I had been expecting this case would be sent back like the Common Cause and Legal of Women Voters partisan gerrymandering cases in NC for a new trial. But this was a summary affirmance. A summary affirmance means the lower court (which rejected the claim) got the RESULT right /2
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but not necessarily the right reasoning. So how to read this summary affirmance? Does it mean that the lower court was right that there are no standards to decide when gerrymandering goes to far? Or were there other defects?
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This matters because we will now see North Carolina argue in the remaining cases that the the summary affirmance means that these other cases should be dismissed too. Opponents will argue against dismissal. The cases will make their way back to the Court /4
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And when the Court gets the NC partisan gerrymandering cases again, likely early next term, there will be no Kennedy but there will likely be a fifth vote to finally hold these issues "nonjusticiable," meaning they can't be decided by the courts. /5
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Justice Scalia took the position that partisan gerrymandering cases were non-justiciable back in 2004 but J. Kennedy---the deciding vote---said we need more time to consider if there is a manageable standard. /6
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This term's Gill and Benisek cases gave Kennedy the chance to finally agree to rein in gerrymandering. But he stayed silent even as J. Kagan in her concurrence fleshed out Kennedy's favorite theory that it violates the First Amendment /7
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It is hard to believe that Scalia III (Gorsuch II) would do anything but side with Roberts, Alito, Thomas and Gorsuch that these cases are nonjusticiable and courts should stay out. /8
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Today's summary affirmance will just give another argument to
#ncga to try to avoid being reined in by the courts. But make no mistake: the kind of sharp gerrymandering practice in NC will now spread throughout the country in the 2020 round of redistricting /9Show this thread -
as with many things, things that seem bad will be much worse with Kennedy gone. /10
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Here's the
@SCOTUSBlog page for the lower court petitionhttp://www.scotusblog.com/case-files/cases/harris-v-cooper/ …Show this thread
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But her emails!
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Sounds like our only hope is a federal law establishing a justiciable standard. And as long as the party placed in power by gerrymandering remains, this will not happen.
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The next question is will Rs in SC fight/appeal til its too late to correct for 2018. The lack of opinion could mean the was not ripe for review or, hopefully, the partisan basis is a non-starter.
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*the case was not...
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See, partisan. Not racial. Former, political question court can’t handle. Race discrimination doesn’t exist. Nothing to decide.
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