November 5 - The Impact of Women Running for State Office
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The U.S. Supreme Court’s fall term, which began last month, looks to be a momentous one, with the justices expected to weigh such matters as whether there’s a constitutional limit to partisanship in the drawing of voting districts and whether the First Amendment right to religious freedom trumps state laws banning discrimination based on sexual orientation. The cases involving those issues and several others on the docket could have major implications for state and local governments.
After being shorthanded for over a year - as a result of the death of Justice Antonin Scalia and U.S. Senate Republicans’ unwillingness to consider President Obama’s nominee to fill that vacancy with less than a year left in the president’s term - the Supreme Court has returned to full strength. And in its first full term with President Trump appointee Justice Neil Gorsuch on the bench, the court has decided to take on several big cases.
One of the most significant is Gill v. Whitford, No. 16-1161. The case revolves around the redistricting plan for the Wisconsin Assembly drawn by that state’s Republican majority after the 2010 Census. Last year a three-judge panel of the U.S. District Court for the Western District of Wisconsin ruled 2-1 that the plan, known as Act 43, was “an unconstitutional political gerrymander.”
“We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats,” the majority wrote in its 159-page decision.
Although the Supreme Court has repeatedly ruled against racial gerrymandering, it has never ruled against partisan gerrymandering. The last time it heard a case dealing with that issue, however - in 2004 with Vieth v. Jubelirer - Justice Anthony Kennedy wrote in a concurring opinion that courts could provide relief from partisan gerrymandering if they had a “workable standard” for determining when a gerrymander imposed too great a “burden on representational rights.”
The plaintiffs in the case are seeking to establish such a standard: a new method of measuring how votes translate into victories known as the “efficiency gap.” Developed by Nicholas Stephanopoulos, an assistant professor at the University of Chicago Law School, and Eric McGhee, a research fellow at the Public Policy Institute of California, the efficiency gap in an election is “the difference between the parties’ respective wasted,” those either cast for the losing candidate or for the winning candidate in excess of what he or she needed to win, according to an article published in the University of Chicago Law Review.
The gap is calculated by totaling each party’s wasted votes, subtracting one sum from the other and dividing the difference by the total number of votes cast. The resulting percentage indicates how much more efficiently one party translated votes into seats than the other, presumably because it controlled the redistricting process, determining how the wasted votes were distributed among the various districts. The plaintiffs in Gill v. Whitford calculated “pro-Republican efficiency gaps of 13% in 2012 and 10% in 2014 - meaning that Republicans won 13% and 10% more seats, respectively, than they would have under a neutral map,” court documents indicate.
According to Annabelle Harless, a lawyer for the Campaign Legal Center, which is working with the plaintiffs in the case, the justices “could adopt the test plaintiffs propose, they could in theory come up with their own standard, or they could say it’s not justiciable [not an issue for courts to decide],” as Governing reported.
Given that four of the justices appear committed to the belief that partisan gerrymanders aren’t a judicial matter while four others seem just as convinced that they are, the court’s decision in the case may ultimately come down, as it often does in 5-4 rulings, to what Justice Kennedy decides.
“Justice Kennedy’s views,” Joshua Douglas, a law professor at the University of Kentucky, told Governing, “are really the whole ballgame.”
A ruling upholding Wisconsin’s map would likely encourage more aggressive gerrymanders. A decision affirming that there’s a constitutional limit to partisan gerrymandering, however, would undoubtedly spur legal challenges to other legislative and congressional remaps across the country and potentially lead to shifts in the partisan composition of some legislative bodies.
“Depending on how the court reaches its decision, we could see a significant, dynamic change in the makeup of state legislatures and Congress,” said Chuck Thompson, executive director of the International Municipal Lawyers Association, according to another report by Governing.
The justices have also agreed to hear another voting rights case of note for states this term, Husted v. A. Philip Randolph Institute, No. 16-980, concerning the constitutionality of Ohio’s efforts to clean up its voter rolls by purging inactive voters. The plaintiffs argue that federal law explicitly prohibits states from removing registered voters for failing to vote. But in a reversal from the Obama administration, the Trump administration has filed a brief with the court in support of Ohio’s position. And at least a dozen other states also purge inactive voters from their registration lists.
Another of the term’s biggest cases is Carpenter v. United States, No. 16-402, concerning the privacy of customer location data held by cellphone companies. Kannon Shanmugam, an attorney who heads the Supreme Court and Appellate Litigation practice at the legal firm of Williams & Connolly and who has argued 20 cases before the court, called it “the most consequential case currently on the court’s docket,” while Nathan Freed Wessler, a lawyer for the American Civil Liberties Union, which is representing the petitioner, Timothy Carpenter, in the case, said it was “the most important Fourth Amendment case we’ve seen in a generation.”
In 2013 Carpenter was convicted of taking part in a series of robberies based in part on evidence provided by location data from his cellphone. Carpenter appealed his conviction on the grounds that prosecutors had failed to obtain a search warrant for his cell phone records, violating the Fourth Amendment’s prohibition against unreasonable searches and seizures. But the appeals panel rejected Carpenter’s argument, reasoning that his Fourth Amendment right had not been violated because there is no “expectation of privacy” with location information that cellphone users knowingly expose to their service providers.
In 2014, however, the Supreme Court ruled in Riley v. California that a warrant was required to search a cellphone, and in 2012 in United States v. Jones it ruled that the use of a GPS device to track an individual’s movements constitutes a search entitled to Fourth Amendment protection. And as Justice Sotomayor stated in her concurring opinion in Jones: “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties....This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
The court will also consider a couple of major workers’ rights cases. In Epic Systems Corp. v. Lewis, No. 16-258, the justices will consider whether employers can use arbitration clauses in employment contracts to prevent their workers from banding together to sue them over workplace issues. The court has shown a preference for contracts that provide for the resolution of disputes through arbitration rather than litigation. It has also sanctioned class-action waivers in the arbitration provisions of consumer contracts, like those used by cell phone and car rental companies. The question is whether those inclinations will extend to employment contracts. The plaintiffs in the case argue that employment contracts are different because the National Labor Relations Act protects “concerted activities” by workers.
In Janus v. American Federation of State, County and Municipal Employees, No. 16-1466, the court will consider whether government workers who opt out of joining unions can be forced to support the unions’ collective bargaining efforts. If the court says no, millions of public workers spread across 20 states could opt out of making those payments, sapping unions’ power.
In 1992 Congress passed the Professional and Amateur Sports Protection Act, prohibiting state-sponsored sports gambling, except for the sports wagering legalized before that date in Nevada and a few other states. The constitutionality of that law is at the center of another case that will come before the Supreme Court this term: Christie v. National Collegiate Athletic Association, No. 16-476.
In 2014 New Jersey, which is not one of the states with a sports betting operation exempted from the federal prohibition against sports wagering, passed SB 2460, allowing sports betting at casinos and horse racetracks in the state. Last year the U.S. Court of Appeals for the Third District struck down that law on the grounds that it violated the Professional and Amateur Sports Protection Act. And earlier this year the Supreme Court agreed to hear an appeal of that decision, which Gov. Chris Christie (R) took to be “a very good sign for sports betting having a future in New Jersey,” according to the New York Times.
We’re not declaring victory, but at least we’re in the game, and that’s what we want to be,” he said.
Other states have been looking to get in the game too. Connecticut, Mississippi and Pennsylvania have all passed legislation this year that would allow sports betting within their respective borders if there’s a change in federal law permitting it, according to the Legal Sports Report. And with sports betting now nearly a $5-billion-a-year industry in Nevada, more states will undoubtedly do the same if the court strikes down the federal ban.
One of the most controversial cases the court will consider this term is Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111. The case concerns a baker who refused to make a wedding cake for a same-sex couple, saying it would go against his Christian beliefs. That action violated the law passed by the state in 2008 banning discrimination on the basis of sexual orientation by any business “offering services, facilities, privileges, advantages, or accommodations to the public.” As of 2016 22 states had such laws, according to the National Conference of State Legislatures.
Which way the Supreme Court will go on the case is difficult to predict. As the New York Times reported, the court has consistently ruled in favor of gay rights in recent decades and declared a constitutional right for gay couples to marry in 2015 with Obergefell v. Hodges. But it has also shown consideration for business owners’ religious principles, as in Burwell v. Hobby Lobby in 2014, when it ruled that some companies did not have to comply with a federal regulation mandating that employers provide free contraceptive coverage for their female workers.
In addition to the major cases already on the docket, the court could also decide to hear a case from South Dakota that Lisa Soronen, executive director of the State and Local Legal Center, described as “the biggest state and local government case since I don’t know when.” The case involves a law passed by the state in 2016, requiring out-of-state retailers to collect sales taxes on purchases from customers located in the state. The law was actually intended to provoke a legal challenge with the ultimate aim of overturning the U.S. Supreme Court’s 1992 ruling in Quill Corp. v. North Dakota, barring states from requiring retailers without an in-state physical presence to collect and remit sales taxes.
Justice Kennedy issued an engraved invitation for that challenge in 2015, writing in a concurring opinion in Direct Marketing Association v. Brohl, “The legal system should find an appropriate case for this Court to reexamine Quill...” He also noted that e-commerce sales had grown dramatically in the 25 years since that ruling. NCSL reported that Justice Gorsuch “raised similar concerns” about Quill while serving on the U.S. Court of Appeals for the Tenth Circuit.
There has been speculation, however, that Kennedy, who is now 81, may soon retire. States will be hoping the court takes up the case before that happens. A study by the National Conference of State Legislatures and the University of Tennessee estimated that in 2012, states collectively missed out on $23.26 billion in sales taxes as a result of the Quill decision.