A political judiciary

Las Vegas has two daily newspapers. Their editorials agree about as frequently as it snows in that city. But they have found themselves in agreement on one issue—whether Nevada District Judge Todd Russell should be involved in legislative redistricting.

“Gov. Sandoval has expressed confidence in Judge Russell,” the Las Vegas Review-Journal asserted. “The judge has given us no reason to be so optimistic.”

The Las Vegas Sun agreed: “Russell should have sent the matter back to the Legislature, where it belongs, but instead has concocted an odd plan, appointing three ‘special masters’ with no particular experience in the complexities of redistricting to draw the maps.”

The dispute that brought about this unusual amity between two journalistic rivals arose when the Nevada Legislature enacted redistricting plans for both the Legislature and the state’s U.S. House seats. Those plans were vetoed by Gov. Brian Sandoval.

Sandoval vetoed plans drawn up by majority Democrats, produced maps that distributed Latino votes to give them enough influence in three of the state’s four U.S. House districts to have a strong voice with their representatives, an arrangement known as “cracking” that was supported by all the Latino legislators. Sandoval vetoed the bill and said he preferred a Republican plan that concentrated Latino votes in a single House district, giving them a bare majority in that district, a technique known as “packing.” Both cracking and packing are vulnerable to court challenge under the U.S. Voting Rights Act, depending on how they are handled, but both have also been upheld by some courts.

The allowable 120 days of the legislative session expired before the matter was resolved. Sandoval chose not call the lawmakers back into special session, instead taking the issue to court. The case ended up in Russell’s courtroom. He was expected to find the Legislature had not performed its constitutionally required duty and perhaps even direct the governor to call the legislators back into special session, as happened in the Nevada case Dungan vs. Sawyer in 1965.

Instead, Russell took control of the legislative process and designated three public figures to serve as an unelected panel to devise a new plan which he would presumably try to enforce on the state. There is no authority in the law for Russell to write a redistricting plan for either the Legislature or the House seats. The Nevada Constitution at article 4, section 5 vests sole redistricting authority in the Legislature. The U.S. Constitution requires legislatures to create districts for House seats.

Russell’s actions have been growing into a more contentious clash, raising fears that he is politicizing the state judiciary. In addition to newspapers, the political parties and the state chief justice have been showing signs of concern. But legislators themselves, whose power is being appropriated by Russell, have been largely silent—even conservatives, who usually complain about activist judges.

The notion of a court writing a redistricting plan is considered by constitutional scholars as such an extreme remedy that, they say, it would only be used in an equally extreme situation that was nearly hopeless. That’s not the situation Nevada faces. The Legislature succeeded in producing two reasonable redistricting plans. The only obstacle was politial bickering.

“Judge Russell’s creation of an entirely new system of appointing special masters to devise the redistricting plan is creative, and arguably born of necessity,” said Cleveland State University law professor Susan Becker, who has done work on the politicization of the courts. “But a strong argument can be made that the remedy is unconstitutional because it contravenes the unambiguous language of the Nevada constitution’s redistricting provisions.”

Russell’s gambit ate up time while his panel learned the issue and the technology. The delays have made aspiring candidates around the state restless. On Sept. 30, Nevada Chief Justice Nancy Saitta took the unusual step of writing to Russell about the case. She called to his attention her authority to “conduct a reasonable inquiry and investigation to determine whether an emergency is of sufficient magnitude to necessitate temporary reassignment of the public’s judicial business.” She raised only the question of whether the redistricting case was taking up too much of Russell’s time, not of whether he should be redistricting the Legislature in the first place.

Russell replied in his own letter: “I anticipate that a final order in this [redistricting] matter will be issued shortly after November 16, 2011.” Last week his panel of advisors sided with the Democratic plan on Latinos. It’s unknown what set of open meeting and public noticing requirements Russell’s panel used—executive, legislative or judicial. Russell has declined comment, another contrast with the legislative process.

Secretary of State Ross Miller asked the Supreme Court to stop Russell’s efforts until some legal questions could be settled. The court let Russell go ahead but directed Miller to provide information on whether courts have authority over redistricting.

Further politicizing the case is the way Russell’s actions have aided incumbents. Political consultants say that extended notice of what districts will look like is of greater value to challengers than incumbents. The longer the process is dragged out, the better for incumbents.

Then there is the issue of Black Robe Fever. When the plan produced by Russell is appealed to the courts, the appeals judges will be put in the position of assessing not an act of the Legislature but an act of a fellow judge. “The issue of whether Judge Russell’s fellow judges, including those sitting on the Nevada Supreme Court, will strike down his remedy deepens the political intrigue that normally attaches to all redistricting challenges,” according to Professor Becker. If a fellow district judge or the Nevada Supreme Court rules in Russell’s favor, it will be vulnerable to criticism that judicial harmony rather than the law determined the result.

Becker also notes that “it seems unlikely that the judges will uphold Judge Russell’s unique remedy. The term ‘judicial activism’ is a loaded one and often used as a short hand method of criticizing decisions with which we disagree. But in this case, it does appear that Judge Russell has taken a hugely ‘activist’ step of essentially writing new provisions into the Nevada Constitution to address situations where the Legislature and governor cannot agree. … And rewriting the state constitution is an inappropriate role for the judiciary to assume, regardless of apparent necessity.”

Some observors say the Supreme Court cannot hold that Russell exceeded his authority because the litigants did not raise that issue early on when Russell invited such objections, the implication being that enforcement of the Constitution need not be carried out if participants in a lawsuit agree, thus putting the public at the mercy of litigants’ lawyers, who are notorious for their timidity toward judges.

Even if Russell produces a district plan, it’s not clear how it could be implemented, since it still would not have been approved by the Legislature, as required by law.

Why haven’t legislators spoken out? Political scientist Fred Lokken said he was shocked that state legislators surrendered their powers without a fight. His best guess for a reason was that the lawmakers were taken aback by “just how political this redistricting is.”

This is not the first time Judge Russell’s actions have drawn fire. Earlier this year he quashed an effort by the secretary of state to throw open the U.S. House special election to all comers, instead restricting the race to candidates anointed by political party organizations. He never disclosed that he had a business relationship with one of the beneficiaries of his ruling, Mark Amodei, who was ultimately elected.