Friday, November 16, 2018

Courts Still Needed to Curb Political Gerrymanders

      Chief Justice John G. Roberts Jr. made clear in two partisan gerrymandering cases earlier this year his plan to keep the Supreme Court out of that political thicket by disposing of the cases without settling the issues presented. Now comes another judicial intervention skeptic, the Washington Post columnist Charles Lane, to claim in a post-election column that successful anti-gerrymandering ballot measures in five states prove that federal courts are not needed to cure the acknowledged political problem.
      Redistricting reform advocates gained significant ground, to be sure, with ballot measures approved on Nov. 6 in Colorado, Michigan, Missouri, and Utah and a measure approved by Ohio voters earlier in the year, all aimed at reducing the partisan excesses of congressional and legislative districting. Colorado, Michigan, and Utah now join the 20 or so states with independent commissions empowered to draw or propose legislative or congressional districts or both.
      To be clear, however, the Wisconsin political gerrymander that Roberts helped preserve for the time being in Gill v. Whitford is still alive and well, according to a report in the Madison-based weekly Isthmus. Along with electing a Democratic governor, Democrats won a majority of the votes in state legislative races, but Republicans maintained a 63-36 edge in the legislature's lower chamber thanks to the politically skewed maps they drew nearly a decade ago. A three-judge federal court had ordered the maps redrawn, but Roberts concocted a technical legal issue in the Supreme Court proceedings to set aside the decision and leave the misdrawn districts in effect for one more election cycle.
      The ballot measure results show the political appeal of creating independent commissions to take redistricting away from state legislatures. Colorado voters approved Amendment Y and Amendment Z to create separate legislative and congressional redistricting commissions each with 71 percent of the vote. Michigan's Proposal 2 also won easily with 61 percent of the vote, while the successful margin for Utah's Proposition 4 was a scant 2,000 votes.
      Ohio and Missouri took different tacks to try to reduce the political excesses of drawing district maps. Ohio's Issue 1, approved with 75 percent of the vote in the May 8 party primaries, requires a 60 percent majority in the state legislature to approve congressional districting, including at least 50 percent of the members of each of the two major political parties. Two other states, Connecticut and Maine, require a two-thirds supermajority requirement for redistricting, but Ohio added a unique provision to specify minimum support from each of the two major parties.
      Missouri's Amendment 1, approved on Nov. 6 with 62 percent of the, creates the new office of nonpartisan state demographer to draw legislative and congressional districts subject to a statistical test to measure partisan fairness. The demographer's maps will be subject to approval by the previously created bipartisan redistricting commissions.
      Lane, a friend and colleague who covered the Supreme Court for the Post a while back, argued in his column [Nov. 13] that even without the new redistricting commissions, voters themselves thwarted gerrymandering politicians by breaking free from their partisan map-drawing. The mapmakers, he argued, had not reckoned with the changing views of the suburban voters who had been packed into supposedly safe Republican districts but instead broke Democratic in 2018.
      All told, Lane concluded that what he called the United States' "partisan gerrymandering problem" is now "on its way to being cured, with no need for federal judicial intervention." In an earlier column, Lane had seconded Roberts' view from the bench that the Supreme Court risks political crossfire if it tries to draws a line against partisan gerrymandering.
      The Supreme Court's 2017 term had been viewed as the year when the justices would finally settle on a workable standard, but the two cases that separately challenged the Republican gerrymander in Wisconsin and a Democratic gerrymander in Maryland ended only with whimpers. Roberts led the Court in sending the Wisconsin case back for plaintiffs to try to show legal standing to challenge individual districts instead of the statewide map.
      Roberts was surely the prime mover behind the unsigned decision in the Maryland case, Benisek v. Lamone, to dismiss the challenge as too close to the next election. On remand, the three-judge court in that case just ordered the state to redraw the districts, but the state has filed a notice of appeal.
      Redistricting reformers do not share Lane's sanguine view of the results of the Nov. 6 balloting in congressional races. Overall, Lane noted, Democrats won 52.5 percent of the vote in congressional races and — "wait for it" — 53.2 percent of the seats with some races still undecided. Lane conceded, however, that partisan gerrymanders performed just as intended in two states: Maryland, with one Republican in the eight-member House delegation, and North Carolina, with a reaffirmed 10-3 edge for Republicans in a closely divided state electorate.
      Partisan gerrymanders amount to "artificial walls to keep back the natural political tides," according to Justin Levitt, a professor at Loyola Law School in Los Angeles. The walls "held" in some states, including North Carolina, he explains in an interview. Democrats "managed to get over the wall" in others thanks to "extraordinary turnout," he acknowledges, but those successes "don't make it right that the obstacles were put there to begin with."
      In the meantime, the new redistricting commissions may give voters in those states some protection against political mischief. Voters in the majority of states, however, may still look to federal or possibly state courts —  notwithstanding Lane's reassurance to the contrary —  to offer some hope to cure the gerrymandering problem.

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