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Waiting on the Court

May 25, 2019 in Economics

By Walter Olson

Walter Olson

Some time between now and the end of June the U.S. Supreme Court is expected to rule in Lamone v. Benisek, the case challenging the gerrymander of Maryland’s Sixth Congressional District, which includes Frederick. Here’s a quick guide to what to expect.

When will we know? The Justices heard argument March 26. Typically it takes the Court more than two months to decide a case: as of this week it has ruled on only one case each from its February and March sittings. If that pattern holds up, it will decide this case in June, the last month of its term.

One reason to think the decision might come late in June rather than early: when the Court has a case it knows will be highly controversial, it often tends to hold its release until the final days of its term.

If it reverses the lower court and upholds the existing map. Three conservative Justices have taken the view that federal courts lack the power to remedy partisan gerrymanders. Should newcomers Neil Gorsuch and Brett Kavanaugh agree, the lawsuit probably ends and the existing map stays in place for the 2020 election. That doesn’t mean gerrymandering won’t be be back in the news before long, since the upcoming Census will set in motion a new required cycle of map-drawing nationwide.

If it upholds the lower court and rules the map unlawful. The case then goes back to the three-judge federal panel to order a remedy. Note that the court ruled on the lawfulness of only one Maryland district, the Sixth. That’s not because others such as the Third, Fourth, and Seventh aren’t gerrymandered just as weirdly. But the litigation as it went along got narrowed down to challenge only the one district that changed partisan hands as a result of Gov. Martin O’Malley’s map, which was the Sixth.

When courts find just one district unlawful, they tend to favor a remedy that tinkers no more than necessary with other districts. At one point, the court suggested it would be amenable to a plan that swapped territory between the Sixth and the adjacent Eighth, amounting to minimally invasive surgery.

Who would devise a new plan? If it chooses, the legislature could come back into session to adopt a map it hopes the court might accept. Or Attorney General Brian Frosh, who has defended the gerrymander each step of the way, could do so.

In its November ruling, …read more

Source: OP-EDS