Supreme Court Agrees to Take Up Cases on Rule of Law and Citizens’ Right to Vote

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Washington, D.C.

Someone has to confront politicians who illegally carve out gerrymandered districts to perpetuate their time in office. This is something that Judicial Watch is happy to do.

Fortunately, thanks to Judicial Watch’s legal efforts, the Supreme Court will hear two cases that may vindicate the rule of law and protect Americans’ right to vote.

First, the Supreme Court granted certiorari in Shapiro et al. v. Mack et al., in which several Maryland citizens had challenged the state’s 2011 legislative redistricting plan on the grounds that it violates Marylanders’ voting rights through creation of unreasonably gerrymandered districts. Their case was short-circuited by the Fourth Circuit Court of Appeals, which dismissed the lawsuit. Even worse, the Fourth Circuit’s dismissal violated the Three-Judge Court Act by allowing a single judge to rule on this gerrymandering challenge. Judicial Watch was the only party to file an amicus brief in this case.

The Three-Judge Court Act requires that three-judge panels must hear all constitutional challenges to legislative redistricting unless, according to past Supreme Court rulings, the case is “obviously frivolous,” “essentially fictitious,” “wholly insubstantial” or “obviously without merit.” In 2003, the Fourth Circuit Court departed from this precedent, determining that a single judge could decide not to convene a three-judge panel if he determined the case was not “plausible.” The Fourth Circuit applied the same standard in its 2014 ruling against the Shapiro plaintiffs.

The events in Maryland make it painfully clear that unelected judges and power-hungry politicians are out to undermine the rights of average citizens while gutting the rule of law.

The highest court in the land can now send out a powerful message that says “No one is above the law, not even the federal courts.”

The Maryland maps are cynical and insulting to the republican ideals of the nation. Even the liberals of the Washington Post were scandalized: “The map… mocks the idea that voting districts should be compact or easily navigable. The eight districts respect neither jurisdictional boundaries nor communities of interest. To protect incumbents and for partisan advantage, the map has been sliced, diced, shuffled and shattered, making districts resemble studies in cubism.”

Judicial Watch’s amicus brief argued that the Fourth Circuit decision “raises an important issue of federal election law that should be heard by this Court” and detailed Judicial Watch’s legal efforts on the Maryland gerrymandering issue:

In particular, Judicial Watch is concerned that the Fourth Circuit’s ruling violates the Three-Judge Court Act and will allow states to delay judicial review of gerrymandered redistricting plans that disenfranchise voters and violate the Constitution.  Judicial Watch has represented parties in two recent cases [here and here for more info.] in Maryland concerning a ballot referendum on the state’s gerrymandered redistricting plan. Moreover, Judicial Watch may wish to be involved in challenges to gerrymandering on behalf of members or clients in the future, and believes the federal judiciary should not be erecting further obstacles to review.

Thankfully, the Supreme Court has guaranteed that Maryland’s citizens will, at the least, get a fair hearing based on the law. For more than 40 years, Congress and the courts have recognized the importance of voters’ ability to challenge how a state draws congressional and state legislative districts. The Fourth Circuit, however, has limited voters’ power to challenge redistricting laws. The decision by the Supreme Court is a step toward checking judicial legislating and protecting the right to vote. Attorneys Meir Feder and Rajeev Muttreja of the Jones Day law firm prepared and filed this amicus brief on Judicial Watch’s behalf.

Another redistricting case out of Texas also came out in Judicial Watch’s favor. In March of this year, Judicial Watch joined with frequent amicus partner, the Allied Educational Foundation (AEF), to file a brief in support of Sue Evenwel, a Texas resident who filed a lawsuit to overturn a Texas “malapportionment” law (Sue Evenwel, et al. v. Greg Abbott, et al. (No 14-940)).

The law, passed in 2013, drew up districts for the Texas state senate based on total population rather than the number of eligible voters, giving voters in districts with large numbers of non-voting-eligible aliens disproportionate power compared to voters in districts with higher numbers of legal residents. This policy has resulted in some Texas voters effectively gaining more voting power than Texans in different districts, with the Texas redistricting giving “some of its citizens approximately 1.8 votes while [leaving] others [with] only 1 vote.” This law was the result of Republican redistricting efforts.

As a result, the high numbers of non-voting-eligible immigrants – whether legal or illegal – in Texas’ urban centers substantially inflated the voting power of the lesser number of eligible voters who also reside in those districts. The situation is particularly acute in urban areas like Dallas and Houston, where up to 50 percent of voting-age Hispanics are not currently U.S. citizens. The Evenwel plaintiffs challenged the constitutionality of this scheme, but were unable to convince the lower courts. They subsequently went to the Supreme Court with the support of Judicial Watch and AEF. Thankfully, the Supreme Court agreed to take up the case, noting that it had “probable jurisdiction” (which is another method under which the Court can fully review a case).

These issues are important. As Judicial Watch notes in the amicus brief:

Texas is devaluing the votes of certain of its citizens by improperly including noncitizen nonvoters when determining the “equal population” of legislative districts. Under federal law and the laws of all 50 states, only citizens may vote in federal elections. Texas’ scheme to give weight to nonvoting noncitizens along with lawful voters is contrary to the principles embodied in citizen voting laws.

You can learn more about the issue here. This case has national implications. Citing the extraordinary fact that the non-citizen population in the United States has doubled since 1990, Judicial Watch and AEF’s brief requests the Supreme Court finally settle the issue of whether the U.S. Constitution requires that non-citizens be counted when setting up voting districts:

Out of a total 2012 population of 311 million… roughly 7 percent of the modern U.S. population lacks citizenship – or about 1 in 14 people … Accordingly, the opportunity for legislators to resort to the tactical use of non-citizen populations to dilute the voting power of citizens is greater than ever.

Not surprisingly, some on the Left are apoplectic that the Court might question the constitutional propriety of allowing tens of millions of foreign nationals, many here illegally, to be used to dilute the voting power of American citizens. As a liberal Supreme Court watcher at the New York Times notes, the Evenwel case “looms so far as the dominant case of the court’s next term.”

These two new Supreme Court cases are “looming,” in part, because of the tenacity and legal leadership of Judicial Watch. Now that they are before the Court, Judicial Watch will continue to give citizen voters a voice as the justices consider the cases next term.