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View Diary: Uh Oh - GOP Caught Red Handed + More (151 comments)

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  •  IANAL, but a good possibility (11+ / 0-)

    A few things would need to happen:
     1. The court would have to re-open the case.
     2. The plaintiffs would have to prevail on at least one point they didn't before.
     3. The court would have to do the redrawing itself rather than tell the legislature to do it again.

    (1) I'd wager as more likely than not.  Any judge worth their salt would be seriously, seriously pissed off by the behavior of the defendants here.  Evidence has been withheld (repeatedly), evidence has been destroyed.  The defendants are owed nothing at all.

    On (2), looking at the original ruling:

    Claims 1 and 8 (equal population of districts and keeping communities of interest together, page 17) were dismissed - apart from the AD8/9 change - on the grounds that the district populations were very equal already, so despite the plaintiffs hitting a home run on the evidence front, they needed a grand slam.  With the presumption that evidence harmful to the defense was that which was destroyed, there's a chance of a change of mind there.

    Claim 3 (the number of voters shifted from even to odd districts, thus costing them an extra 2 years between opportunities to vote for senate representation, was unconstitutionally excessive, page 19) was dismissed because no particular group was singled out by the burden of it.  Since the geographical distribution of groups is a fact independent of what might have once been recorded on hard disks, this is unlikely to change.

    Claims 4 and 5 (redistricting was partisan, divided communities of interest and wasn't compact, page 20) were dismissed largely because the plaintiffs didn't provide a workable legal standard for deciding how much partisan gerrymandering is too much.  With the ability to presume that the redistricting was entirely motivated by partisan gerrymandering, the plaintiffs could propose an extremely low bar that Acts 43 and 44 fail to clear but would be nigh impossible for the defendants to argue was too high.  Any revisitation of this one with a test introduced would very likely wind up at the SCOTUS: Act 44 being more likely to prevail since the Democratic incumbents were consulted on the boundaries.

    Claim 6 (the Latino population of Milwaukee was unconstitutionally divided such that they formed large blocs of two districts rather than having one where they were in the majority, page 23) was upheld and led to the AD8/9 court redrawing.

    Claim 9 (whether recalls and special elections should be held in new or old districts, page 31) is now moot.

    Claim 2 (that redistricting prior to local muncipality changes violated federal standards), part of claim 6 (regarding making 6 African-American districts in Milwaukee while a seventh 'influence' district was possible), and claim 7 (race or ethnicity was the primary reason for drawing certain districts) were abandoned before trial.  Could the plaintiffs revive these, especially claim 7?  If they have any evidence for claim 7 together with the presumption that the destroyed evidence supported it, defendants would now be hard-pressed to refute it.  Claim 2, like claim 3, doesn't depend on anything that might be recorded on hard disk, and 6 and 7 only pertain to certain districts, so I can't see any of these leading to the entire map being thrown out.

    So I can see a chance for the prior verdict on claims 1&8 being changed, and the possibility of making history on claims 4&5.

    On (3), fat chance: the panel has already handed redistricting back to the legislature only to have it thrown back in their face.

    I'd guess that the best bet for an invalidation of all districts is claims 4&5 and the SCOTUS may be prepared to accept a new test of whether a gerrymander is constitutional or not as both workable and manageable.  From their 2004 decision in Vieth v. Jubelirer:

    A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.

    Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

    by GeoffT on Wed Mar 13, 2013 at 05:49:21 PM PDT

    [ Parent ]

    •  Since the new districts were used in (3+ / 0-)
      Recommended by:
      akze29, exterris, Creosote

      November 2012 and Republicans "won" a massive majority in the legislature and Congress despite Democratic candiates overall receiving 200,000 more votes is definitely evidence of gerrymandering IMHO.  Can the courts be swayed by this now established fact if they reopen the entire case?

      BTW - the "new" maps couldn't be used until the November 1012 elections in accordance to the redistricting law (Claim 9), but the GOP was trying to use them early to ensure victory in the recalls.

      There already is class warfare in America. Unfortunately, the rich are winning.

      by Puddytat on Wed Mar 13, 2013 at 08:36:58 PM PDT

      [ Parent ]

      •  I doubt it (3+ / 0-)
        Recommended by:
        Puddytat, akze29, pdx kirk

        It's not that redistricting with a political aim doesn't exist - that's well-established, and acknowledged by this panel of judges already.  The issue is that there doesn't exist any legal test for its constitutionality: provided that the redistricting follows constitutional principles of equal protection (equipartitioning and not disadvantaging any protected class - which doesn't include partisan affiliation) courts have had little choice but to wave them on.  At what point does the set of a hundred thousand lines that bound districts shift from being constitutional to being unconstitutional?

        The opportunity here is to suggest a legal test along the lines of "if the drawers of the map considered alternatives that they knew better met the constitutional condition of equal protection and discarded them because of the likely electoral results".

        Who is to say that the map drafters didn't consider better alternatives, discarded them, then deleted the evidence that they were even aware of the possibility?  I'll tell you who can't do that now: the defense.

        Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

        by GeoffT on Wed Mar 13, 2013 at 09:44:22 PM PDT

        [ Parent ]

    •  You MAWBAL :) (3+ / 0-)
      Recommended by:
      exterris, Puddytat, pdx kirk

      Most impressive analysis, thanks!  (from a recovering lawyer....)

      "A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home." - James Madison

      by gharlane on Wed Mar 13, 2013 at 11:59:33 PM PDT

      [ Parent ]

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