[g]ranting an exemption . . . to an employer operates to impose the employer’s religious faith on the employees.”

The array of third-party briefs supporting the multiple lower court rulings blocking the contraception rollback underscore all that is at stake here in terms of fundamental rights, equality, and the American ideals of religious pluralism. Many agree with the district judge, who wrote: “It is difficult to comprehend a rule that does more to undermine the Contraceptive Mandate or that intrudes more into the lives of women.”

Brown v. Board of Education Was Rightly Decided 65 Years Ago. Why Do Trump's Nominees Refuse to Admit It?

This Friday marks the 65th anniversary of Brown v. Board of Education, which would normally be an occasion to commemorate the historic ruling and assess our nation’s progress toward equality and integration. But this year, there are startling new reasons to worry that Brown is imperiled by judicial appointees of the Trump-Pence administration – and that should raise alarms for everyone who cares about civil rights.

The Supreme Court’s unanimous 1954 decision in Brown was monumental in several respects. It struck down the doctrine of separate but equal and began rolling back the sprawling policy of racial segregation in schools and public accommodations. It infused real meaning into the Constitution’s core value of “equal protection of the laws.” And it undergirded constitutional milestones of the 20th century, including the 1967 decision of Loving v. Virginia, which overturned bans on interracial marriage, the 2003 decision in Lawrence v. Texas, which struck down the criminalization of LGBTQ persons, and the 2015 decision in Obergefell v. Hodges, which recognized marriage equality and drew upon Loving and Lawrence.

For the last half century, Brown has been universally praised by nominees to the federal bench, irrespective of the president who nominated them. In his 2005 confirmation hearing, then-judge John Roberts highlighted the “genius of the decision” and said he thought it was “certainly” correct in examining the realities of public education at the time. Likewise, in Samuel Alito’s 2005 testimony, he praised Brown as “one of the greatest, if not the single greatest thing that the Supreme Court of the United States has ever done,” which he “[a]bsolutely” believed protected the rights of children. This consensus extends long before, including Anthony Kennedy who, in 1987, unambiguously extolled Brown as “right when it was decided, and . . . right if it had been decided 80 years before.” Since joining the bench, scores of justices and judges have continued to celebrate Brown in public speeches and official commemorations.

But in recent months, multiple judicial nominees from the Trump-Pence administration have departed from this mainstream consensus and evaded straightforward questions about whether Brown was correctly decided. For example, a nominee for a lifetime federal judgeship in Louisiana, Wendy Vitter, refused to weigh in on Brown at her Senate hearing and only said tepidly that it was “binding.” Neomi Rao, who was confirmed to replace Brett Kavanaugh’s seat on the D.C. Circuit, elusively remarked at the time that it was “not appropriate” for her to comment on the “correctness of particular precedents.” In an apparent coordinated position, multiple nominees for the bench and for senior positions at the Department of Justice have since conspicuously avoided agreeing with Brown.

This is especially troubling for LGBTQ Americans, since it suggests that judges put forward by the Trump-Pence administration may not accept the Constitution’s guarantee of equal protection.  These nominees’ steadfast refusal to validate Brown also raises serious questions about whether they would try to overturn or narrow yet other longstanding civil rights precedents that are widely considered established and uncontroversial, such as the right to privacy. The avoidance of Brown seems part and parcel of the administration’s broader effort to roll back LGBTQ rights and civil rights and unleash a sweeping new license to discriminate against same-sex couples and families. The prospect of resuscitating a legal doctrine of separate facilities has particularly disturbing ramifications for the transgender community, since it could be used to uphold exclusionary policies in the workplace and in bathrooms. Moreover, the recent resistance to LGBTQ equality at the state level and on ostensibly theological grounds has some noticeable parallels to the widespread resistance to implementing Brown in the late 1950s and 1960s.

So this season’s anniversary of Brown is markedly different than years past, since basic precedent and principles are at risk in a way that they have not been in 65 years. The best way to memorialize the legacy of Brown is to mobilize around judicial nominees who accept its foundational importance, not just as a matter of constitutional law, but as an expression of basic human equality. Standing up for Brown is an important way to maintain the promise of equal justice for all Americans – and it could make all the difference for the next 65 years of constitutional rights.

Trump Administration’s New Rules for Asylum Seekers Are Inhumane and Ineffective

President Trump has instructed the Department of Homeland Security (DHS) and the Department of Justice (DOJ) to issue regulations that would make significant changes to the asylum process. The proposed changes would impose new burdens on asylum seekers, deter people from seeking asylum, and divert resources and attention that the immigration courts could focus on adjudicating more cases. The President has asked for these regulations within 90 days.

The April 29 “Presidential Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System” directs DHS and DOJ to issue regulations to require immigration courts to adjudicate asylum claims within 180 days of filing (excluding administrative appeals). The new rules would also impose fees on asylum seekers, and bar asylum seekers who enter the U.S. without inspection from receiving work authorization. As justification for these changes, President Trump cites an immigration and asylum system “in crisis.”

Section 208(d)(5)(A)(iii) of the Immigration and Nationality Act (INA) (8 U.S.C. 1158(d)(5)(A)(iii)) requires adjudication of asylum cases, absent exceptional circumstances, to be completed in 180 days. There are currently 850,000 cases pending in immigration court, and 450 judges.  Absent an immediate, serious investment in the asylum system, it will be impossible for this requirement to have any impact on the short-term “crisis” without seriously undermining the rights of asylum seekers.

Section 208(d)(3) of the INA (8 U.S.C. 1158(d)(3) permits, but does not require, the Attorney General to impose fees for the consideration of asylum applicants and work authorization for asylum seekers. For the past few decades, surcharges on non-humanitarian immigration applications (filed by immigrants and U.S. citizens) have funded the adjudication of asylum and refugee applications. Shifting the responsibility to asylum seekers to cover the costs for adjudicating their applications would require a complete review and adjustment of these surcharges, as the law, while allowing fees, does not allow these fees to exceed the costs of adjudicating the application. The law also requires the administration to establish a system for creating installment plans and collecting payments over time. This proposal would create new bureaucratic hurdles for asylum seekers and divert resources that the administration could use to adjudicate more cases

The President also directed DHS and DOJ to propose regulations to bar asylum seekers who have entered or attempted to enter the United States other than at a port of entry from receiving employment authorization until asylum (or any other form of relief) has been granted. Under current rules, asylum seekers may receive employment authorization after their application has been pending for 180 days, regardless of how they enter the country.

The United States provides no support to asylum seekers while their cases are pending. For the first six months after they file their asylum applications, during which they are not allowed to work, asylum seekers must rely on friends, family, private charity, unauthorized work, and other informal networks of support for housing and other basic needs. Denying work authorization indefinitely to thousands of asylum seekers would create a significant population of asylum seekers with no means of support, increasing the risks of exploitation, and making it impossible for many to obtain legal counsel.

The President also proposes to limit asylum seekers who have demonstrated a credible or reasonable fear of persecution or torture to pursuing only asylum and withholding of removal claims in immigration court.  The new rules would prohibit immigration judges from considering any other forms of relief and would limit their ability to release asylum seekers on bond. Asylum seekers who arrive in the U.S. between ports of entry would be subject to indefinite detention.

It is difficult to see how these new proposals would have any short-term impact on what the administration calls a “crisis.” Any of these changes would take months or years to implement and, depending on how they are drafted, be subject to litigation.

The administration’s enforcement-only approach has coincided with rising numbers of asylum seekers. Prior administrations have addressed large asylum backlogs and surges in asylum applications, but not with a harsh enforcement approach that attempts to discourage persecuted people from seeking asylum. Blocking asylum seekers’ access to the U.S., stripping asylum proceedings of any meaningful consideration by adjudicators, putting asylum seekers in indefinite detention, and separating families has not led to fewer asylum seekers.

A thoughtful, comprehensive approach to the asylum seekers at the southern border would include aid to sending countries, refugee resettlement programs that provide hope to people who face persecution – particularly those who have family members in the US, alternatives to detention, expeditious but fair processing of asylum claims in non-adversarial proceedings, and access to legal counsel.  The current and proposed policies, driven by panic, fear, and what seems to be a complete lack of empathy for people driven from their homes by violence and poverty is doing nothing to stem the flow of people who are seeking safety in the United States. Investing in a humane and efficient system that recognizes and respects the right of persecuted people to seek asylum would restore integrity to the process.

Picking the Right Judges: Four “I”s to Look For

Harsh Voruganti is a DC Lawyer Chapter Board Member and the Founder and Editor of the Vetting Room.

For the first time in years, the legal left is talking about judges.  Whether it’s ending lifetime tenure, or “court packing,” progressives are considering and debating ways to make an impact on the bench.  However, few people are talking about exactly who those new seats should go to.  In other words, what makes a progressive judge different than a conservative judge.  Even more simply, what are the qualities of a good judge?

Obviously, liberals and conservatives will disagree as to certain attributes, such as the endorsement of originalism, membership in the Federalist Society or the American Constitution Society, or work as a civil rights lawyer.  Personally, I’d narrow it down to four attributes that all judges, regardless of party, must exhibit to be worthy of an appointment: the Four “I”s of Judging.

First, a judge must have integrity.  While the recent confirmation of Justice Brett Kavanaugh has reignited debates over ethics codes for the Supreme Court, integrity goes beyond rote adherence to the letter of the law.  Rather, a judge with integrity seeks to conduct themselves in all circumstances as a servant of the law.  In other words, not only does a judge need to be in conformity with the law and all relevant ethics codes, he or she must treat all individuals with respect and dignity.  Further, he or she must refrain from promoting racism, sexism, homophobia, religious or anti-religious bigotry on or off the bench.  As such, a state judge who commits campaign finance violations, a prosecutor who skirts Brady obligations, and a lawyer who uses the law to help his clients legally discriminate against transgender employees all lack the requisite integrity for the bench.

Second, a judge should demonstrate intellect.  Intellect can manifest itself in many ways but includes both intelligence and intellectual curiosity.  A judge should have an interest in the law and in learning and supplementing their knowledge.  In addition, for obvious reasons, a judge needs to have the requisite intelligence to understand and parse complex issues they are presented with.  They also need to be able to adapt to changes in the law and adjust their jurisprudence accordingly.  Judges who routinely fail to understand legal arguments or lawyers who fail to comprehend the law they are parsing have no place on the bench.

Third, a judge must maintain industry.  In an increasingly overburdened legal system, judges need to be willing to put in the work needed to keep up with their caseload, as well as extra work as needed to ensure that litigants receive prompt, well-reasoned decisions.  Lawyers who cut corners rather than conduct diligent representation or judges who fail to show up to work on time or to keep their dockets moving efficiently lack this important qualification.

Fourth and perhaps most important, a judge must demonstrate impartiality.  In other words, a judge must have no bias or allegiance in a courtroom other than to the rule of law.  Any judge who shapes their decisions to the views of a political party, intellectual theory of interpretation, or, worst of all, towards a party they feel sympathy for, fails the test of impartiality.

Obviously, lawyers can always find additional criteria to prioritize on top of those listed above.  However, there should be general agreement that these four qualities: integrity; intellect; industry; and impartiality, are essential to a judge.  As such, a candidate must demonstrate all four in order to justify nomination and confirmation.  Regardless of whether or not “court packing” or other judicial reform actually happens, I hope the next President selects judges who possess all four of the “Is” needed to be a good judge.