Justices deal blow to effort to limit partisan districts

By Mark Sherman and Jessica Gresko
Associated Press

WASHINGTON (AP) — The Supreme Court dealt a huge blow to efforts to combat the drawing of electoral districts for partisan gain on Thursday in a ruling that could embolden political line-drawing after the 2020 census.

On the court’s final day of decisions before a summer break, the conservative justices ruled that federal courts have no role to play in the dispute over the practice known as partisan gerrymandering.

The decision has no effect on racial gerrymandering challenges. Courts have barred redistricting aimed at reducing the political representation of racial minorities for a half-century.

The next round of redistricting will take place in 2021, once census results are available.

In the redistricting case, voters and elected officials should be the arbiters of what is a political dispute, Chief Justice John Roberts said in his opinion for the court.

The court rejected challenges to Republican-drawn congressional districts in North Carolina and a Democratic district in Maryland.

“Our conclusion does not condone excessive partisan gerrymandering,” Roberts wrote, acknowledging that the North Carolina and Maryland maps are “highly partisan.”

But he said courts are the wrong place to settle these disputes.

In a dissent for the four liberals, Justice Elena Kagan wrote, “For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.” Kagan, in mournful tones, read a summary of her dissent in court to emphasize her disagreement.

Federal courts in five states concluded that redistricting plans put in place under one party’s control could go too far and that there were ways to identify and manage excessively partisan districts. Those courts included 15 federal judges appointed by Republican and Democratic presidents reaching back to Jimmy Carter.

But the five Republican-appointed justices decided otherwise.

The decision effectively reverses the outcome of rulings in Maryland, Michigan, North Carolina and Ohio, where courts had ordered new maps drawn, and ends proceedings in Wisconsin, where a retrial was supposed to take place this summer after the Supreme Court last year threw out a decision on procedural grounds.

Critics of partisan manipulation of electoral maps say that when one party controls redistricting, it can exaggerate and entrench its power, even in states that are otherwise closely divided between Republicans and Democrats.

Republicans were the big beneficiaries of the most recent round of redistricting in 2011, following the once-a-decade census, because they scored resounding victories in the 2010 elections.

Improvements in technology have allowed map-makers to draw districts with increasing precision, and advocates of limiting partisan districting have said the problem would grow even worse in the redistricting that follows the 2020 census.

The court was examining two cases, from Maryland and North Carolina, with strong evidence that elected officials charged with drawing and approving congressional districts acted for maximum partisan advantage. In North Carolina, Republicans ran the process and sought to preserve a 10-3 split in the congressional delegation in favor of the GOP, even as statewide races are usually closely divided. In Maryland, Democrats controlled redistricting and sought to flip one district that had been represented by a Republican for 20 years.

Both plans succeeded, and lower courts concluded that the districts violated the Constitution.

Proponents of limiting partisan gerrymandering still have several routes open to them. Among those are challenges in state courts, including a pending North Carolina lawsuit. Those court challenges can only work, though, in places that have state constitutional provisions that allow for them.

That’s how state court judges in Pennsylvania struck down Republican-drawn congressional districts and redrew the congressional map in 2018.

Court puts citizenship question on hold in census case

By Mark Sherman and Jessica Gresko
Associated Press

WASHINGTON (AP) — The Supreme Court on Thursday maintained a hold on the Trump administration’s effort to add a citizenship question to the 2020 census, and the question’s opponents say there’s no time to revisit the issue before next week’s scheduled start to the printing of census forms.

There was no word on whether the administration would continue pressing to add the question, which opponents say has the potential to affect the amount of federal money that goes to each state and their representation in Congress. The Census Bureau said in a brief statement only that the decision is “currently being reviewed.”

The American Civil Liberties Union’s Dale Ho, who argued against the citizenship question’s addition at the Supreme Court said “there really, really is not time” for the administration to revisit including the question.

The decision came on the last day the court was issuing opinions before a summer break. 

The Census Bureau’s own experts predict that millions of Hispanics and immigrants would go uncounted if the census asked everyone if he or she is an American citizen. And immigrant advocacy organizations and Democratic-led states, cities and counties argue the citizenship question is intended to discourage the participation of minorities, primarily Hispanics, who tend to support Democrats, from filling out census forms.

Democratic-led states argued to the Supreme Court they would get less federal money and fewer seats in Congress if the census asks about citizenship because people with noncitizens in their households would be less likely to fill out their census forms.

Chief Justice John Roberts wrote the court’s opinion in the census case, with the four liberal justices joining him in the relevant part of the outcome. Roberts said the Trump administration’s explanation for wanting to add the question was “more of a distraction” than an explanation. And he said evidence showed that Commerce Secretary Wilbur Ross “was determined to reinstate a citizenship question from the time he entered office.”

The court said Ross’ explanation that the question was being added to aid in enforcement of the Voting Rights Act doesn’t fit with the evidence. The Commerce Department oversees the Census Bureau. Roberts wrote there is “a significant mismatch between the decision the secretary made and the rationale he provided.”

It’s unclear whether the administration has time to provide a fuller account before the form must be printed.

Evidence uncovered since the Supreme Court heard arguments in the case in late April supports claims that the citizenship question is part of a broader Republican effort to accrue political power at the expense of minorities, the challengers say.

The Constitution requires a census count every 10 years. A question about citizenship had once been common, but it has not been widely asked since 1950.

At the moment, the question is part of a separate detailed annual sample of a small chunk of the population, the American Community Survey.

Ross decided in 2018 to add a citizenship question to the next census, over the advice of career officials at the Census Bureau. At the time, Ross said he was responding to a Justice Department request to ask about citizenship in order to improve enforcement of the federal Voting Rights Act.

Justices uphold precedents on deference to federal agencies

By Jessica Gresko
Associated Press

WASHINGTON (AP) — The Supreme Court on Wednesday rejected a conservative push to limit the power of federal agencies.

The high court declined to overrule two past cases that had been criticized by conservatives as giving unelected officials vast lawmaking power. But the way the justices clarified the older rulings led one justice to suggest that while the cases hadn’t been overruled they’d been left “on life support.”

Chief Justice John Roberts broke with his more conservative colleagues and joined the court’s four liberal justices in refusing to overrule the earlier cases. The court’s other conservatives were ready to, in the words of Justice Neil Gorsuch, “say goodbye” to the decisions.

The issue of overturning precedents is front and center during this term of the court as observers are watching to see how far and how fast a newly more conservative court is willing to go in its decisions. The court’s ruling was something of a surprise because when the court takes a case with the specific purpose of reconsidering whether to overrule a past decision it is generally a signal it is ready to do so.

The case the court was considering has to do with how courts should respond when an agency — such as the Transportation Security Administration or Mine Safety and Health Administration — writes a regulation that is ambiguous. Previous cases said judges should defer to an agency’s interpretation of its own ambiguous regulation if the interpretation is reasonable.

Justice Elena Kagan wrote that the approach makes sense: “Want to know what a rule means? Ask its author.”

Kagan, writing for a majority of the court, reiterated that an agency has “significant leeway to say what its own rules mean.” But she also explained the limits of when deference applies, noting among other things that the agency’s reading must still be reasonable and deference shouldn’t apply unless the regulation is genuinely ambiguous.

Conservatives have criticized the Supreme Court’s deference decisions for some time. Before his death three years ago Justice Antonin Scalia, who himself wrote the unanimous 1997 Auer v. Robbins decision the court was being asked to overrule, said it should be abandoned. Some of his conservative colleagues similarly questioned the decision and one from 1945 that preceded it, Bowles v. Seminole Rock & Sand Co.

Gorsuch wrote for himself and three fellow conservatives that it should have been easy for the justices to “say goodbye to Auer v. Robbins.” Instead, he said his colleagues left it on “life support.” He said the “new and nebulous qualifications and limitations” that his colleagues in the majority imposed mean the doctrine of agency deference “emerges maimed and enfeebled — in truth, zombified.”

The specific case before the justices involved Vietnam veteran James Kisor. Kisor has been diagnosed with post-traumatic stress disorder and has tangled with the Department of Veterans Affairs over disability benefits. Kisor said he should get benefits back to the 1980s while the VA, interpreting its own regulation, disagreed, saying he should only get benefits back to 2006. The justices sent Kisor’s case back to a lower court to be reviewed in light of the court’s decision.

The case is 18-15, Kisor v. Wilkie.

Court strike down Tennessee liquor sales law

By Mark Sherman
Associated Press

WASHINGTON (AP) — The Supreme Court on Wednesday struck down a Tennessee law that makes it hard for outsiders to break into the state’s liquor sales market.

The court voted 7-2 in ruling that a state requirement that someone live in Tennessee for two years to be eligible for a license to sell liquor violates the Constitution.

The outcome was a victory for a family that moved to Tennessee because of their daughter’s disability and a national chain with nearly 200 liquor stores in 23 states.

The case pitted the authority given to states to regulate alcohol sales in the 21st Amendment that repealed Prohibition in the United States against the constitutional principle that only Congress, not the states, can regulate interstate commerce.

Justice Samuel Alito wrote in his opinion for the court that states have considerable power to regulate the sale of alcohol, but they can’t discriminate against out-of-state interests. The predominant effect of the residency requirement is to protect Tennessee liquor sellers “from out-of-state competition,” he wrote.

In dissent with Justice Clarence Thomas, Justice Neil Gorsuch wrote that the 21st Amendment left the regulation of alcohol to the states.

The case began when the Tennessee Wine and Spirits Retailers Association opposed the issuance of licenses to Doug and Mary Ketchum, who moved to Tennessee from Utah, and the national chain Total Wine Spirits Beer & More for a store in Knoxville, Tennessee.

The Ketchums operate Kimbrough Wines & Spirits in Memphis. Their 34-year-old daughter, Stacie, has cerebral palsy and suffered serious respiratory problems in Utah.

“This has been three years of nail-biting, waiting for this final opinion. This decision now means no more looking over our shoulder and worrying if they’re going to take away our license,” Doug Ketchum said in a statement provided by the Institute for Justice, which represented the family at the Supreme Court.

There were two provisions in play initially, two years of residency before obtaining a license and 10 years in Tennessee before a liquor license can be renewed.

Both residency provisions were struck down by lower courts, and the retailers’ association dropped its defense of the longer requirement.

The retailers argued that having people in the state for two years made it easier for authorities to do background checks and seize a liquor seller’s financial assets if necessary.

Thirty-five states and the District of Columbia backed the retailers’ association, but Tennessee itself had essentially stopped defending the residency requirements.

Arguments in the case took place in January on the 100th anniversary of ratification of Prohibition, the constitutional ban on the manufacture and sale of alcohol in the United States. Prohibition ended in 1933.

The case is Tennessee Wine and Spirits Retailers Association v. Thomas, 18-96.