Tag Archives: shadow docket

They Do It Again

Posted on by One comment

With just 39 days to go before the midterm elections the conservative majority on the Supreme Court couldn’t keep its hands off the ballot box. Once more they have used its secret shadow docket to overrule two detailed lower court decisions, allowing their patron Donnie Trump to include records from the Social Security Administration (SSA) in the Department of Homeland Security’s Systematic Alien Verification for Entitlements (SAVE) database made available to state offices. This allows states to request bulk searches using full or partial SSNs and linked SSA’s master files to verify citizenship for voter registration. Critics fear that states could use the system to purge large numbers of valid voters from their rolls ahead of the midterm elections.

The decision is bad because the Court should not be getting involved in elections, which the Constitution makes clear is, absence legislative action by Congress, a matter for the states to administer. Trump has in fact been pushing Congress to take such action but has failed to get new laws enacted in spite of a majority in both the Senate and the House. Once again, the conservative Court majority just can’t resist tipping the scales in favor of their president.

On the other hand, the order in Department of Homeland Security v. League of Women Voters is not expected to have much of an impact on this November’s election. That is because states are not required to use the federal system, as they might be is a new federal law was anacted, and there is little interest among local and state election officials for it, because it has mistakenly flagged U.S. citizens as noncitizens in past searches.

The Court majority, clearly embarrassed by criticism of its use of the emergency docket to render significant judgments without explanation has, at least, been writing short explanations in recent actions. In this case they wrote that a lower-court ruling which had blocked the administration from rolling out the system was improper because it inhibited “the federal government’s efforts to assist state and local agencies in the proper administration of the midterm elections.”

The emergency ruling was unsigned and gave no vote count, but the court’s three liberal justices joined in dissent, making the 6-3 party line vote obvious. In that 12-page dissent, Justice Ketanji Brown Jackson wrote that the majority’s decision created the conditions for some states to cancel the voter registrations of at least some recently naturalized citizens or to force them to provide proof of citizenship before voting.

“The harm caused by burdening or disenfranchising even a few lawful voters outweighs the nonexistent harm that the government experiences when it is prevented from taking an action that it likely lacks the authority to take,” she wrote, joined by Justices Sonia Sotomayor and Elena Kagan.

Federal law establishes a 90-day “quiet period” before elections, in which wide-scale changes to state voter rolls cannot be made. The provision is meant to avert last-minute chaos in elections and is expected to prevent states from kicking large numbers of voters off their rolls in the weeks leading up to the midterm. Even the majority recognized that the 90-day rule “limits the potential impact” of the court’s action. However, the majority added that states should have the ability to use the federal system to make inquiries about voters on a case-by-case basis.

The conservatives on the Court could have left this matter alone. But that is not their style. The primary issues remain to be hammered out in the lower courts, as they should be. The real threat will be to the election for president in 2028.

Interestingly, the Court also unanimously blocked a Republican-backed congressional map in Missouri for a third time, People Not Politicians v Robert Onder, reverting the state to its 2022 map boundaries for November. With this action the Supremes rejected an appeal backed by the Republicans and the Trump administration, stating that Missouri must conduct its 2026 congressional election using the 2022 map lines following a state court determination that the newer map required voter referendum approval.

It has been a busy summer for the Court. The regular Court term doesn’t even start until October 5!

#####

The Donnie-Mander

Posted on by Leave a comment

The Supreme Court, or rather the six Republican justices on the Supreme Court, have handed Donald Trump another victory. They issued a stay, blocking the order of a three-judge panel in Texas, which found the recent reapportionment of the state’s Congressional districts to be racially motivated and therefor illegal. The six, has been their pattern all year, issued their order in the dark of night on the “shadow” docket without an explanation or opinion. Greg Abbott, et al. v. League of United Latin American Citizens, et al.

The map the lower court panel blocked was seen as one of the most aggressive mid‑decade gerrymanders in recent history. The Supreme Court stay allows Texas to proceed with the new map, which analysts say could give Republicans five additional U.S. House seats in the 2026 midterms.

Gerrymandering 101

What, in a nutshell, is gerrymandering? The Encyclopedia Britannica has a wonderful explanation from which I have borrowed the graphic above. The American Constitution requires that every ten years we conduct a “census” to apportion representation in the House of Representatives. The Fourteenth Amendment, Section 2 begins, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

Once the number of representatives is determined by the census, it is up to each state to draw the maps of legislative districts. Because the states have statewide elections for senators, governors, and to decide members of the Electoral College, there is data on how the state as a whole divides between the parties. Using the graphic above we find of a total population of fifty, thirty (60%) are orange voters while twenty (40%) are purple voters.

From that starting point, the state could draw “fair” maps which distributed the people in such a manner to generate three orange and two purple representatives, proportionate to the statewide electorate. But the state could also gerrymander, producing an outcome, using the example on the right above, of five orange and no purple representatives, or two orange and three purple representatives.

The term “gerrymander” was coined as a portmanteau of the name Elbridge Gerry and the word “salamander.” Gerry, who was the governor of Massachusetts, signed a redistricting law that redrew district lines in a way that favored his party. Critics said the new map created a weirdly shaped district which resembled a salamander. A satirical cartoon published in the Boston Gazette on March 26, 1812, popularized the word. The cartoon depicting the irregular shape helped turn a local political attack into a lasting political term.

The Donnie-Mander

The political parties have a long history of manipulating their maps to various degrees every ten years when the new census requires a reallocation of seats. But two things make this year’s manipulations unusual. First, this is a mid-census reapportionment. The last census was in 2020 with new maps taking effect in 2022 in most states. Second, this mid-census revision to the 2022 map came at the direct demand of Donald Trump. Texas’s Republican Governor Greg Abbott heeded Trump’s call and generated a new map that may add as many as five Republicans to the House in 2026. That is the map the Supreme Court now says can be put into place. With the Republican control in the House hanging on a tiny seven vote majority, Trump is clearly afraid the Democrats could gain control in the next election.

This Trump inspired Donnie-Mander, now sanctified by the Supreme Court, has set off an unprecedented arms race of mid-decade redistricting across the country. Missouri and North Carolina have passed their own Republican leaning maps. California voters approved a map designed to cancel out the Texas gains. Virginia and Maryland are working on new maps favoring Democrats. Illinois is considering one. Florida and Indiana are working on revisions on the Republican side.

National Public Radio has been keeping score on its web site. As of this writing they show a slight gain for Republicans on the basis of district voting patterns in next year’s election. Considering his atrocious polling numbers, Trump is going to need all the help he can get. The Center for Politics at the University of Virginia, one of my favorite pollsters, sees 2026 shaping up to be much too close to call.

Congress has over the years tried to set standards and take control of the redistricting process. It has never been able to pass a law to bring order out of the chaos.

The majority on the Supreme Court, by allowing these partisan mid-decade redistrictings, has created a free-for-all which is a lose-lose for the American people. But 2026 does promise to be a good show.

######