Swing State Voter Map Thrown Out as Unconstitutional

since was permeated by quote invidious partisan intent. Joining me is Josh Douglas, a professor at the University of Kentucky College of Law and author of the book Vote for Us.

Josh explained the panel's decision and reasoning thanks the opinion was three pages, so we probably take a long time to explain all of it, but simplified essentially, the panel unanimously ruled that Ohio's partisan jerrymander was unconstitutional both under the Equal Protection Clause and the First Amendment, and essentially saying that the map was drawn with both the partisan intent and a partisan effect, and the state couldn't justify it by any means beyond just a blatant desire to

harm the minority political parties. This decision is the latest in a string of state and federal court decisions striking down maps. Is there a common thread in all these decisions? Well, I think there's a couple of common threads. One is that numerous judges now have found that there are judicially

manageable standards to consider and analyze partisan jerrymandering. You know, many justices of the Supreme Court have said essentially that the Court should not be open to these claims because there's no way for judges to craft the judicial test that would determine when jerrymanders go too far. And now you have multiple courts all call lessing around a standard.

And then the other thing that's common is the standard that's actually being used, which is this combination essentially of an intense framework as well as an effect framework demonstrating the partisan effect that the maps have, essentially meaning that the map makers packed and cracked the other side of voters in such a way to ensure that they can stay in power. Josh, do all these decisions depend now on how the Supreme Court rules in the two gerrymandering

cases it has before it. Yeah, essentially, so all these cases are before three judge district courts with direct appeal to the U. S. Supreme Court, So they'd skip over the Court of Appeal stage and have a direct appeal. But as you note June, the Supreme Court has two cases pending before right now, one from North Carolina and the other from Maryland. And if the Court says that there are no anders out there and that the Court shouldn't be involved in these cases, essentially would go away.

I think that would be pretty strange for the Court to say that now that we have four different courts in recent months ruling on constitutional and jerry manders. And then if the Court does set out of standard in the Maryland or North countline of cases, will have to see to what extent that is consistent with the standards that these lower courts have used. Well, the Supreme Court before decided not to make a broad ruling about partisan gerrymandering.

Is it likely that the Justices might try to evade that as well this time? Well, I think it's hard to say. Again, these cases come on direct appeal, so essentially the Court has to take them even refusing to hear the case would act as a summary affirments. Given the unique nature of the procedural posture, where the Court isn't granting certain like it does in normal cases on

the discretionary basis, it's a mandatory direct appeal. And so the court had to do something with the Maryland and North Carolina cases just like it will have to do something with these other cases once eventually they are appealed. So the question then becomes, well, what will the court actually do in these North Carolina and Maryland cases? You know, on the one hand, they could try to set out a standard and then say, okay, here's a test to

root out the worst of the partisan jerrymanders. But there might be five votes to say that the courts simply should stay out of the business altogether, that this is part and parcel of politics, and that there are no judicially manageable standards out there, in which case the courts would have to essentially stay out and these lower court cases would be vacated. So now let's go back to the ruling here. If it does stand, will they be able to make the deadline of mid June to draw

a new map? Well, that's obviously going to be difficult, especially because you know, we're only a couple of months out from the new deadline. My suspicion is that Ohio will appeal this to the Supreme Court and ask for a stay, and that the court will stay the case

until it decides the Maryland and North Carolina case. So I suspect that we won't see any real action in terms of redrawing lines, even if this map were to be upheld until after the Supreme Court does what it decides to do in the North Carolina and Maryland cases. And Josh, is there a way of telling in these cases if the cases continue as they are without being reversed,

is it advantage Democrats or advantage Republicans or you can't tell? Well, I think it's advantage to whoever does not currently control the map drawing process. You know, in Ohio and in Michigan the other case that came down last week, it was the Republicans that have been drawing the lines to a trench themselves in power. But in the Maryland cases, the Democrats who drew at least one particular district to

make a from favor Republican to favor Democrats. In North Carolina, it was been the Republicans who have controlled the map drawing process. So essentially, if the courts step in and say we're going to craft the test to root out the worst partisan jamanders, just like this Ohio court did, then it takes some power away from where a lot of power away from the party that currently controls the

legislature and can draw the lines. And now the other thing I noticed that this case really only apply in Ohio because the state's voters did pass a form of redistricting commission that would take the process, at least initially out of the hands of the legislature. And I think that's also an important thing to think about, is that when we do the new roundity districting, the process will look a lot different in many places. Do you think redistricting by commission is the best way to do it?

I do, um, because we've seen that commission it, especially one that's independent, that has multiple voices, you know, has greater independence and therefore greater fairness. You're not trying to entrench one side or the other. All right, Thanks so much, Josh. That's Josh Douglas, professor at the University of Kentucky College of Law and author of the book Vote for Us. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg