Gerrymandering Virginia from Red to Blue

by Hans Bader

On Tuesday, a three-judge panel redistricted Virginia’s House of Delegates, adopting a highly favorable map for Democrats. It is effectively a political gerrymander in their favor. The result will be to lock in Democratic dominance in the state for years to come, giving them control of future redistricting.

Tuesday’s redistricting will shift control of the House of Delegates, which currently is controlled by Republicans by a narrow 51-to-49 margin, to the Democrats. Democrats already control the governor’s mansion, and were virtually certain to pick up control of the State Senate next year, which is currently split 21-to-19 in favor of the GOP. That’s because four Senate districts currently represented by Republicans have become Democratic-leaning, and Democrats are almost certain to pick up one of those seats, because the incumbent, Dick Black (R), is retiring in a district that Hillary Clinton carried by 6%.

The court’s ruling is a political gerrymander that purports to fix a racial gerrymander. In a 2-to-1 ruling, with Democratic-appointed judges in the majority, a three-judge panel found that Virginia’s 2011 redistricting had been a racial gerrymander — even though that redistricting had passed with substantial bipartisan and biracial support.

But to fix that alleged gerrymander, the court imposes a political gerrymander of its own, as I discuss further below. It locks in Democratic dominance by essentially guaranteeing the Democrats complete control of Virginia’s government in the next legislative session, including the redistricting process after the 2020 census. While legislatures, as political bodies, may be allowed to engage in such political gerrymanders, I don’t see why a court, which is supposed to be non-political, should be allowed to get away with it.

The ruling in Bethune-Hill v. Virginia Board of Elections will result in the Democrats having complete control of Virginia, and being able to pass liberal legislation that moderates and conservatives oppose. It will reduce my ability to petition government officials to address my grievances. It doesn’t affect the boundaries of my House of Delegates district, but it does get rid of delegates who would potentially respond to my emails about pending legislation. I live in a district represented by a liberal Democrat who has never responded to any of my emails. The people who do respond to my emails about pending legislation are, ironically, legislators outside my district, mostly Republicans (like the moderate Republican House Committee Chair who revised one bill to include the specific amendment I suggested). This ruling guarantees there will be no such GOP chairmen in 2020, and virtually wipes out moderate Republicans.

The court’s political gerrymander is evident based on application of the Supreme Court’s Arlington Heights factors for smoking out discrimination. (See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-67 (1977.) Discriminatory intent may be as evidenced by such factors as “disproportionate impact” and “departures” from “factors” previously deemed “important by the decisionmaker” or when those factors “favor a decision contrary to the one reached.”

Just as North Carolina legislative redistricting was deemed discriminatory because it supposedly targeted black voters with almost “surgical precision,” this judicial redistricting targets GOP lawmakers for defeat with almost surgical precision. It effectively eliminates the two most powerful Republicans, the Speaker and Appropriations Chair, as well as delegates Yancey and Helsel, while shoring up vulnerable junior Democrats in close districts, like Cheryl Turpin (who is now clearly favored to win, due her incumbency, and the fact that her district no longer is slightly pro-Trump, but rather, slightly pro-Clinton), and Schuyler Van Valkenburg, who will now win even more easily. See Grant Moomaw, Federal court picks redrawn Va. House map that boosts Democrats’ chances of Taking Control, Richmond Times-Dispatch, Jan. 23, 2019, showing shifts of 32%, 27.4%, 19.8%, and 13.6% respectively in the districts of Cox, Jones, Helsel, and Yancey); Blue Virginia, “Latest Virginia 2019 Forecast: Republican House and Senate Majorities Looking REALLY Shaky,” Jan 24, 2019 (linking to district ratings of State Legislature Pundit Chaz Nuttycombe showing the Jones and Yancey districts as “strong D” districts, the Helsell district as a “likely D” district and the Cox district as “lean D”).

In short, it is a political gerrymander. The court engaged in political discrimination. It is not just the obvious “disproportionate impact” of its ruling against the GOP, which will probably lock in Democratic control of the legislature for years. The court also repeatedly and consistently acted to favor Democrats since it was assigned to the current three-judge panel. Originally, the court panel had included a Clinton appointee, Gerald Bruce Lee, and a Bush appointee, Robert Payne, who ruled in favor of the state legislature, over a dissent by Obama appointee Barbara Milano Keenan. But on remand from the Supreme Court, Lee was replaced on the panel by the more ideological Arenda Wright Allen, an Obama appointee who once issued a ruling that mistakenly attributed to the U.S. Constitution language that was not in it, in a ruling striking down a provision of the Virginia Constitution loathed by progressives. The new, more left-wing panel found the state guilty of racial gerrymandering based on reasoning and credibility determinations at odds with its earlier ruling in favor of the state.

For example, the court panel hired Bernard Grofman, the Democrats’ dream consultant, as the Special Master assigned to do the redistricting. Grofman is a liberal academic whose methodology favors the Democrats generally even as it authorizes the unconstitutional anti-GOP Maryland gerrymander struck down last year in Benisek v. Lamone. The court then exacerbated matters by picking the most pro-Democrat of Grofman’s proposed alternative maps, even though the rationale given for them by the Special Master conflicts with the court’s earlier ruling. That inconsistency, and the political slant of the court’s actions, warrant suspicion under the Supreme Court’s Arlington Heights factors for smoking out veiled discrimination.

As the Daily Progress noted last year, the picking of Grofman was a godsend for Democrats.

[The]“appointment of University of California-Irvine political science professor Bernard Grofman was a victory for the Democratic plaintiffs who successfully challenged the constitutionality of 11 House districts in a long-running lawsuit. It was a likely setback for Republicans trying to preserve the House’s current partisan makeup. A federal court has appointed the same expert who redrew Virginia’s congressional map in 2015 to draw new House of Delegates lines to address racial gerrymandering. Attorney General Mark Herring, a Democrat, suggested Grofman as the outside redistricting expert, known as a ‘special master’ in court parlance. Marc Elias, the Democratic lawyer who led the challenge against the House map, called Grofman ‘a great choice’ and ‘one we endorsed.’ House Republicans had urged the court not to choose Grofman and criticized the way Grofman handled the 2015 process.

(See Grant Moomaw, “Familiar expert named to redraw House districts,” Daily Progress, Oct. 18, 2018).

The disproportionate impact of the court’s decision is quite clear. “It would nearly guarantee a Democratic takeover of the House of Delegates,’ said Larry Sabato, head of the Center for Politics at the University of Virginia.” (See Grant Moomaw, “Federal court picks redrawn Va. House map that boosts Democrats’ chances of Taking Control,” Richmond Times-Dispatch, Jan. 23, 2019).

The Court itself deliberately chose the most pro-Democratic alternative map. As the Richmond Times-Dispatch noted on January 23, “Grofman gave the court several map options for each region. In Tuesday’s order, the court picked the map it prefers in the four regions. In a filing last week, Republicans told the court which map option they preferred in the four regions. In all regions, the court chose a different option.” (See id.).

As the House Speaker has aptly noted, “The modules selected by the Court target senior Republicans, myself included, without a substantive basis in the law. In fact, in many cases the rationale given by the special master for the modules selected by the Court contradict the Court’s own opinion,” which is a suspicious “departure” under the Arlington Heights factors. (See Tyler Arnold, “GOP House Speaker, Drawn Into a Democrat-Leaning District, Criticizes New Maps,” Virginia Watchdog, Jan. 23, 2019).

Even if the court had not cherry-picked Grofman’s districts to get the ones most favorable for Democrats, Grofman himself favors the Democrats to begin with. Grofman advocates what is essentially affirmative action for Democrats in the redistricting process, to compensate them for the natural effects of political geography. Republicans have a natural “geographical advantage because their voters” are “spread more widely across suburban and rural America instead of being highly concentrated, as Democrats generally are, in big cities.” (See AP analysis shows how gerrymandering benefited GOP in 2016, Associated Press, June 27, 2017).

For example, there were 59 voting divisions in Philadelphia where Republican presidential candidate Mitt Romney got zero votes; no rural area in Pennsylvania was as uniformly hostile to President Obama as these urban areas were to Romney. It is this geographic concentration of Democrats in cities that makes it hard for them to take control of most state legislatures, unless there is a political gerrymander in their favor.

So totally random redistricting will tend to give an edge to Republicans. Grofman seeks to eliminate this natural geographic edge for Republicans through the so-called “symmetry” or “efficiency gap” standard. (See, e.g., Brief of Amici Curiae Professors Gary King, Bernard Grofman, Andrew Gelman, and Jonathan N. Katz in support of neither party, in Jackson v. Perry, Supreme Court docket no. 05-204).

His approach would render unconstitutional many redistricting plans that ignore political voting patterns and other political considerations, and instead follow traditional, non-partisan districting principles, such as keeping districts as compact as possible. For example, even Iowa, which takes an unusually non-partisan approach to redistricting, usually has a substantial “efficiency gap,” and could run afoul of Grofman’s standard.

Grofman’s “symmetry” standard is defective even in what it purports to measure (voter support for the respective parties on a statewide basis), in a way skewed in favor of Democrats. It compares statewide vote totals of all Democratic legislative candidates and all Republican legislative candidates. In a district with an uncontested race (a common phenomenon in Democratic districts in the 2017 election), voters are all deemed to support the incumbent, even if many would have voted against the incumbent had an opposing candidate run. The “symmetry” standard ignores such latent support for the opposing party.

In Arlington, where I live, a substantial minority of the voters will vote for a Republican if one runs, but there is little point in one running, since the Democrats are virtually guaranteed to win. My delegate, Patrick Hope, has never responded to any of my constituent emails or calls about anything, and obviously, I do not support him. I would vote against him if any GOP candidate ran against him, even though I do not always vote for Republicans in statewide races (who tend to be less moderate than the Republicans in my backyard). But Grofman’s methodology treats voter support for Hope as 100% in my district because he runs unopposed, even though, in reality, there is opposition to him. In the past, when challengers ran against him, they received thousands of votes. A Republican who ran against him in 2009 got nearly a third of the vote. A Libertarian who ran against him in 2013 received 23% of the vote. Now, the GOP has stopped running futile challenges to Hope. But this does not mean Arlington residents have all become liberal Democrats: Even in 2017, in the neighboring district of Democrat Alfonso Lopez, perhaps the most liberal district in the State, a GOP candidate received 19% of the vote. Yet Grofman’s methodology would treat Arlington voters as if they were 100% Democrats, in legislative races in the 2017 election cycle.

Ironically, although Grofman seeks to compensate the Democrats for the Republican’s natural geographic edge, he recognizes a “bonus” exception to his “symmetry” standard that seems tailor-made to uphold the political gerrymander struck down by a three-judge court in Maryland last year. Maryland’s dominant Democratic Party gave itself seven out of eight Congressional seats, by gerrymandering away the seat held by Congressman Roscoe Bartlett (R), and thus giving itself a far higher percentage of seats than its proportionate share of the popular vote in Maryland Congressional elections. This “bonus” is expressly permissible under Grofman’s “symmetry” or “efficiency gap” standard. (See Brief of Amici Curiae Professors Gary King, Bernard Grofman, Andrew Gelman, and Jonathan N. Katz in support of neither party, in Jackson v. Perry, Supreme Court docket no. 05-204, at pg. 8). But that Maryland redistricting was such an extreme gerrymander that it was found unconstitutional by a three-judge court. (See Benisek v. Lamone, No. 13-cv-3233 (D. Md. Nov. 7, 2018) enjoining the gerrymander).

Legislatures are political bodies, and you can’t take the politics out of politics. So challenges to legislative political gerrymanders may not be justiciable, in most cases.

But gerrymanders by courts themselves are quite another matter. Judges must abide by “strict neutrality,” unlike politicians. (See Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1666 (2014)).

Political discrimination or favoritism by a court is intolerable, and at odds with the First Amendment and the equal-protection component of the Fifth Amendment. (See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628 (1991): “The injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself.”).

Political discrimination and gerrymanders by courts are forbidden, even if not those by state legislatures. State governments get more leeway than courts do to behave in a political manner, even when it affects the political process, or would otherwise raise First Amendment concerns. (See, e.g., U.S. Const., art. II, §1 (legislatures can pick presidential electors or dictate how they are picked); art. I, §4 (legislatures vested with Congressional redistricting); Connick v. Myers, 461 U.S. 138, 147 (1983) (state employer can restrict its employees’ speech on matters of private concern, in order to function and avoid turning every workplace utterance into a potential First Amendment lawsuit, even though that same speech would be protected against damages imposed by a judge in a “libel action”); Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1666 (2014) (judge’s own ability to engage in the political process is limited by the need for “strict neutrality” on the bench, making restrictions on judges’ behavior permissible even when they would violate the First Amendment as to other officials, who are allowed to behave in a political way); Easley v. Cromartie, 532 U.S. 234, 237 (2001) (race permitted as non-predominant factor in legislative redistricting, despite general constitutional ban on using race)).

Courts, by contrast, are fully subject to the First Amendment and the equal-protection component of the Fifth Amendment. (See Near v. Minnesota, 283 U.S. 697 (1931) (state court injunction against libel violated First Amendment); Snyder v. Phelps, 562 U.S. 443 (2011) (damage awards imposed by courts are subject to First Amendment limits); Rose v. Mitchell, 443 U.S. 545, 556 (1979) (forbidding racially conscious judicial proceedings)).

So the court should not have done this, even if a state legislature would be allowed to do such a political gerrymander.

The new map will lock in Democratic control of the House of Delegates in the future. “It would nearly guarantee a Democratic takeover of the House of Delegates,’ said Larry Sabato, head of the Center for Politics at the University of Virginia.” (See Grant Moomaw, “Federal court picks redrawn Va. House map that boosts Democrats’ chances of taking control,” Richmond Times-Dispatch, Jan. 23, 2019)).

Indeed, a political analyst notes that with this new legislative “‘map it’s not a matter of whether the Democrats are flipping the chamber (they will), it’s whether Democrats will get to 60 seats.’” See Blue Virginia, “Latest Virginia 2019 Forecast: Republican House and Senate Majorities Looking REALLY Shaky,” quoting State Legislature Pundit Chaz Nuttycombe.

The map is a Democratic-Party wish list: As that self-described “center-left” analyst notes, “the Democrats got the best possible map for the House of Delegates, the one I made a while back.”

This will give Democrats a political monopoly in Virginia’s legislature, since they were already virtually certain to take control of the State Senate in the 2019 elections, under a map that was drawn back when the Democrats controlled the Senate. A political analyst says the Democrats will keep all of their current 19 seats, and are virtually certain to pick up two additional seats: the 13th district currently held by retiring Senator Dick Black — rated as a “strong D” district — and the 10th district currently held by Glenn Sturdevant — rated as a “likely D” district, Yet another district currently held by the GOP is classified as a “lean D” district. (See Current Virginia House of Delegates & State Senate ratings with maps and table format, tweeted by Chaz Nuttycombe, Jan. 26, 2019.)

If standing were as broad in voting-rights cases as in, say, environmental cases, voters like me would have standing to challenge this gerrymander, because the Democratic takeover of the legislature will lead to new laws that increase consumer prices and reduce employment, laws that would not be enacted if the GOP controlled one of the legislature’s two chambers. For example, the Democratic takeover is virtually guaranteed to lead to a doubling of the minimum wage. Every single Democrat in the state Senate recently voted to double it to $15, even though economists estimate that similar legislation in California will wipe out hundreds of thousands of jobs, and increase prices, as even supporters of such legislation have recognized. (See CEI v. NHTSA, 901 F.2d 107, 111-13 (D.C Cir. 1990) (consumer price increase is basis for standing)).

Even if they recognize the negative consequences of such policies, senior Democratic legislators won’t stop supporting them, because doing so would make them more vulnerable to primary challenges from left-wing challengers, like the challenge currently being mounted against the Democratic leader in the State Senate, Dick Saslaw, whose challenger is more anti-business and left-wing than he is. The specter of such primary challenges makes Democratic leaders take left-wing positions supported by the ideological base of the Democratic Party, even if they are not favored by most voters.

As a result, the court’s political gerrymander will result in Virginia’s new legislature pursuing left-wing policies more typical of California than of Virginia, which may include the abolition of Virginia’s Right-to-Work law, and the abolition of the death penalty (which remains favored by Virginia voters, but is opposed by the state’s governor and most Democrats).

Hans Bader, a senior attorney at the Competitive Enterprise Institute until 2017, lives in Arlington. This essay was published first in the Liberty Unyielding website.

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11 responses to “Gerrymandering Virginia from Red to Blue

  1. Only Republicans gerrymander. When Democrats draw lines for political advantage their motives are much more pure.

    Thanks for this.

  2. Leftwich, Spruill, Bobby Scott, Warner, Kaine, all of them are useless. Combo of Republican and Dem. All in office too long. The ones I admire are Roem, Hurst, Hayes (for a few things), Cole. They at least respond on a consistent basis.

    Term Limits.

  3. I always remember former Rep. Tom Davis quote from a while back that Va. may bypass the New Jersey style of blue and head straight to the Calfornia shade of dark blue.

  4. Pretty sure if you have a computer program and the only data you feed it is population and geography and tell it to create compact districts, it will – no matter who writes the program. Do that, let everyone look at the maps. Let the political folks make a case for bias if they can then create districts where the elected are going to pay more attention to their constituents than their political party.

    We need to get this process away from BOTH of the political parties.

  5. Interesting if lengthy; but, bottom line, I disagree with the premise that the practical result of the “political gerrymander” here “locks in Democratic dominance by essentially guaranteeing the Democrats complete control of Virginia’s government in the next legislative session.” That assumes they wouldn’t win such control anyway in the coming election thanks to the RPV’s bumbling ways and the course of current events. No, I think the Blue Wave Cometh this November and not even the existing, partisan-Republican gerrymandered districts could have stopped it.

    There is nothing more partisan than the redrawing every 10 years of our election districts. The current proposal for a Constitutional amendment to establish a 12 member panel to propose a set of districts for an up or down vote seems as fair as any I’ve seen and a hell of a lot better than the current system, and Republicans are wise to support it. An incidental benefit: this would obviate all that convoluted existing case law on the subject!

    • Your point is well taken but only to a point. Because federal law requires racial gerrymandering for black and sometimes Hispanic districts, any redistricting plan, without more, is by definition designed to favor the Democratic Party. Thus, a non-partisan redistricting plan that also creates majority black and/or majority Hispanic districts is automatically unbalanced in favor of the Democratic Party.

      It would be ironic to see a redistricting case, perhaps, this one go to SCOTUS and see Justice Thomas cast the deciding vote that declares this part of the Voting Rights Act unconstitutional.

      Once anyone puts his/her thumb on the redistricting scale, everyone should be permitted to do so.

      • re: ” Because federal law requires racial gerrymandering for black and sometimes Hispanic districts, any redistricting plan, without more, is by definition designed to favor the Democratic Party”

        Well I’d ask THIS: WHY can’t the GOP appeal to and represent blacks on their own merits instead of whining about them being “predisposed” towards Dems?

        Isn’t that a little like saying that people who want health care are predisposed towards Dems – and the real problem is that people are actually gravitating towards candidates that respond to their concerns?

        The GOP has rejected health care for people – for decades and the chickens are now coming home to roost. The same thing is going on with black voters and despite the fact the GOP claims it’s the Dems who discriminated against blacks, Jim Crow, et al… right?

        So if all of that is true , WHY do blacks STILL favor Dems AND the GOP doesn’t seem to want to represent them with anything more than lip service?

        That’s not a gerrymander problem. That’s how the GOP has, for years, avoided and evaded actually WANTING and actually representing black folks.

        So the complaint here is that the GOP designed a map where they did not have to legitimately represent blacks and now that it’s changing …it FAVORs the Dems… ipso facto….

        To which, any reasonable person would say to the GOP – “Why don’t you represent black folks instead of having to resort to gerrymander to avoid representing them”.

  6. What a political screed that is full of partisan blather and short of facts!

    There is too much there to respond to, but I will point out the most blatant problems.

    First of all, just because the new map favors Democrats does not, per se, make it a “judicial gerrymander”. If the districts were originally drawn to favor Republicans (a gerrymander), then correcting them to better represent current populations, would inevitably give Democrats better chances.

    The author complains that the redistricting “targets GOP lawmakers”. Of course it does, Republican districts were the ones that had been challenged and found to be unconstitutional.

    The author is very upset about the decision by a court on which one judge appointed by a Democratic President was replaced by another judge, “more ideological”, appointed by a Democratic President. The implication is that the court was thereby stacked against Republicans. However, this is not necessarily the case. I am not sure how this Circuit assigns judges, but it is my impression that appointments to three-judge courts are based on a rotation. Perhaps Judge Lee was not available due to other assignments and Judge Allen was next on the list.

    He also complains that the court’s ruling was “at odds with its earlier ruling in favor of the state.” That is not surprising. The earlier ruling in favor of the state had been sent back by the U.S. Supreme Court (dominated by Republican-appointed judges) with instructions to use different criteria in assessing the district lines.

    The author devotes a large dose of his enmity toward the special master. In particular, he focuses on the “symmetry” model and its deficiencies. First of all, did the special master use that method in devising the maps recommended to the court? The author implies that he did, but there is no proof offered that was the case. Second, he complains that the symmetry model is deficient because, in a district with an uncontested race, it deems all voters to support the incumbent and that, somehow, favors Democrats. Incidentally, in the 2018 House of Delegates elections, there were 9 districts in which Republican incumbents ran unopposed, including that of Chris Jones, one of the districts being challenged.

    Rather than quotes from Kirk Cox that the court’s maps are unfair, the author should have provided some specific examples of how some, or any, districts could have been drawn differently, without favoring either party, while still meeting the criteria sent down by the Supreme Court, or even some examples of where “the rationale given by the special master for the modules selected by the Court contradict the Court’s own opinion”. But, we are given no evidence, only assertions.

    Finally, the author laments that the new map “effectively eliminates the two most powerful Republicans, the Speaker and the Appropriations Chair.” That assertion shortchanges both legislators by assuming that they cannot get enough Democrats to vote for them. I have a feeling that both men have such widespread support, that even in those new districts, they could win re-election.

    In conclusion, it is obvious that the main point of this jeremiad is the author is distressed that this redistricting will give Democrats total control of state government and he does not like policies favored by Democrats. He has already conceded the Senate in the next election. Why does he not think the Democrats could win a majority in the next election without the new map? After all, in the last election, Yancey won by virtue of a coin toss and Hugo by only 110 votes. And, last, but not least, his delegate won’t respond to his e-mails.

  7. re: ” Rather than quotes from Kirk Cox that the court’s maps are unfair, the author should have provided some specific examples of how some, or any, districts could have been drawn differently, without favoring either party, while still meeting the criteria sent down by the Supreme Court, or even some examples of where “the rationale given by the special master for the modules selected by the Court contradict the Court’s own opinion”.”

    CORRECT with a CAPITAL C!!!!

    These guys are NOT interested in drawing a fair map to start with.

    Mr. Bader is deep into the partisan divide and full of his sides kool-aid!

    This is exactly why we do not want him and his allies anywhere near a redistricting process!

    His main goal is to do whatever it takes to get a map that favors the GOP; not one that is going to be fair and objective. He makes no bones about it.

  8. Yet another reason to disrespect judges. Judges need to tread very carefully on political matters. They aren’t elected and citizens cannot easily get rid of them. We can hold our elected officials responsible for their actions. We can lobby them, protest them and vote against them. We cannot vote judges out of office.

    Three judges appointed by Democratic presidents, who select a consultant with ties to Democrats, resulting in a plan that changes the political composition of only Republican delegates. Moreover, the House redistricting, which included political gerrymandering as did the 2011 redistricting of the Senate by the then-controlling Democrats, was reviewed and approved by Obama’s Justice Department, which was as partisan as any DOJ I’ve seen since I been practicing law. And the judges override it.

    The Code of Conduct for United States Judges.

    Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities.

    (A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

    (B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. …

    The actions of the judges do not promote public confidence in the integrity and impartiality of the judiciary. Quick test: How many vitriolic editorials would be written by the WaPo if the decisionmakers were Republicans and the delegates were Democrats? Remember the Post went crazy when the VA Senate did a mid-decade reapportionment that nailed Democratic senators. The GOP House Speaker held the bill. I cannot say that there is impropriety but there certainly is the appearance thereof. I don’t think the judges’ conduct comports with Canon 2.

    One or more of the judges should have engaged in self-recusal so that the panel had no more than two judges appointed by presidents of the same party. The panel should not have selected any consultant who had any ties to the “majority party” on the panel.

    • I worry a lot about the current tendency to identify federal judges by way of the party of the appointing President. By doing so, we are running the risk of undermining the legitimacy of the courts.

      With that in mind, however, I want to set the record straight recording the basis of some of the statements in this post. The original case, decided in favor of the state, was remanded by a vote of 7-1 by the U.S. Supreme Court. One member of both three-judge panels for the case, Judge Payne, was appointed by a Republican President (George H.W. Bush). Judge Payne signed the order appointing Prof. Gorfman as special master. As for the final map, a final order of the court has not been entered, as the parties have until February 1 to file any objections.

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