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.