ACSBlog

  • September 13, 2017
    Guest Post

    by Matt Lynch, Special Counsel, Foley & Lardner LLP and Steering Committee member, ACS Madison Lawyer Chapter

    Few are willing to defend the practice of partisan gerrymandering on its merits.  Republican lawmakers, Democratic lawmakers, historians, political scientists, law professors, partisan interest groups, and nonpartisan interest groups alike all agree that gerrymandering—drawing legislative districts for the purpose of political advantage—is a pox on representative government. But stopping the practice requires legislators to voluntarily harm their own chances for re-election.  And so gerrymandering continues, now aided by more precise voter data than we have ever had, and the technology to use it on a broad, state-wide scale.

    Gill v. Whitford, a case arising from Wisconsin’s heavily gerrymandered districts, presents the United States Supreme Court with a clean opportunity to rein in that despised practice.  The only question is whether the justices—namely swing Justice Anthony Kennedy—believe it is a problem that warrants a judicial solution.

  • September 13, 2017
    Guest Post

    by Chris Kang, ACS Board member and former Deputy Counsel to President Obama

    *This piece originally ran on Huffington Post

    As President Trump seeks to dramatically pack the judiciary with conservative, ideological judges, attention has turned to blue slips—little blue pieces of paper that home-state Senators have returned for a hundred years and allow judicial nominees to proceed to confirmation. Here is what you need to know about them:

  • September 13, 2017
    Guest Post

    by Bidish Sarma

    *Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.

    The panoply of laws that govern the lives of individuals convicted of sex crimes after they have served their sentences is overwhelming. As this web of civil regulation has “grown into a byzantine code governing in minute details” how these people must live day-to-day, questions about these laws’ legitimacy and constitutionality are being litigated around the country. Several courts have struck down onerous and overbroad registration requirements that apply to offenders living in the community. Yet, questions persist, particularly where the government actually deprives individuals of their physical liberty. Civil commitment schemes specifically designed for sex offenders have been in vogue for more than two decades now. The U.S. Supreme Court approved some of these schemes as they took root, but it insisted that courts could bring constitutional scrutiny to bear if it turned out these schemes were punitive. The real test of that promise has now arrived.

  • September 13, 2017

    by Justin Levitt, Professor of Law, Loyola Law School, Los Angeles

    *This piece originally ran on SCOTUSblog as a part of their Summer Symposium on Gill v. Whitford

    When the Supreme Court last addressed partisan gerrymandering in detail, all nine justices agreed that “an excessive injection of politics” into the redistricting process violates the Constitution. The court splintered, however, on two pivotal issues: how to know when an injection of politics is excessive, and who should decide.

    Four justices proposed various tests; four others wanted federal courts to abandon the field. Justice Anthony Kennedy, occupying his customary center square, rejected all of the proposed tests, but refused to slam the courthouse door entirely on partisan-gerrymandering claims. He expressly invited redistricting litigants to serve up additional standards. And for the last 13 years, they have been trying to solve Kennedy as much as they have been trying to solve excessive gerrymandering.

  • September 13, 2017
    Guest Post

    by Daniel TokajiCharles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law

    *This piece originally ran on SCOTUSblog as a part of their Summer Symposium on Gill v. Whitford

    A constitutional standard for partisan gerrymandering is the holy grail of election law. For decades, scholars and jurists have struggled to find a manageable standard for claims of excessive partisanship in drawing district lines. Most of these efforts have focused on the equal protection clause. But as Justice Anthony Kennedy suggested in Vieth v. Jubelirer, the First Amendment provides a firmer doctrinal basis for challenging partisan gerrymandering. An established line of precedent understands voting as a form of expressive association protected by the First Amendment. These cases offer a nuanced standard that would avoid the undesirable result of rendering any consideration of partisan consequences unconstitutional.