Ohio, Michigan legislators seek partisan-gerrymandering stays (Updated)

UPDATE: On Monday, May 13, Justice Sonia Sotomayor called for responses in these applications, due Monday, May 20, at 3:00 p.m.

At the end of March, the Supreme Court heard oral argument in two cases challenging federal congressional districts in North Carolina and Maryland as the product of unconstitutional partisan gerrymandering. A key question in both cases was whether courts should review partisan-gerrymandering claims at all, or instead leave the issue to politicians and the political process. Citing the uncertainty surrounding that issue, Republican legislators from Ohio and Michigan today asked the Supreme Court to put lower-court rulings that found partisan gerrymandering in those states on hold while they appeal.

The first two requests came from Republican legislators in Ohio, which enacted a new federal congressional map in 2011 after the state lost two seats in Congress. On May 3, a three-judge federal court struck down the plan, holding that it was the product of unconstitutional partisan gerrymandering by the states Republicans, and ordered the states general assembly to come up with a new plan by June 14.

In emergency applications filed today, the legislators asked the justices to block the lower courts ruling while they appeal to the Supreme Court. (Cases involving redistricting are among the narrow set of federal cases with an automatic right of appeal from the three-judge district court to the Supreme Court.)

Emphasizing that the map was approved by bipartisan supermajorities, the legislators complained that the states general assembly was being coerced into repealing and replacing a duly enacted law on a needlessly rushed basis, all to follow an alleged constitutional imperative that the Supreme Court may determine does not exist when it issues its decisions in the North Carolina and Maryland cases, which are expected by the end of June. The Supreme Court may decide that partisan gerrymandering claims do not belong in court at all, the legislators suggest; even if it ultimately concludes that courts can review such claims, the legislators add, the justices are likely to send the Ohio case back for the lower court to reconsider it in light of whatever standard the Supreme Court eventually establishes.

The second set of requests came from lawmakers in Michigan. On April 25, a federal court barred that state from using portions of its legislative and congressional maps, concluding that they too were the product of unconstitutional partisan gerrymandering by Republicans. The court ordered Michigan legislators to draw new maps by August 1. The lawmakers urged the justices to put that order on hold, telling them that the lower-courts order is on the brink of throwing Michigans political system into unnecessary chaos.

All four requests will go initially to Justice Sonia Sotomayor, who handles emergency appeals from the geographic region that includes Ohio and Michigan. Sotomayor can act on the requests herself or refer them to the full court; she can also order the other side to respond before either she or the court takes any action.

This post was originally published at Howe on the Court.