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On election issues, US Supreme Court sticks to the shallows

Why We Wrote This

The United States looks to its Supreme Court for big decisions. But the decisions released Monday on US elections show that, sometimes, the high court itself isn’t ready to make those tough choices. 

Demonstrators rally in front of the US Supreme Court before oral arguments on Benisek v. Lamone, a redistricting case on whether Democratic lawmakers in Maryland unlawfully drew a congressional district in a way that would prevent a Republican candidate from winning, in Washington March 28, 2018.
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Rest easy. It’s OK to wear your “Don’t Tread On Me” tea party T-shirt into the election booth. At least, it’s OK in Minnesota. The Supreme Court ruled that’s the case last week, striking down a Minnesota state law that had barred such politically themed attire from polling places on grounds of electioneering. As for gerrymandering, though, high court justices have just collectively shrugged their shoulders. Justices this term heard two big cases dealing with the big, contentious issue of partisan district packing, but on Monday they deferred final decisions on those cases, on narrow grounds. When it comes to election law, that’s the story of this year’s Supreme Court term: definitive decisions on smaller items, avoidance on larger ones. Thus a term that seemed poised to make big changes in the logistics of US elections has made only small corrections. But as far as gerrymandering is concerned, it will be back. It’s an issue the court has struggled with in one form or another for more than a decade. Justices “manufactured reasons not to decide these cases today. That means the court hasn’t decided what it thinks yet,” says Justin Levitt, a redistricting expert and former assistant attorney general in the Department of Justice Civil Rights Division, on Monday. 

Elections – how they’re set up, how they’re carried out – have been an important theme in the current Supreme Court term. Justices considered cases on everything from appropriate voting booth attire to methods of drawing election district lines.

But in the end the high court didn’t order big changes in American political logistics. On this issue its nine members collectively edged around the shallow end of the pool without diving into deeper waters.

The gerrymander issue, dealing with partisan manipulation in the drawing of districts, was notable in this regard. With two big partisan gerrymander cases on the docket, one from Wisconsin and one from Maryland, the Supreme Court seemed set to finally settle the contentious question of whether, or how much, lawmakers can create districts designed to maximize Republican or Democratic party representation.

Instead, on Monday narrow rulings on both cases in essence deferred definitive answers.

Justices “manufactured reasons not to decide these cases today. That means the court hasn’t decided what it thinks yet,” says Justin Levitt, a redistricting expert and former deputy assistant attorney general in the Department of Justice Civil Rights Division.

The Supreme Court ruled in 2004 that the injection of excessive partisanship into redistricting in unconstitutional, says Levitt, who is now a law professor at Loyola Law School in Los Angeles. What they’re stuck on now is how to define “excessive” in this case, and what remedies for partisan gerrymandering might look like.

Both Democrats and Republicans have been guilty of egregious gerrymandering. “Voters are the ones caught in the middle,” Mr. Levitt says.

Racial gerrymandering, which is always illegal, is another matter. The court still has one election case left to decide this term on that question, out of Texas.

On other election issues the current Supreme Court term has provided more definitive action.

Take T-shirts. In 2010, a Minnesota voter named Andrew Cilek went his polling place wearing a tea party T-shirt saying “Don’t Tread On Me,” and a button with the message “Please I.D. me,” a phrase often used by those who allege voter fraud is widespread in the United States.

Many states have laws limiting political expression in immediate election environs. Minnesota is no exception, and poll workers told Mr. Cilek he must cover up or he would not be allowed to vote.

Last week the Supreme Court ruled that states do have the power to control speech within polling places, and that such controls must only be “reasonable” to be legal. But the T-shirt cover-up failed to clear even this low bar, wrote Chief Justice John Roberts for the majority. Minnesota’s law was so broad that even a “Vote!” button might conceivably be banned. The “Don’t Tread On Me” shirt should be allowed, wrote Roberts.

This decision does not mean your polling place is about to be overrun by voters dressed as political billboards or carrying blinking election signs, says Edward Foley, director of election law at the Ohio State University College of Law and author of “Ballot Battles: The History of Disputed Elections in the United States.”

In the Minnesota apparel case the court “took the claims seriously about whether these T-shirts interfere with the voting process, but said you can’t overdo that concern relative to the rights of people to express themselves,” says Mr. Foley. “It was a very careful decision, which is what you want.”

The high court’s 5-4 split decision on an Ohio case dealing with the removal of voters from the state’s rolls has drawn more attention, and perhaps more criticism, than the T-shirt case. On June 11, justices ruled in Husted v. A. Philip Randolph Institute that Ohio’s practice of canceling the registration of voters who do not go to the polls for a certain period and then do not respond to notice of impending removal does not violate federal laws.

Critics say Ohio’s practice will disproportionately affect minorities, the elderly, and poor voters who move from place to place. In a dissent, Justice Sonia Sotomayor noted that laws protecting voting rights were created “against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters.”

However, voters can avoid problems here simply by voting, or updating voter registration online, says Foley of the Ohio State University College of Law. No one is permanently hurt in terms of registration ability.

“My own take on it is that it is not as consequential as these other cases,” he says.

That mainly means the two gerrymander cases: Gill v. Whitford from Wisconsin, and Benisek v. Lamone from Maryland. The former challenged the statewide map of legislative districts drawn up by Wisconsin’s Republican-controlled state legislature. The latter challenged a single congressional district drawn by Democratic officials in Maryland.

Legal experts thought the two cases presented the high court with a golden opportunity to wrestle with the problem of limiting the partisanship involved in drawing district lines, once and for all. After all, heightened partisanship and modern technology has made gerrymandering the norm rather than the exception in many states, as lawmakers “crack and pack” districts to maximize the power of their constituencies.

But justices sent the Wisconsin case back to lower courts to reexamine whether challengers have a legal right to bring the case at all. In the Maryland case, they simply let stand the existing state districts for the 2018 election.

It isn’t quite right to say the court “punted” on this issue, say some legal experts. It appears justices are split along their own partisan lines, 4-to-4, on this issue – with one swing vote, Justice Anthony Kennedy, unsure of what a proper test determining excessive partisanship might look like.

The case determinations end the possibility that a Supreme Court decision on gerrymanders could play a role in the 2018 midterms. But it’s an issue that could soon end up in the high court again. A partisan gerrymandering challenge to North Carolina’s congressional map is one of the cases on the list for a possible hearing next Supreme Court term.

More than any other state, North Carolina is a place where the norms of political fair play seem to have broken down, says Foley. The atmosphere in the state is such that it may help prove that there has to be a constitutional limit to protect the process.

“It may ... turn out to be valuable for American democracy as a whole that North Carolina becomes the focal point, because the stakes could not be any clearer than in North Carolina,” he says.

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