Friday, July 5, 2019

Gerrymandering, the United States Supreme Court and the Illusion of Democracy

In one of its recent decisions, the United States Supreme Court made a decision that flies right in the face of what remains of democracy in the United States.

The case, Rucho et al v. Common Cause et al and Lamone v. Benisek looked at two lawsuits by plaintiffs in both North Carolina and Maryland who challenged their respective State's congressional districting maps as "unconstitutional partisan gerrymanders".  The plaintiffs from North Carolina claimed that North Carolina's districting plan discriminated against Democrats while the plaintiffs from Maryland claimed that Maryland's districting plan discriminated against Republicans.  The plaintiffs alleged that there were violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment and the Elections Clause.  The District Court in both states ruled in favour of the plaintiffs and, as a result, the defendants appealed to the Supreme Court.

Let's start by looking at some background.  Here is the First Amendment to the Constitution:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Here is the key part of the Fourteenth Amendment to the Constitution:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Fourteenth Amendment's Equal Protection Clause was originally intended to stop states from discriminating against blacks, however it has since been ruled by the Supreme Court that all racial discrimination against any people group is constitutionally suspect.  

The Elections Clause provides constitutional authority to the U.S. Senate and House of Representatives to regulate elections and empowers states to determine the "Times, Places and Manner" of Congressional elections.  Congress may pass federal laws regulating congressional elections that displace any state statues that are contrary to its own, preventing states from establishing both unfair election procedures or undermining the national government by refusing to hold congressional elections.  

The Supreme Court has long struggled with the concept of gerrymandering, an act which dilutes votes and is intended to advantage or disadvantage political parties.  In White v. Regester, the Supreme Court realized that constitutional injury occurred when districts are designed to "cancel out or minimize the voting strength of racial groups.".

Let's now take a look at the Congressional District map for North Carolina which were changed in 2016:

In this case, you can clearly see gerrymandering in District 1 although it has improved markedly in the new version.  In January 2018, federal judges ruled that the newly minted congressional districts were, once again, gerrymandered.

Here is a map showing the congressional districts for Maryland from 2011:

As you can see, the districts are very unusually configured, particularly Districts 2, 3 and 4.  In November 2018, a panel of federal judges ruled that Maryland must produce a congressional redistricting plan that isn't tainted by partisan gerrymandering for the 2020 election.  

Here is the decision for Rucho et al v. Common Cause et al as delivered by Chief Justice Roberts:

"Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible with democratic principles,” does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. “[J]udicial action must be governed by standard, by rule,” and must be “principled, rational, and based upon reasoned distinctions” found in the Constitution or laws.  Judicial review of partisan gerrymandering does not meet those basic requirements.

What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional—despite various requests over the past 45 years. The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives. Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.  Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts.

The judgments of the United States District Court for the Middle District of North Carolina and the United States District Court for the District of Maryland are vacated, and the cases are remanded with instructions to dismiss for lack of jurisdiction."

The five-to-four decision in favour of the conservative judges now means that state legislators can draw their own districts.  While you might think that this will balance out because Democratic states will skew congressional districts in their favour and Republican states will skew congressional districts in their favour, such is not the case.  This move by a conservatively controlled Supreme Court will surely favour Republicans as shown on this map which shows that Republicans control a majority of state legislatures:

There goes that illusion of American democracy.

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