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For states, another big term begins in the U.S. Supreme Court: Future policies on redistricting, affirmative action and unions at stake

by Lisa Soronen ~ October 2015 ~ Stateline Midwest »
When it comes to the impact on states, it would be hard to top the last U.S. Supreme Court term, when same-sex marriage bans were ruled unconstitutional, the newly created health insurance exchanges were saved, and Michigan and other states prevailed in a lawsuit over federal regulation of air quality.
But the term that began in October will be one to watch as well.
Cases involving redistricting, affirmative action and collective bargaining have already been accepted by the court. Adding to the intrigue, many of the decisions this term are likely to become part of the 2016 race for president.
Here is a preview of the most significant cases for the states that the court has agreed to decide so far.
Who to count when redistricting?
Under the principle of “one person, one vote,” (based on the U.S. Constitution’s Equal Protection Clause), voting districts must have roughly the same population. But what population is relevant: total population or total voting population? And who gets to decide? The Court will answer these questions in Evenwel v. Abbott.
Traditionally, states have used total population as the metric. But plaintiffs in the case now before the Supreme Court argue that this practice essentially violates the one-person, one-vote principle. The reason: Not everyone is eligible to vote — noncitizens, for example — and this population group is not evenly distributed among different districts. The number of voting-eligible residents in a district, the plaintiffs say, should be used by states in redistricting.
The case could change how states redraw their political maps and adversely impact districts with large numbers of people who are ineligible to vote.
Are ‘fair share’ laws constitutional?
Nearly 40 years ago, the U.S. Supreme Court upheld the state of Michigan’s “fair share” law: a requirement that public-sector employees who don’t join the union still pay their “fair share” of costs related to collective bargaining, contract administration and grievance adjustment.
This term, justices will be revisit that 1977 decision (Abood v. Board of Education).
In two recent cases, the court’s more conservative justices, including Justice Anthony Kennedy (often an important swing vote), have criticized Abood. Even if the court doesn’t outright overturn Abood, it may decide that public employees should be able to “opt in” to the payment of other union expenditures (such as political or ideological activities), rather than having to opt out. Overturning either “fair share” or “opt out” would substantially weaken public-sector unions.
Illinois, Minnesota and Ohio are among the U.S. states that currently have “fair share” laws in place.
When can race be used in admissions?
For the second time, the justices have agreed to decide whether a university’s race-conscious admissions policy is unconstitutional. And because the court decides relatively few affirmative-action cases, its decision in Fisher v. University of Texas at Austin could have broad implications for states.
Under Texas law, students who graduate in the top 10 percent of their class are automatically admitted to public colleges and universities. In 2008, at the University of Texas at Austin, minorities made up 21.5 percent of the students admitted under the Top 10 Percent Plan.
Most other applicants are evaluated through a holistic review in which race is one of a number of factors. The plaintiff in this case, Abigail Fisher, unsuccessfully applied to UT-Austin in 2008. She says the use of race is unnecessary because of the Top Ten Percent Plan.
In the past, the U.S. Supreme Court has held that the use of race in college admissions is constitutional if it is being used to further the compelling government interest in diversity and if it is narrowly tailored. A lower court ruled that the UT-Austin’s admissions policy is narrowly tailored. Only time will tell whether the nation’s highest court agrees.
Should 2012 ruling apply retroactively?
Two years ago, in a 5-4 decision, the U.S. Supreme Court ruled that states cannot mandate to a judge or jury that a juvenile offender be sentenced to life in prison without the possibility of parole.
“Such a scheme prevents those meting out punishment from considering a juvenile’s ‘lessened culpability’ and greater ‘capacity for change,’?”the majority opinion read.
Should the court’s 2012 decision, in Miller v. Alabama, be applied retroactively? Different state supreme courts have come to different conclusions. For example, the Illinois, Iowa and Nebraska supreme courts ruled that Miller should apply to criminal cases before that decision was handed down. The Michigan and Minnesota courts ruled differently.
The U.S. Supreme Court will now weigh in, and its decision will affect more than 2,000 prisoners.
Other potential cases to watch
As of late September, the court’s docket was only about half full. Thus far the justices have accepted two more narrow redistricting cases as well as cases involving the death penalty.
The court will also likely accept a case on the constitutionality of state laws that require abortion doctors to have admitting privileges at hospitals. Does this requirement, because it has caused numerous clinics to close, create an unconstitutional undue burden on those seeking an abortion?
Finally, the court will also almost certainly take a case alleging that compliance with the Affordable Care Act’s contraceptive mandate violates the rights of nonprofit religious employers under the Religious Freedom Restoration Act.