Featured Post

New book available! David Kaiser, A Life in History

Mount Greylock Books LLC has published my autobiography as an historian,  A Life in History.   Long-time readers who want to find out how th...

Saturday, July 06, 2019

The gerrymander decision and the future of democracy

This week the Roberts court, by its customary 5-4 partisan majority, refused to affirm two separate lower court decisions that had invalidated state redistricting plans on the grounds that they were designed to secure unfair partisan outcomes.  The cases offered a perfect opportunity for a non-partisan decision, since they involved a North Carolina plan that ensured Republican dominance and a Maryland one designed to favor the Democrats.  Nonetheless, the Supreme Court majority ruled that the courts lack the power to intervene to prevent this kind of gerrymander.  That will insure a new round of gerrymanders in various states--although by no means all states--after we hold the census next year and re-allocate Congressional districts.

Over the years I have found myself drifting further away from partisans on both sides of our great political divide, and this case is no exception.  I think that the decision was wrong, on balance, and I think that Justice Kagan made a careful and powerful argument to show why it was wrong, parallel, in its way, to the excellent, fact-based argument that Justice Ginsburg made in support of the Affordable Care Act.  Yet I can also see some merit in Justice Roberts' argument that while partisan gerrymandering may indeed be a big problem, the federal courts are not the place in which to try to solve it.  And thus, I think it's at least possible that during the next twenty years or so, the decision could revive our democracy, in important ways, at the state level and in Congress.  Let me explain.

In his opinion, Roberts muddied the waters, in my opinion, by claiming that the objection to partisan gerrymandering by the plaintiffs in the original cases that reached the court came from a desire to protect the rights of political parties.  Those parties, he claimed, argued that a plan like the North Carolina one, which could give the Republicans 11 of 13 seats even if they won only 50% or so of the total vote, treated them unfairly.  But parties, he argued in effect, have no standing under the Constitution, and he is right.  That is not however the point.  The problem with these plans is that they diluted, to put it mildly, the rights of Democratic voters in North Carolina and Republicans in Maryland to have their votes heard.  The right to vote for Congress loses its effect if one find one's self in a district packed with members of the other party.  As Roberts had to admit, the federal courts have indeed ruled against certain forms of racial gerrymandering--those designed to distribute black voters so widely that they will find it very difficult to elect candidates of their choice.  Roberts ruled, however, that while one cannot do this to a person because they are black, one can do it to them because they happen to be Democrats or Republicans--a result which I find quite astonishing.

Roberts made two major arguments against affirming the lower court judgments. First, he claimed, it would be impossible to devise a rule stating what exactly constituted excessively partisan gerrymandering.  The Constitution, he noted, certainly does not mandate proportional representation for the two major parties in Congress.  Kagan demolished that argument in the most impressive part of her opinion.  The lower courts, she pointed out, had managed to do just that.  All parties to this controversy are now using computer programs to draw districts, and the states generally do lay down some general mandates about how redistricting is supposed to be done.  Using such a program, one can easily generate 1000 different plans for North Carolina, say, that respect that state's non-partisan guidelines.  One can then estimate the results that each of those plans will produce, and grade those plans according to how closely those results reflect the total vote for the two parties in the state.  One need not try to insist on the plan that produces the most perfect match--that is, the plan coming closest to proportional registration--but one could certainly rule out the 33% of plans (let us say) that most clearly favor the Republicans on the one hand, and the 33% that most clearly favor the Democrats on the other, on the grounds that they deprived too many voters of their 14th Amendment right to equal protection.  Such statistical tests, as even Roberts had to admit, have found their way into Supreme Court decisions in the past, including the antitrust case that broke up the ALCOA aluminum company, as I recall, on the grounds that its extraordinary market share made it, ipso facto, a monopoly banned by the Sherman Act.  And the court could easily have endorsed such a test in this case since both the Democrats in Maryland and the Republicans in North Carolina stated their motivations with such extraordinary frankness, leaving no doubt whatever that they simply wanted to increase their party's representation, period.  (For those who are interested, the North Carolina Republicans distorted the will of their voters more, but the Democrats in Maryland, one could argue, were in a way just as greedy, since they weren't content with a 6-2 edge in their Congressional delegation, but went through complicated redistricting to get it up to 7-1.)

Yet Roberts's second argument carried some weight for me.  The Constitution, he notes, states very specifically who is to arrange the election of members of Congress.  It gives that power to the legislatures of the states, while also reserving to the U.S. Congress the power to make such regulations as it deems appropriate.  Two democratically elected bodies, in other words, have the responsibility to insure fair elections.

The North Carolina and Maryland cases came to the Supreme Court because the legislatures of those states had abused that power so clearly.  Yet two other courses of action could have reversed their decisions.  The legislatures of those states could abandon partisan gerrymandering and set up nonpartisan commissions to recommend new districts.  This idea is not a fantasy: eight states, ranging from deep red to deep blue, have already done just that: Alaska, Arizona, California, Colorado, Idaho, Michigan, Montana, and Washington.  And the Constitution seems to allow Congress to mandate such a procedure for the whole country, should it choose to do so.  

Roberts' decision could indeed hasten such developments.  The new census and a new round of redistricting lie just around the corner, and his ruling will encourage partisan majorities in just about every state legislature do make the most partisan decisions that they can.  That prospect could set off a backlash that would create more state commissions to do the job, and even, conceivably, lead to Congressional action, which I believe the House of Representatives has already taken.  I also think Roberts has a point in one broader respect.  Extreme partisanship has hopelessly deadlocked our politics--and I agree that the federal courts can't solve that problem for us.  Our democracy simply won't work until and unless we find enough common ground to solve some problems together.  Like the very likely reversal of Roe v. Wade, this decision should encourage us all to focus more on the ballot box and our legislatures, the arenas in which true democracy is supposed to function.


Energyflow said...

I can change parties at will. As I discussed in my commentary last week or so political affiliation can be like religion, a very private matter, which can be very fluid and flexible. Race or sex is OTOH, once defined(god help us nowadays on both counts) unchangeable. I suppose gerrymandering is based on long-term traditional voting patterns which are themselves race, income, religion and gender based. Urban educated upper class vote democratic, rural church goers vote republican. Blacks and hispanics tend heavily towards democrats. Women split more to democrats but not so strongly. Millenials are more liberal than older voters. I presume the computer programs have this down to a science and use this for directed advertising on radio, with billboards and on local tv. Gerrymandering must be constantly updated as all these trends change. Blacks might swing towards republicans if they offer prison amnesties for petty drug offenses and support marijuana legalization, no offense for any drug possession. At any rate you are quite right in seeing that very bad policies create backlash. We see this everywhere now. Extremist viewpoints come to a logical end. The notorious supreme court decision that money is democracy is perhaps the worst case in point. Why not just put the presidency up for auction? Such decisions foment revolutionary anger in some, utter despair in others and cynicism in many. Trust in basic institutions is at any rate strongly diminished. This is of course why a rank outsider, populist demagogue managed to obtain office. When pure ideological influence and or basic corruption, even from those meant to be, by their very nature, blindly impartial, is everyday practice, then we are on the way to a 3rd world banana republic prima facie. Essentially you are looking at the situation in the sense that things have to get worse before they get better. Various parties of the ideological argument have unspoken concepts in their minds, which they only allow out of their cages in the last instance. I.e. our inner demons. Absolute power corrupts absolutely. When in a democratic area they start arresting white males for being white and in a republican area blackness, gayness, etc. is punishable by death we have reached the extremes. Thoughtcrime might be another way of control gven the technology or the amazing Chines credit system which follows enery action and inaction with a point or deduction, allowing or disallowing, graduated access to any and all public services. There race is homogenous, religion irrelevant but still control must be maintained. Party principle sway from left to right as in America but behind closed doors, without elections. Such a system attempts to help the population find a way of self control as in a school scenaro with goold stars for teacher's favourites. Electoral systems like ours must have a means of fair power distribution. Given less homogeneity in America, older, moneyed influences will protect rearguard against more radical elements. In Rome the senate was the court. The courts are now being stuffed systematically with conservatives while demographics is working in the opposite direction. California's example is notable. It used to be sometimes conservative, sometimes democrat but is now a one party state. Fights for offices are like in China, between left and right wing communists(democrats). America is moving in this direction demographically if one presumes certain ethnic political preferences. Must not remain so as we see in Brazil. If latinos and blacks become majority then rich ones wlould make a new democratic party of the moneyed and leave poor blacks and white hillbillies in jails and ghettos. Evil has no skin color or ideology.

Shelterdog said...

What happened to the concept that each person's vote ought to count the same as everyone else's--once characterized as "One man, one vote"? As Justice Black stated: In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), we held that the Constitution requires that ‘as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.’ Id., at 7—8, 84 S.Ct. at 530. Because of this requirement we struck down a Georgia statute which allowed glaring discrepancies among the populations in that State's congressional districts. In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and the companion cases,4 we considered state laws that had apportioned state legislatures in a way that again showed glaring discrepancies in the number of people who lived in different legislative districts, in an elaborate opinion in Reynolds we called attention to prior cases indicating that a qualified voter has a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1880); Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884); United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355 (1915); *53 Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915); Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Applying the basic principle of Wesberry, we therefore held that the various state apportionment schemes denied some voters the right guaranteed by the Fourteenth Amendment to have their votes given the same weight as that of other voters. Finally, in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), we applied this same principle to the election of Texas county commissioners, holding that a qualified voter in a local election also has a constitutional right to have his vote counted with substantially the same weight as that of any other voter in a case where the elected officials exercised ‘general governmental powers over the entire geographic area served by the body.’ Id., at 485, 88 S.Ct. at 1120.

Hadley v. Junior Coll. Dist. of Metro. Kansas City, Mo., 397 US 50, 52–53, 90 S Ct 791, 793, 25 L Ed 2d 45 (1970).

Moreover, what's the basis for saying that we can't fix this because it's complicated and it might be too hard to do? We're regularly called to resolve disputes where the differences are shades of gray. It's the job of courts to develop rules and boundaries to resolve disputes. Sometimes the controlling principles emerge only after the courts and litigants have tussled. Welcome to the practice of law.

Bozon said...

Interesting and informative post on the decision. Thank you.
Re Justice Roberts' decision, based apparently on prudential grounds, there are other modes with which the same court on a different day can reach a decision.
If one looks at how corporations have come to be treated, protected, and coddled, constitutionally and judicially, by the Court, there seem to be discrepancies in how different decisions treat various private corporate entities.

Political parties are obviously a special case, but the Court does not always refrain prudentially when positive corporate rights as persons, even against real persons rather than legal fictions, are at stake (Just an illustrative example):

"Update: A federal judge dismissed the DNC lawsuit on August 28. The court recognized that the DNC treated voters unfairly, but ruled that the DNC is a private corporation; therefore, voters cannot protect their rights by turning to the courts:

“To the extent Plaintiffs wish to air their general grievances with the DNC or its candidate selection process, their redress is through the ballot box, the DNC’s internal workings, or their right of free speech — not through the judiciary.”

"Rather than reflecting on the consternation everyday voters are having over the conduct of the Democratic presidential primary, the DNC is doubling down on the assertion that the primary election belongs to the people who control the party — not voters.

"In the transcript for last week’s hearing in Wilding, et. al. v. DNC Services, d/b/a DNC and Deborah “Debbie” Wasserman Schultz, released Friday, DNC attorneys assert that the party has every right to favor one candidate or another, despite their party rules that state otherwise because, after all, they are a private corporation and they can change their rules if they want.

All the best