Adam Liptak

Last year’s cases, from Wisconsin and Maryland, raised the possibility that the court might decide, for the first time, that some election maps were so warped by politics that they crossed a constitutional line. Challengers had pinned their hopes on Justice Anthony M. Kennedy, who had expressed ambivalence on the subject, but he and his colleagues appeared unable to identify a workable constitutional test.

The justices instead sidestepped the central questions in the two cases. On Tuesday, almost exactly a year after they last considered the Maryland case, the court will again hear arguments from Republican voters there who said their rights had been violated by a congressional district they said had been drawn to diminish their voting power.

The court will also hear arguments in a second challenge, this one from North Carolina Democrats who said the state’s congressional map yielded a 10-3 Republican majority despite very close statewide vote counts.

A ruling that limited partisan gerrymandering could transform American politics, reshaping House maps in several states, often but not always to the benefit of Democrats. But Kennedy’s replacement by Justice Brett M. Kavanaugh makes such an outcome less likely, election law experts said. Indeed, the court could rule that the Constitution imposes no limits on the practice.

The Supreme Court has ruled that racial gerrymandering can violate the Constitution. But it has never struck down a voting map as an unconstitutional partisan gerrymander.

The court’s decision to hear the new partisan gerrymandering challenges did not signal any particular enthusiasm for addressing the issue. While the court has almost complete discretion in deciding whether to hear most kinds of cases, Congress has made an exception for some disputes concerning elections. In those cases, Supreme Court review is all but mandatory.

This article originally appeared in <a href="https://www.nytimes.com/2019/03/26/us/politics/supreme-court-gerrymandering.html" id="1bb072c6-c254-3bfd-ad81-f2db5ccfacbc">The New York Times</a>.

WASHINGTON — The Supreme Court returns to the subject of partisan gerrymandering Tuesday, considering for a second time in two years whether drawing election maps to help the party in power can ever violate the Constitution.

Supreme Court Set to Again Weigh Voting Maps Warped by Politics

The court will also hear arguments in a second challenge, this one from North Carolina Democrats who said the state’s congressional map yielded a 10-to-3 Republican majority despite very close statewide vote counts.

The Maryland case, Lamone v. Benisek, No. 18-726, was brought by Republican voters who said Democratic state lawmakers had in 2011 redrawn a district to retaliate against citizens who supported its longtime incumbent, Rep. Roscoe G. Bartlett, a Republican. That retaliation, the plaintiffs said, violated the First Amendment by diluting their voting power.

Bartlett had won his 2010 race by a margin of 28 percentage points. In 2012, he lost to Rep. John Delaney, a Democrat, by a 21-point margin.

Last year, after the Supreme Court returned the case to the U.S. District Court in Maryland, a three-judge panel of that court ruled for the challengers, barred state officials from conducting further congressional elections using the 2011 maps and ordered them to draw new ones.

The members of the panel did not agree on exactly which legal theories applied, but all three judges said partisan gerrymandering was pernicious.

“The widespread nature of gerrymandering in modern politics is matched by the almost universal absence of those who will defend its negative effect on our democracy,” Judge Paul V. Niemeyer wrote, quoting an earlier opinion in the case. “Indeed, both Democrats and Republicans have decried it when wielded by their opponents, but nonetheless continue to gerrymander in their own self-interest when given the opportunity.”

“The problem is cancerous,” he wrote, “undermining the fundamental tenets of our form of democracy.”

Judge James K. Bredar echoed the last point. “Partisan gerrymandering is noxious, a cancer on our democracy,” he wrote.

The second case, Rucho v. Common Cause, No. 18-422, is an appeal from a decision in August by a three-judge panel of a federal district court in North Carolina. The ruling found that Republican legislators there had violated the Constitution by drawing the districts to hurt the electoral chances of Democratic candidates.

The judges noted that the legislator responsible for drawing the map had not disguised his intentions. “I think electing Republicans is better than electing Democrats,” said the legislator, Rep. David Lewis, a Republican. “So I drew this map to help foster what I think is better for the country.”

The plan worked. In 2016, the court said, Republican congressional candidates won 53 percent of the statewide vote. But they won in 10 of the 13 congressional districts, or 77 percent of them.

In 2018, the statewide vote was about evenly divided, but Democrats again secured only three seats. (Following evidence of election fraud and the death last month of a longtime incumbent, two seats are open.)

The court’s action means the corporation, which has not been identified, must provide information to the prosecutor or face financial penalties. The court’s two-sentence order gave no reasons and provided no details.

Almost everything about the case has been cloaked in secrecy, but a three-page ruling issued Dec. 18 by the U.S. Court of Appeals for the District of Columbia Circuit provided a few hints.

An unnamed foreign government, referred to in the ruling as Country A, owns the corporation, an unsigned order from a unanimous three-judge panel of the appeals court said. The panel was made up of Judges David S. Tatel, Thomas B. Griffith and Stephen F. Williams.

The panel rejected the corporation’s argument that it could not be forced to comply with the subpoena under a federal law that provides immunity from lawsuits to foreign governments in some circumstances. Even if that law applied to cases concerning grand jury subpoenas, the panel ruled, the law makes an exception for foreign governments’ commercial activities.

The panel also rejected the corporation’s argument that the subpoena was “unreasonable and oppressive” because complying with it would require the corporation to violate one of its home country’s law.

“The text of the foreign law provision the corporation relies on does not support its position,” the panel wrote, adding that explanations from the corporation’s lawyers and “a regulator from Country A” were unpersuasive.

“Consequently,” the panel wrote, “we are unconvinced that Country A’s law truly prohibits the Corporation from complying with the subpoena.”

The appeals court’s decision affirmed a sealed ruling by Chief Judge Beryl A. Howell of the U.S. District Court in Washington that had held the corporation in contempt and imposed, as the appeals court put it, “a fixed monetary penalty to increase each day the corporation fails to comply.”

On Dec. 22, in a sealed filing, the corporation asked the Supreme Court to stay Howell’s ruling. The next day, Chief Judge John Roberts temporarily put the matter on hold, ordering the government to file a response by Dec. 31. In the meantime, he wrote, the penalties imposed by Howell would not mount.

Such administrative stays issued by a single justice are usually meant to do no more than maintain the status quo while the full court considers what to do in the case.

Tuesday’s order vacated the chief justice’s temporary stay.

There is nothing in public court documents indicating that the prosecutor involved is Mueller. But the case has involved unusual secrecy even by the standards of grand jury subpoenas.

When the appeals court heard arguments behind closed doors, security officers cleared an entire floor of the courthouse so reporters could not see who the lawyers were as they went in and exited.

Politico wrote in October that one of its reporters had overheard an unidentified lawyer in the appeals court clerk’s office asking to see a sealed filing from the special counsel so his law firm could draft its response. The exchange with the man, who refused to identify himself, took place on the same day that a sealed filing was due in the mystery case.

And CNN has said its reporters twice saw a team of lawyers working for Mueller, including Michael Dreeben, an appellate specialist, going into a sealed courtroom to argue before Howell against an unknown litigant, including on a day when she later handed down a ruling in the sealed case.

This article originally appeared in <a href="https://www.nytimes.com/2019/01/08/us/politics/supreme-court-subpoena-mueller.html" id="2cd9db09-462f-3690-ada4-c248d8dd47ed">The New York Times</a>.

WASHINGTON — The Supreme Court refused on Tuesday to intercede in a mysterious fight over a sealed grand jury subpoena to a foreign corporation issued by a federal prosecutor who may or may not be Robert Mueller, the special counsel investigating the Trump-Russia affair.

Supreme Court Stays Out of Secret Case That May Be Part of Mueller Probe

<h1>The court’s action means the corporation, which has not been identified, must provide information to the prosecutor or face financial penalties. The court’s two-sentence order gave no reasons and provided no details.</h1>

Almost everything about the case has been cloaked in secrecy. But a three-page order issued on Dec. 18 and a more detailed opinion studded with blacked-out passages issued Tuesday after the Supreme Court acted, both from the U.S. Court of Appeals for the District of Columbia Circuit, provided a few hints.

Judges David S. Tatel and Thomas B. Griffith joined the appeal’s court’s unsigned majority opinion, and Judge Stephen F. Williams agreed with the outcome but not all of the majority’s reasoning.

An unnamed foreign government, referred to in the rulings as Country A, owns the corporation, the panel said.

The appeals courtr rejected the corporation’s argument that it could not be forced to comply with the subpoena under a federal law that provides immunity from lawsuits to foreign governments in some circumstances. Even if that law applied to cases concerning grand jury subpoenas, the panel ruled, the law makes an exception for foreign governments’ commercial activities.

The panel also rejected the corporation’s argument that the subpoena was “unreasonable and oppressive” because complying with it would require the corporation to violate one of its home country’s laws.

The appeals court’s opinion affirmed a sealed ruling by Chief Judge Beryl A. Howell of the U.S. District Court in Washington that had held the corporation in contempt and imposed a fine of $50,000 per day until it complied with the subpoena.

This article originally appeared in <a id="b42d13a2-8c40-4fd1-995a-a22613daf762" href="https://www.nytimes.com/2019/01/08/us/politics/supreme-court-subpoena-mueller.html">The New York Times</a>.

Supreme court stays out of secret case that may be part of Mueller probe

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Adam Liptak

Articles written by the author

Supreme Court Set to Again Weigh Voting Maps Warped by Politics

Supreme Court Set to Again Weigh Voting Maps Warped by Politics

Supreme Court Stays Out of Secret Case That May Be Part of Mueller Probe

Supreme court stays out of secret case that may be part of Mueller probe