Travel Ban DA

AT: Moot
Not moot yet---Hawaii is challenging.
Ryan Lovelace 10-5-17, the Supreme Court reporter for the Washington Examiner,
“Trump attorneys tell Supreme Court travel ban fight is moot, Hawaii says not so fast,”
October 5, The Washington Examiner, retrieved at:
http://www.washingtonexaminer.com/trump-attorneys-tell-supreme-court-travel-ban-
fight-is-moot-hawaii-says-not-so-fast/article/2636642
The Trump administration told the Supreme Court Thursday to view earlier litigation
over the president's travel ban as moot after Trump issued a new order blocking
citizens from certain countries from entering the U.S.

But the state of Hawaii, which is challenging the travel ban in the
courts, disagreed, saying that the earlier litigation should still be effective and the
justices should not toss out the lower courts' judgments against the Trump travel ban.
The Trump administration issued new guidance as the limited version of the ban, which
the high court allowed to proceed, reached its expiration date at the end of September.
Trump's new order issued late last month prompted the Supreme Court to scrap its
scheduled October arguments over the ban.
The Supreme Court had allowed the Trump administration to ban citizens of six
majority-Muslim countries unless they had close family members in the U.S. The ban
also blocked all refugees from entering the country for 120 days.
On Thursday, Solicitor General Noel Francisco argued that the cases were — or would
soon become — moot because of the new executive order and he urged the high court to
vacate lower courts' rulings against Trump.
"The appeal of the 4th Circuit's judgment is now moot in full, as is the 9th Circuit appeal
concerning Sections 2(c) and 6(b)," Francisco wrote. "For the only portion of the 9th
Circuit's judgment still at issue — regarding the global refugee suspension in Section 6(a)
— no respondent has a justiciable claim, and in any event the global suspension will
expire in less than three weeks."
The new restrictions that will be implemented later this month mean all foreign
nationals from Iran, Syria, North Korea are suspendedindefinitely from coming to the
U.S. Citizens of Chad, Yemen and Libya are banned from coming to the U.S. as
immigrants and as nonimmigrants on business (B-1), tourist (B-2) and business/tourist
(B-1/B-2) visas. All immigrant Somalis also will be suspended from coming into the
United States.
The Trump administration added Chad, Venezuela and North Korea to the list of
countries, while Sudan and Iraq were removed after evaluations involving the
Departments of Homeland Security, Justice and State. Neal Katyal, Hawaii's counsel,
wrote that no new developments — the September expiration date and new guidance
— should change the travel ban litigation the high court had agreed to hear.

"Neither of these developments renders the existing dispute moot, and the
[Supreme] Court may continue to hear the case," Katyal wrote. "But if the court
deems it imprudent to address the questions presented in this posture, the proper course
is to dismiss the petition as improvidently granted and permit the parties to litigate their
dispute in the context of the Proclamation ("EO-3")."
American Civil Liberties Union attorney Omar Jadwat also wrote Thursday that
Trump's newest guidance did nothing to alter the conduct the challengers
view as harmful.

"Plaintiffs retain an all-too-real stake in the outcome of the case," Jadwat wrote. "The
90-day ban on their relatives has now been converted into an indefinite ban with the
potential to separate their families, and thousands of others', for years. And the religious
condemnation of the earlier executive order is not dissipated by EO-3, which — despite
some new window dressing — continues to relay a message of disparagement to the
plaintiffs and other members of their faith."
Whether the Supreme Court shares the government's view of the travel ban litigation as
moot will determine whether the next site of the legal battle will restart at a lower court
or continue at the Supreme Court. Hawaii is spoiling for a fight at the high court,
but an outcome where the Supreme Court does not vacate lower court rulings against
Trump's ban would benefit Hawaii in its ongoing fight against Trump's ban.
District Court ruling last week would unmoot the travel ban case---our
evidence assumes recent travel ban alterations.
Josh Gerstein 9-29-17, a senior reporter for POLITICO, “Lottery visa case could
unmoot SCOTUS fight on travel ban,” September 29, Politico, retrieved at:
http://www.politico.com/blogs/under-the-radar/2017/09/29/trump-travel-ban-
supreme-court-lottery-visa-243297
A judge's ruling Friday on a suit brought by winners of the U.S. annual visa lottery could
complicate any attempt by the Supreme Court to declare moot the larger legal
fight over President Donald Trump's travel ban executive order.

U.S. District Court Judge Tanya Chutkan issued an order early Friday morning requiring
the State Department to save "unused" slots for two Iranian citizens and two Yemenis
who won an annual, 50,000-person lottery for visas to immigrate to the U.S., but have
been blocked from receiving those visas due to Trump's directive suspending
issuance of visas to nationals of Iran, Yemen and four other majority Muslim
countries.
In a lawsuit filed in federal court in Washington, the four lottery winners claimed
Trump's March executive order essentially bumped them out of line. Trump altered
the travel ban policy again earlier this week, but broad restrictions remain in
place on both Iran and Yemen.

Chutkan's appeared to accept the would-be immigrants' arguments that since the
deadline to receive a visa under this fiscal year's lottery is Sept. 30, it would be unfair
for them to lose their spots if Trump's policy is ultimately declared illegal or
unconstitutional.
"The court is merely ensuring that Plaintiffs will not be deprived of a remedy should the
Supreme Court rule in their favor," the Obama appointee wrote in a 17-page
opinion posted at about 1:30 A.M. Friday.
Chutkan's ruling may ultimately be of little value or impact since the State Department
now says it expects all 50,000 visas will be allocated by Sept. 30. In fact, a State official
said the department expects to overshoot the mark by about 200. The judge only ordered
State to save a FY 2017 visa slot for the four applicants and their family members if such
slots remain available at the end of the year. She didn't rule out some other remedy for
the applicants at some later point.
The judge's order indicates that the visa slots, if available, are to be set aside "in the event
the Supreme Court finds the Executive Order to be unlawful."
State regularly notifies thousands more people that they are winners than there are
available slots, essentially overbooking the process to account for applicants who never
actually follow through or are disqualified on various grounds.
About 91,000 people "won" the diversity visa lottery for the current fiscal year, State
Department statistics say.
Chutkan did not indicate what she plans to do if the Supreme Court doesn't rule one way
or another on the Trump travel ban order and instead declares the disputes before the
high court to be moot. The plaintiffs in the suit the judge ruled on Friday did not directly
challenge the legality of the travel ban, but they could try to update their case to do
so.

The unresolved fight over the diversity visas could also affect whether the Supreme
Court concludes that the fight over Trump's March order is indeed moot.
After Trump issued his latest changes to the policy, the high court ordered the
government and challengers to the travel ban to weigh in by next Thursday with briefs
addressing the mootness issue.
Gerrymandering DA
 Uniqueness!
Kennedy is the swing vote and will likely vote against partisan
gerrymandering---oral argument behavior is a significant indicator of the
eventual decision.
Oliver Roeder 10-4-17, a senior writer for FiveThirtyEight, and Galen Druke, podcast
producer and reporter at FiveThirtyEight, “What Justice Kennedy’s Silence Means For
The Future Of Gerrymandering,” October 4, FiveThirtyEight, retrieved at:
https://fivethirtyeight.com/features/what-justice-kennedys-silence-means-for-the-
future-of-gerrymandering/

By not opening his mouth, Justice Anthony Kennedy may have tipped his
hand in one of the biggest Supreme Court cases of the year. If history is any indication
— and although it’s a handy guide, it’s hardly infallible — things don’t look good for
extreme partisan gerrymandering.

The Supreme Court is hearing a case on whether partisan gerrymandering can be

considered unconstitutional, and Kennedy is likely to be the deciding vote. (For
more on why, listen to our podcast on the case.) Wisconsin is appealing a decision by a
lower court, which ruled that the way Republicans crafted the state’s electoral maps in
2010 was illegal. The attorneys for the state, who are defending the maps, got
plenty of questions from Kennedy, while the Wisconsin Democrats, who
want the maps struck down, got none. Kennedy spoke 10 times during the state of
Wisconsin’s arguments. He asked five questions and made five statements.

“If you get a lot of questions, you’re going to lose,” Adam Liptak, The New York
Times’ Supreme Court reporter, told FiveThirtyEight in 2015.
Justices aren’t just asking questions to get information from the lawyers arguing their
cases. In some ways, the questions aren’t meant for the lawyers at all. The justices ask
questions to signal their positions to their fellow members of the court, and to
potentially sway other justices to their side. If they’re skeptical of one side’s
argument, they often pepper that side with queries. Chief Justice John Roberts has
even described the lawyers as a “backboard” — the questions bounce off them and come
right back to the bench.

A body of academic research has confirmed this conventional wisdom,

showing empirically that questions from the justices are usually bad news for the party
on the receiving end. The number of questions, their length, their linguistic content and
even the tone of voice in which they’re asked are all statistically significant factors
in predicting the court’s eventual decision.

Bryce Dietrich, a political scientist at the University of Iowa, provided us with data on
the questions Kennedy has asked in cases from 1988 to 2014, gathered from
transcripts of the oral arguments. There are 5,151 lines in these transcripts that Kennedy
directed toward either the petitioner (the party asking the high court to hear the case) or
the respondent (the party that won the case in the lower court) when asking a question.1
That data shows that Kennedy is no different from the rest of the court: You don’t want
to be on the receiving end of his questions. When Kennedy votes for the respondent
(which would be the Wisconsin Democrats, in this case) he directs 93.3 words to them
(57.5 percent of his speech). When he votes against the respondent, he directs 102.0
words to them (61.1 percent of his speech).

And on Tuesday, he directed zero words to the respondent. Historically, he

directed zero words toward the party he went on to vote for 272 times, out of
1,022 cases in this data set. He directed zero words toward the party he wound up voting
against only 177 times.
 2NC Kennedy = Swing
Kennedy’s the deciding vote---past gerrymandering cases prove.
Richard Wolf 9-29-17, Supreme Court correspondent for USA Today, “Supreme Court
justice holds key vote on districts drawn to help parties,” September 29, USA Today,
retrieved at: https://www.usatoday.com/story/news/politics/2017/09/29/supreme-
court-justice-holds-key-vote-rigged-elections-starting-wisconsin-case/704399001/#
The building blocks of the American political system go on trial at the Supreme Court
Tuesday, and it's not speculative to suggest that Justice Anthony Kennedy represents
the deciding vote. He claimed that role 13 years ago.

The issue is whether state legislators can choose their voters, rather than the other way
around, every 10 years by drawing election districts with partisan impunity. In 2004,
four justices said yes, four no; Kennedy said maybe.

The result was another decade of partisan gerrymandering. Republicans

capitalized in 2010 by gaining control of both houses in 25 states, which they used to
draw districts that have favored their side ever since. In 2012, they won 53% of the vote
but 72% of the House seats in states where they drew the lines.

Now comes a new case from Wisconsin, one of the most purple states in the 2016
presidential election. President Trump won the state by a single percentage point. But
thanks to maps drawn by Republicans in 2011, the GOP emerged with a 64-35 advantage
in the state Assembly and a 20-13 edge in the state Senate.
That partisan display, Justice Antonin Scalia wrote for the winning side in the 2004 case
from Pennsylvania, isn't something the federal courts should fix. Kennedy agreed in
that specific case but issued a warning for the future.

"If courts refuse to entertain any claims of partisan gerrymandering, the temptation to
use partisan favoritism in districting in an unconstitutional manner will
grow," he wrote.

Grow it has, and not only by Republicans. Democrats' redrawing of congressional

district lines in Maryland has been challenged in another case pending at the Supreme
Court. Republicans' line-drawing skills have prompted similar lawsuits in North Carolina
and Pennsylvania.
Unlike past challenges to partisan gerrymandering, the Wisconsin case also comes with
suggestions for ways to measure the burden placed on voters — in this case Democrats —
who were purposefully scattered among some state legislative districts and packed into
others to minimize their clout. Kennedy basically asked for those suggestions 13 years
ago.
"That no such standard has emerged in this case should not be taken to prove that none
will emerge in the future," he said. "If workable standards do emerge to measure these
burdens ... courts should be prepared to order relief."
Quoting Kennedy, to Kennedy
When lawyers for the voters challenging Wisconsin's maps filed their main Supreme
Court brief last month, they quoted Kennedy 41 times, beginning with their opening
paragraph: Partisan maps "penalize citizens" because of their "association with a political
party, or their expression of political views," he said in 2004.

They have reason to be hopeful. In the past, Kennedy has lamented political
polarization and gridlock — conditions made worse by the election of hard-right and
hard-left partisans who disdain comity and compromise.

Two years ago, he cast the deciding vote in letting voters take Arizona's
redistricting process away from the legislature and assign it to an
independent commission, such as the one Kennedy's home state of California already
had.
Cornell Law School professor Michael Dorf, a former Kennedy law clerk, says the justice
isn't shy about courts weighing in on political matters.
"He is pulled to the idea that challenges to the machinery of democracy ... should be
justiciable," Dorf says. And Kennedy most likely sees partisan gerrymandering as "a kind
of cheating. It think it offends his sense of fair play."

On the other hand, the 81-year-old justice lamented in 2013 that the courts should
not have to decide major issues best left to the political branches.

"A democracy should not be dependent for its major decisions on what nine unelected
people from a narrow legal background have to say,” he said.
A 'political thicket'
The question of unelected judges making political decisions has confounded the court for
decades. In a 1946 opinion on whether political districts should be roughly equal in
population, Justice Felix Frankfurter said courts "ought not to enter this political
thicket" and instead should rely on Congress or state legislatures to fix what's broken.
Only in the 1960s did Chief Justice Earl Warren write the final chapter in that debate,
ruling that state legislative districts as well as those for Congress must achieve the
principle of one person, one vote.
But the question in gerrymandering cases is different: It's not about the vote itself but its
relative weight in picking winners and losers. Challengers in Wisconsin contend that
when Democrats are packed into the districts their candidates win and sprinkled into a
greater number of districts their candidates lose, the system is rigged against them.
A federal district court ruled 2-1 last year that those districts discriminated against
Democratic voters "by impeding their ability to translate their votes into legislative
seats." It demanded that the legislature draw new district lines by this November for use
next year, but the Supreme Court — with Kennedy's approval — blocked that
requirement by a 5-4 vote.

Arguing for Wisconsin Tuesday will be Solicitor General Misha Tseytlin — another of
Kennedy's former law clerks. His brief — which quotes Kennedy 33 times — refers to
gerrymandering as a "centuries-old status quo" and warns that any ruling against it
would have to rely on one or more of the mathematical formulas devised by opponents.
The result, he says, would be that in many states, "any displeased voter ... can file a
lawsuit in federal court."
Daniel Epps, an associate professor at Washington University School of Law and another
of Kennedy's former law clerks, says his former boss's search for the right balance
between voting rights and judicial restraint was on display in the 2004 case.

“You can sort of see him struggling with it," Epps says. "And now is going to be
the time when he has to come up with an answer.”