Off the Kuff Rotating Header Image

October 4th, 2017:

SCOTUS takes up partisan gerrymandering

So much coverage on this potentially ground-breaking and earth-shaking case. Here’s the Washington Post:

Opponents of political gerrymandering had reason for optimism at the Supreme Court on Tuesday, with Justice Anthony M. Kennedy, the likely swing vote, appearing more in sync with liberal colleagues who seemed convinced that a legislative map can be so infected with political bias that it violates the Constitution.

But it’s what Kennedy didn’t say that could determine whether the court, for the first time, strikes down a legislative map because of extreme partisan gerrymandering. While he has previously expressed concerns about the political mapmaking practice, he has yet to endorse a way of determining when gerrymandering is excessive, and Kennedy give no sign at oral arguments Tuesday that he had found one.

In a case from Wisconsin that could reshape the way American elections are conducted, the Supreme Court heard from challengers that it was the “only institution in the United States” that could prevent a coming wave of extreme partisan gerrymandering that would distort the basic structure of democracy.

“Politicians are never going to fix gerrymandering,” said Paul M. Smith, representing Democratic voters who challenged a 2011 redistricting plan drawn by Wisconsin’s ruling Republicans. “They like gerrymandering.”

Even conservative justices skeptical of Smith’s argument seemed to agree that it was unsavory for members of the party in power to draw legislative districts to protect themselves and their own, and make it hard for opponents to ever gain power.

“Gerrymandering is distasteful,” said Justice Samuel A. Alito Jr. “But if we are going to impose a standard on the courts, it has to be something that’s manageable.”

Finding a test that courts could use to determine when political favoritism had become too great — the “Rosetta Stone,” Alito called it — has always been the hurdle. Kennedy said as much the last time the court examined the issue, in 2004.

If anything, Kennedy seemed more convinced this time around that the courts have a role in finding that partisan gerrymandering can be so extreme as to be unconstitutional.

He pressed lawyers for the state and its legislative leaders about whether it would be unconstitutional for a state to undertake the redistricting process by forthrightly saying it intended to favor one party over another.

Erin Murphy, representing the legislative leaders, hesitated and said that was not the case in Wisconsin.

Kennedy was undeterred. “I’d like the answer to the question,” he said.

Murphy and the state’s lawyer, Solicitor General Misha Tseytlin, agreed that would be unconstitutional.

See here, here, and here for some background. Basically all the coverage was focused on Justice Kennedy, who is not only our supreme overlord the main swing vote in the chamber but also who had suggested that a partisan gerrymander could be illegal if there were a good, objective standard to determine it. That’s what this case is about, and it seems likely that if this isn’t where he draws a line, there isn’t a line he’ll be willing to draw. This case is about Wisconsin, but if SCOTUS sides with the plaintiffs it would surely have a broad impact, as many other purple or even blue states – Florida, Pennsylvania, Michigan, Ohio, Virginia, North Carolina – have similarly extreme gerrymanders in them. We’ll know by the spring. SCOTUSBlog, the NYT, Rick Hasen, Ari Berman, Kevin Drum, Mark Joseph Stern, Dahlia Lithwick, and ThinkProgress have more.

Fifth Circuit hears bail lawsuit arguments

Big day in court.

Amid a stream of pointed questions from the bench, lawyers for Harris County Tuesday asked panel of the 5th U.S. Circuit Court of Appeals to toss a lower court ruling that the county’s criminal justice system violated the constitution by holding poor defendants on low level offenses simply because they could not afford bail.

The arguments challenge an April ruling by Chief U.S. District Judge Lee H. Rosenthal in Houston that the county’s bail system violated due process and equal protection by discriminating against poor misdemeanor defendants, when people with the money to could await trial at home.

A trio of appellate judges heard 30 minutes of oral arguments from the county, which has spent $4.2 million combating the lawsuit, and another 30 minutes from lawyers for a group of indigent defendants who languished in jail for days because they couldn’t afford to post bail.

[…]

[Judge Catharina] Haynes commanded the questioning throughout the morning, including when Chuck Cooper, a seasoned appellate lawyer who heads the Washington, D.C. law firm Cooper & Kirk, argued for the county that the bail hearings were not perfunctory.

Haynes interrupted Cooper mid-sentence, with a rhetorical question, “Now they know they’re under scrutiny so they add an extra sentence to their rubber stamp?”

To Alec Karakatsanis, director of the Civil Rights Corps in D.C, who represents the indigent defendants who sued the county, Haynes repeatedly asked about why the defendants needed to be released from jail by the 24-hour mark.

“I’m asking a very specific question you’re not answering,” she said. “Where in the U.S. Constitution does it say you’re required to release… within 24 hours.”

“It doesn’t,” Karakatsanis said.

Haynes also asked what’s the value of the affidavit inmates sign to swear they can’t afford bail.

“What if they’re lying on this affidavit–I don’t know, if they’re a millionaire or something?” she queried.

Karakatsanis said they could face further prosecution for contempt if they misrepresented their means.

See here and here for some background, and here for a Chron preview; I’ve been following this for awhile so if you’re a regular reader this should mostly be familiar. The Trib adds some details.

The judges repeatedly peppered Cooper with questions about the county’s probable cause hearings, in which judicial officials called hearing officers hear the charges against a defendant, evaluate reports from pretrial interviews and occasionally alter bail. The plaintiffs have argued that defendants are not allowed to speak at these hearings, which Haynes and Prado jumped on.

“They’re called hearing officers. Is there a hearing or do they just look at the form and make a decision?” [Judge Edward] Prado asked.

When Cooper contended that they did, Haynes cut him off: “But they can’t speak. What is a hearing if you’re not going to listen?”

[…]

In his argument, Cooper cited multiple county reform efforts that have taken place since the court order took effect in June. In July, the county began using a new risk assessment tool to better recommend to judicial officers setting bail when low-risk offenders should be released on personal bonds. He said, though no data has been recorded in the court, that release on personal bonds has increased.

Haynes questioned whether it was worth sending the case back to the lower court to find new facts since the reforms have taken place. Karakatsanis argued the new facts are unknown, and that there is nothing in the court record to corroborate Cooper’s statements.

County Judge Darrell Jordan, the only Harris County judge who rejected money bail for indigent defendants before the ruling, was at the arguments and said afterward that he wished there was an opportunity to talk about the system under the changes. Overall, he said, the process hasn’t changed.

“If it is sent back to the lower court, then the numbers will show what is going on,” he said. “People are still being placed in jail, and they can’t afford to get out.”

It is unknown when the judges will make a decision whether to uphold Rosenthal’s ruling, overturn it or send it back to the lower court. But after the ruling, Karakatsanis said he was optimistic the court will stand by Rosenthal’s injunction.

“The order that they’re appealing from is based on very solid evidence, and they’re asking for it to be overturned,” he said. “You can’t just come in front of higher courts and say, ‘Well, facts are totally different from what happened…’ without any citation.”

All three judges were Bush appointees, by the way, one by 41 (as was trial judge Rosenthal) and two by 43. My layman’s reading of this is that the judges were far more skeptical of the county than of the plaintiffs, but they clearly found the 24-hour requirement to have a hearing or release a defendant questionable. If they want to modify that it’s probably not a big deal, but beyond that I hope they uphold the ruling. They’ll issue their opinion when they’re damn good and ready.

HFD and disaster preparedness

There’s a lot here to think about, and to do something about.

The Houston Fire Department’s limitations quickly became clear as Harvey’s floodwaters rose.

Just one high-water rescue vehicle. Decades-old evacuation boats. Sparse training for swift-water rescues. And limited staffing after an 11th-hour decision not to call in major reinforcements to face the catastrophic storm.

The department had been warned. Lethal flooding two years ago exposed shortcomings and prompted sweeping recommendations to improve future responses.

And yet, when firefighters rushed fearlessly into Harvey’s currents in late August, they were again hobbled by a lack of resources, old equipment and a shortage of manpower ready to go when the storm hit, according to a Chronicle review of internal reports and emails, and dozens of interviews with firefighters and other officials.

The review found a department – and a city – that failed to follow the hard-earned lessons of previous storms, even as one of the worst in U.S. history descended on the region.

“Civilians had to step up – which was a great thing – but that’s not their job,” one high-ranking fire official said. “It’s our job to protect and serve the public. We couldn’t do that because we didn’t have what we needed.”

Fire Chief Samuel Peña, who stepped in to lead the department in December, defended the response and commended his firefighters, who performed 7,000 rescues and answered more than 15,000 calls for help during the first five days of the storm.

But he acknowledged that Harvey exposed shortcomings in the department’s fleet and training.

“Harvey punched us in the mouth,” Peña said. “No municipality is ever going to have the number of resources to be able to respond to a catastrophic incident the size of Harvey. But we know the anticipated risk in this community. We know that the 500-year flood is going to come again next year … We don’t have the adequate resources to address even the expected risk in this community.”

Critics, however, say the department’s response suffered from more than neglect.

“Anyone with common sense could see with relative certainty there was going to be an enormous rescue effort that was going to be required following the impact of Hurricane Harvey,” said Jim Brinkley, director of occupational health and safety for the International Association of Fire Fighters. “It’s expected a department would allocate enough resources – in terms of staffing alone – to make sure they’re capable of responding.”

There are a lot of reasons why HFD’s ability to deal with mass flooding events isn’t any more advanced now than it was a few years ago, before such things had become annual occurrences. You can come to your own conclusions about who shoulders how much of the responsibility for that. I would just point out that any effective solution to this is going to cost money. Equipment costs money. Training costs money. Firefighters who have better training can earn more money, if not here then elsewhere. We can and should review how HFD uses the resources it has now – as we know, most of the demands on the department are for emergency medical services and not for fire, and HFD has a track record of being profligate with overtime – but there’s only so far you can squeeze before you start displacing things you’d rather keep. If we want HFD to be better at responding to these events, we’re going to have to make an investment in them, and not just a one-time investment. That means we the voters are going to have to come to grips with the need to spend more money, or with the reality that we’re going to keep getting what we’re already paying for. If there are hard choices to be made by our leaders, we have to be prepared for what that means to us.