On Elections

How people elect parliaments

US Supreme Court says cheating with electoral boundaries is just fine

The toxic virus of political partisanship today infected the United States Supreme Court, with a majority of five judges appointed by Republican presidents voting to declare that federal courts should not interfere with state and national electoral boundary cheating.

The US political system is currently based entirely on single-member electoral districts. Gerrymandering – the deliberate distortion of the boundaries of such electoral district to advantage one political party – has during the present decade reached historic levels, predominantly through the misconduct of Republican state legislators.

The impact of gerrymandered boundaries is estimated to be distorting elections for the national US House of Representatives by up to 20 seats in favour of the Republican party. Multiple state legislatures including those in Ohio, Michigan, North Carolina, Virginia, Wisconsin and others are likewise seeing strong pro-Republican political distortion due to biased maps.

In one state – Maryland – the dominant Democratic legislators have likewise created gerrymandered maps.

Under current US arrangements, these state and congressional electoral maps are actually determined by the state legislators themselves – the very beneficiaries of the corrupt practice.

In a majority judgement with several serious conceptual flaws, Chief Justice John Roberts overturned 30 years of precedent decisions and bluntly ruled that cases brought by litigants about gerrymandering could not be resolved by the Supreme Court, nor by the lower federal courts.

The basis of Robert’s main finding was that there was no ‘manageable standard’ by which the cases could be resolved, and that this problem rendered the whole subject matter ‘non-justiciable’.

Roberts argued that dealing with gerrymandering was too conceptually difficult for his court, and that trying to do so would result in the court being tied up in a large number of litigated cases.

This will come as a surprise to the two federal courts from which the appeals decided today has been brought, in Maryland and North Carolina, where panels of judges had found no difficulty in discerning standards for deciding the case. Three other federal courts in Ohio, Michigan and Wisconsin have recently done likewise.

The five lower court findings were all quite similar, and were based on related legal decisions in ‘redistricting’ cases over the past half century where electoral boundaries had been corrupted by population malapportionment or by racial discrimination.

In truth, the Supreme Court could simply and easily have confirmed the standards used already by the lower courts, and thus brought order to the subject nationwide. The five Republican-appointed judges today simply decided not to do so.

The ‘flood of litigation’ argument is manifestly a straw man. Assuming that at most 20 states currently have the conditions for serious gerrymandering, had the Court set clear standards the lower federal courts could soon have resolved the outstanding and any new cases, and the practice of gerrymandering would likely have been sharply reduced for the next decade’s round of redistricting, starting in 2021.

In any case the Supreme Court has clear control over which appeals from lower courts it accepts, how it dismisses weak cases, and how it consolidates similar cases.

Today’s Court split is inherently factionalised, both in terms of differing legal philosophies and in terms of the continuing politicization of election-related US court decisions. The majority decision is the outcome of a long-running campaign by a number of the more legally conservative judges to change the direction of the Court’s jurisprudence.

A chain of opinions from past and present conservative judges – hitherto always in the minority on the Court on this issue – have caviled against the precedents set by a long series of clear majority rulings – dating from the 1960s – that underlying democratic principles in the US Constitution apply to block racial discrimination, malapportionment of district populations, and other forms of electoral cheating.

These past judgements had specifically confirmed that simple partisan gerrymandering was also included in this approach, although until the present decade no case of gerrymandering had been serious enough to result in an electoral boundary map being overturned.

Only in the past three years have lower courts determined gerrymandering-specific cases, all of which were then appealed to the Supreme Court.

Even today the conservative judges cannot seem to find a substantive position on what really actually constitutes wrongful gerrymandering. Lacking support for any argument about the substantial constitutional issues raised by gerrymandering, the conservative justices had retreated to relying on the ‘non-justiciability’ argument, which is simply a declaration that the courts should not even consider these cases. This is the position which the 5-4 ruling today has finally endorsed, even though it directly defies the precedents set by all the related cases since the 1970s.

In fact the ‘non-justiciability’ argument is built on pure air, taking comments from wider past jurisprudence about the non-justiciability concept and stretching the actual issues raised by legislative gerrymandering until – for those judges who wanted it to – it tendentiously connects with the framing of the non-justiciability concept.

The legal chain of reasoning is however riddled with factual denials of the nature of gerrymandering, as well as denials of significance of undisputed facts about the behavior of the legislators and political party operatives who created the gerrymandered boundaries.

Chief Justice Roberts’ ruling is, frankly and also ironically, expressed in judicial gobbledygook – mocking his own past criticism of the work of political scientists in determining mathematical approaches to measure the extent of gerrymandering impacts.

In a second theme in today’s court opinions, the Roberts’ opinion sought to support the majority finding by insisting that state redistricting laws and practices were properly the province of the state legislators, which could take up the task of reforming redistricting practices. Alternatively, some states allow the public themselves to launch referendum initiatives that could potentially reform state laws and constitutions.

It is a constitutional novelty to argue that simply because legislative competency over a subject matter is given to a specific level of legislature (or to legislatures in general), that constitutional protections do not apply. This is nothing less than a casual evasion of the entire concept of judicial review of legislative acts, which dates from the early 19th century.

The minority judgement of Justice Elena Kagan pointed out the obvious rebuttal to this airy (and hypocritical) justification; that the relevant state legislatures are in fact populated by legislators who owe their own seats, and their continuing political power, to the continuation of gerrymandering. Moreover in some cases, they were indeed the very legislators who designed and adopted the current gerrymanders.

Justice Kagan also observed in her dissenting opinion – part of which she read aloud from the bench – that to step aside from judicial review of legislative acts is to abandon the Court’s fundamental role of ensuring that the provisions and entitlements created by the US Constitution are duly observed.

The option of public referendum initiatives was also easily rebutted as a false alternative. During the hearings in March it was noted that the option is not even available in all states, being rare in states ‘east of the Mississippi’ for historical reasons.

In all recent instances voter initiative attempts have been delayed, blocked, or even subsequently overturned by the very legislators they are attempting to overrule. At present the implementation of a number of voter initiatives is being bitterly resisted by incumbent state legislators.

The Court majority correctly points out that state legislatures, or the national Congress, could legislate to reform corrupt gerrymandering practices. But using that very politically improbablepotentialto feed back to support the blunt finding that the courts should not hearthese cases is in no way a finding of constitutional principle. It is a bare and ‘activist’ political policy choice made by the current majority of five judges. The conclusion is unsupported by the Court’s own past precedents, nor by any of the lower District Courts which have recently considered these cases.

The Chief Justice expressed a third stream of policy concern which, he ruled, provided a final legal basis for blocking the courts from deciding gerrymandering cases: that involvement in deciding these disputes would involve the courts in ‘political questions’, creating the perception that the courts would be favouring partisan sides with each decision. Yet with today’s decision he has himself wrought exactly the outcome he claimed to have feared.

In an already toxic US political environment, where hyper-partisanship is running amok, it is seriously naïve of the Chief Justice to believe that this outcome will be seen as enhancing any reputation the Court may have for non-partisanship. The opposite will happen.

If it wanted to minimize the number of future litigations brought against gerrymandering, and limit the extent to which courts would decide marginal cases (and thus possibly be seen as partisan), the whole Roberts Court today could easily have been united in crafting a narrow standard, based on the logical work of the lower District courts, and crafted only to reject the most clear and egregious partisan gerrymandering cases. Even the majority conservatives on the Court could, had they wished, have joined such a result, and in doing so preserved some dignity for at least grappling with the underlying problem.

But instead the majority have taken the intellectually lazy option of resorting to the blanket declaration of non-justiciability.

The Chief Justice may well come to regret leading the Court down this course. The standing of the Court majority, and inevitably of the Court as a whole, will be seriously damaged by this clearly partisan-oriented ruling.

 

Reactions from some of the major US writers on electoral matters and gerrymandering in the media today:

Supreme Court says federal courts don’t have a role in deciding partisan gerrymandering claims – Robert Barnes, Supreme Court correspondent at the Washington Post, 27 June

The Supreme Court’s Partisan Gerrymandering Ruling Is a Body Blow to Our Democracy –  Dahlia Lithwick, legal analyst at Slate magazine, 27 June

Supreme Court justices ‘turned their backs on voters’ in gerrymandering ruling, advocates say – Eric Ortiz, NBC News, 27 June

The Supreme Court deals a blow to voters’ rights – David Daley, Boston Globe, 27 June. Daley wrote that [the Court majority has] “…ensured an unfettered orgy of partisan gerrymandering when the next round begins in 2021.” Daley is the author of Ratf*cked (2016), a detailed analysis of the current decade’s serious gerrymandering carried out by Republican state legislators.

Supreme Court Gives Free Rein to Partisan Gerrymandering – Yurij Rudensky, Annie Lo, Brennan Centre for Justice, 27 June. The Brennan Centre is itself a frequent litigator or intervenor in electoral law cases.

John Roberts, Somehow, Thinks The Solution To Gerrymandering Is Politics – Sam Leving, Huffington Post, 27 June

SCOTUS won’t end gerrymanders. States won’t. Here’s how: proportional representation; #ProRep! – Daily Kos website, 27 June.

The Supreme Court just guaranteed a more divided and dysfunctional country – John Avlon, CNN, 28 June

The Supreme Court Won’t Stop Partisan Gerrymandering. Now What? – Zachary Roth, Talking Points Memo, 28 June

 

 

Related:

The Next Threat to Redistricting Reform – by Rick Hasen, Harvard Law Review 22 Oct 2018 – Hasen is one of the US’ pre-eminent political scientists on electoral matters. In this article he expresses concern that in addition to blocking court consideration of gerrymandering exercises, conservative judges may in future also attempt to block resolution of the problem through the creation of  state and federal independent commissions, or by public referendum initiatives.

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