Sunday, June 30, 2019

Republican Justices Boost GOP on Gerrymandering

      The Supreme Court's stunning decision to bar federal courts from hearing suits that challenge political gerrymandering whether practiced by Republicans or by Democrats has the misleading appearance of political evenhandedness. In a legal coup executed by five Republican-appointed justices, Chief Justice John G. Roberts Jr. slammed the federal courthouse door shut last week [June 27] to voters of any political stripe who object to having their votes count for nothing through the political skullduggery of partisan redistricting.
      Roberts took pains in announcing the Court's decision in Rucho v. Common Cause to make clear that the 5-4 majority was turning aside not only Democrats' challenge to a Republican gerrymander in North Carolina but also a challenge by Republicans to a Democratic gerrymander in blue state Maryland.
      History refutes any implication of political evenhandedness on the part of the Republican justices. Through three-and-a-half decades of political gerrymandering cases, all of the cases to reach the Court except Maryland's Lamone v. Benisek have been challenges to Republican-drawn district maps. In each of those cases, Republican mapmakers were credibly shown to have drawn congressional or legislative districts primarily for the purpose of helping elect Republicans at Democratic voters' expense: Indiana in Davis v. Bandemer (1985); Pennsylvania in Vieth v. Jubiler (2004); Texas in League of United Latin American Citizens v. Perry (2006); and Wisconsin in Gill v. Whitford (2018).
      Current political conditions reinforce the point that Republicans will benefit from federal courts being ordered to stay out of political gerrymandering cases. At present, Republicans control legislatures and gubernatorial offices in 20 states, while Democrats lag behind with unified control in only 12 states. More to the point, Republicans have been more aggressive in drawing district lines for political advantage in red states than Democrats have been in blue states.
      Indeed, Democrats and liberal advocacy groups have provided much of the political muscle behind the efforts that Roberts commends in his decision to create bipartisan or nonpartisan commissions to draw district lines. Thus, as political journalist David Freedlander remarked on Twitter, the likely effect of the ruling is for Republicans in red states to respond by "gerrymandering Democrats to a fare-thee-well"  and for Democrats in blue states to respond "by setting up a nonpartisan redistricting commission."
      Even in the two instant cases, North Carolina Republicans were guilty of a more serious offense than the Maryland Democrats. Partisan motivations were not disputed in either case. Maryland's Democratic governor Martin O'Malley acknowledged the new congressional map was designed to eliminate one of the state's two Republican House members. In North Carolina, state Rep. David Lewis, one of the chief legislative mapmakers, stated that his map was designed to preserve the Republicans' existing 10-3 edge in U.S. House seats.
      Lewis made no secret of his motivation. "I think electing Republicans is better than electing Democrats," he said. He offered the 10-3 map, he explained, only because he found it impossible to draw a map that would reliably elect 11 Republicans in a state closely divided between Republicans and Democrats.
      Roberts' answer to such political chicanery is to throw up the Court's hands and leave voter lambs to the mercies of political wolves. Reviewing the cases, Roberts wrongly concludes that history is destiny: the Court's failure in four cases to settle on a judicially manageable standard for gerrymandering cases proves, he says, that there is none.
      Writing for the Court's four Democratic appointees, Justice Elena Kagan followed Roberts' hand-down with an extraordinary fifteen-minute dissent, her voice cracking at times with emotion and as she said at the end "deep" sadness. She opened with a dramatic flair. "For the first time ever," she said, quoting her opening passage, "this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities." She answered Roberts by noting that lower federal courts have managed to rule on gerrymandering cases even if the Court's conservatives think they cannot.
      To be sure, it is not the first time that the Court has left a constitutional violation unremedied in the area of reapportionment and redistricting. To its lasting discredit, the Court in 1946 rejected a federal court suit by voters in Illinois seeking to force the state legislature to reapportion congressional districts as required by federal law to have equal populations. Justice Felix Frankfurter provided the pivotal vote in the 4-3 decision in Colegrove v. Green by urging his colleagues to stay out of what he called a "political thicket."
      Frankfurter is remembered today, unfavorably for the most part, as hard to get along with and indifferent to violations of constitutional rights. He remained on the Court long enough to see Colegrove overturned by a 6-2 decision in the seminal reapportionment case, Baker v. Carr (1962).  Chief Justice Earl Warren is today far better remembered and more honored than Frankfurter for leading the Court into remaking the political landscape by entrenching a seemingly obvious democratic principle: one person, one vote.
      After retiring, Warren claimed the Baker v. Carr line of decisions as the most important accomplishment of his 17 years as chief justice. Roberts, at age 65 and perhaps less than halfway through what could be a 30-year tenure, already ponders his legacy. This decision will be part of a legacy that mocks Roberts' insistence that the Court has no Republican justices nor Democratic justices and that, equally, mocks the promise carved in marble above the entrance to the Supreme Court building: "Equal Justice Under Law." 

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