Gerrymandering/Redistricting

When I was in the Supreme Court last December listening to oral arguments in Moore v. Harper, I was struck by Justice Amy Coney Barrett’s questions in this case that put the future of American democracy’s checks and balances at risk. Barrett doubted that the “independent state legislature theory” should give state legislatures absolute power to write laws for federal elections without facing state judicial review. And Barrett probed repeatedly about when, if at all, the Supreme Court should intervene in state court interpretations of state constitutions in these election cases.

Jay Heck, director of Common Cause, told the Wisconsin Law Journal he believes Vos’ threat of impeachment is hypocritical. “It’s such self-serving hypocrisy with Vos. Where was Vos in 2012 when conservatives all voted to dismiss illegal coordination with Walker and Club For Growth? It has been well documented that Walker engaged in coordination to raise money for his recall election, which was illegal. Candidates cannot coordinate with outside special interests, and the Legislature changed that in 2015, but I didn’t hear Vos, or conservative justices who received funding from Club for Growth, to recuse,” Heck said during an interview with the Wisconsin Law Journal. “It’s selective outrage,” Heck said, noting that Common Cause also held former Democrat Jim Doyle accountable for actions taken during his administration.

Regardless of how the state court rules, plaintiffs in an ongoing federal lawsuit plan to proceed with their case, explained Kathay Feng, an attorney and vice president of programs for Common Cause Florida, one of the groups challenging the map. "If they come to a final remedy that is very narrowly focused, there is still an opportunity for the federal case to examine the entire state map as a whole," Feng said. Although plaintiffs suing in state court have agreed to skip a trial, that's not expected to happen in the federal case, Feng said: "We are fully prepared to go to trial in September."

The brief was filed in state judicial district court by watchdog groups Common Cause New Mexico, Election Reformers Network and the League of Women Voters New Mexico and it supports neither party in the case. The amicus brief seeks to help the court apply the New Mexico Supreme Court’s three-part test that was adapted from U.S. Supreme Court Justice Elena Kagan’s dissenting opinion in the Rucho v. Common Cause case of 2019. “We are gratified that the district court is using the three-part test suggested by Justice Kagan in Rucho v. Common Cause,” Mason Graham, Common Cause New Mexico Policy Director, said in a press release. “It’s a reasonable way to determine if there was an unconstitutional partisan gerrymander and if the will of the voters was diluted or overturned.”

Dan Vicuña, national redistricting manager for Common Cause, said to back its answers to the test’s questions, “there is a range of evidence a court can use.” That includes qualitative data like legislative documents and testimony. Vicuña said that could mean asking questions like, “Were meetings held in secret? Did you see partisan votes in committees? Did you see secretive proceedings in which one party was boxed out of having any input?” Vicuña said the mixed results could mean the partisan intent suggested by the first test isn’t actually there, or that one test is potentially more appropriate than the other in evaluating New Mexico specifically. “What it creates is just an opportunity for experts to provide a variety of evidence and give the court an opportunity to weigh those,” he said.

“We’re very hopeful that what came out in Alabama will bode well for Florida,” said Kathay Feng, vice president of programs for Common Cause, one of the plaintiffs in the federal court challenge set for next month in Tallahassee. Feng said justices signaled that the “Voting Rights Act is not dead.”