Stacking a legislature
by Tom Sullivan
Some donations are just donations. Other "donations" are bribes. Some gerrymandering is politics as usual. Some is election rigging. (And sometimes a cigar is just a cigar.) Knowing the difference these days is as hard as knowing news from "news."
The U.S. Supreme Court heard arguments yesterday in Gill v. Whitford, the Wisconsin gerrymandering case challenging whether a Republican Party that garnered only 48.6 percent of the votes but 60 of 99 legislative seats might have drawn districts that robbed Democratic voters of proportional representation. Part of that will turn on use of the "efficiency gap" in deciding how much gerrymandering amounts to election rigging.
Chief Justice John Roberts seemed more concerned about the reputation of his court than voters' rights, as Rick Hasen pointed out at Election Law Blog:
CHIEF JUSTICE ROBERTS: Mr. Smith, I’m going to follow an example of one of my colleagues and lay out for you as concisely as I can what — what is the main problem for me and give you an opportunity to address it.Hasen observes that, first, a mechanical test was not recommended, and that, second, the court is already seen as political. Hasen writes, "The Court that decided Shelby County and Citizens United along party/ideological lines is looked at by the intelligent woman (or man) on the street as the product of a highly ideological politicized Court." Roberts seems not to have noticed that horse has left the barn.
I would think if these — if the claim is allowed to proceed, there will naturally be a lot of these claims raised around the country. Politics is a very important driving force and those claims will be raised.
And every one of them will come here for a decision on the merits. These cases are not within our discretionary jurisdiction. They’re the mandatory jurisdiction. We will have to decide in every case whether the Democrats win or the Republicans win. So it’s going to be a problem here across the board.And if you’re the intelligent man on the street and the Court issues a decision, and let’s say the Democrats win, and that person will say: Well, why did the Democrats win? And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes. And the intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.
MR. SMITH: Your Honor –
CHIEF JUSTICE ROBERTS: It is just not, it seems, a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent. That doesn’t sound like language in the Constitution.
Gorsuch went on to give his colleagues a civics lecture about the text of the Constitution. “And where exactly do we get authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state legislative matters, it’s pretty clear—if you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-sixth Amendment, and even the Fourteenth Amendment, Section 2.” In other words, Gorsuch was saying, why should the Court involve itself in the subject of redistricting at all—didn’t the Constitution fail to give the Court the authority to do so?But all eyes were on Justice Kennedy, seen as the swing voter on the otherwise divided court. Mark Jospeph Stern writes at Slate:
Ruth Bader Ginsburg, who is bent with age, can sometimes look disengaged or even sleepy during arguments, and she had that droopy look today as well. But, in this moment, she heard Gorsuch very clearly, and she didn’t even raise her head before offering a brisk and convincing dismissal. In her still Brooklyn-flecked drawl, she grumbled, “Where did ‘one person, one vote’ come from?” There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.)
The judicial holy grail for gerrymandering opponents is Kennedy’s concurrence in 2004’s Vieth v. Jubelirer. Kennedy wrote that truly excessive partisan gerrymanders may run afoul of the First Amendment. This makes good sense. Consider Wisconsin. When Republican legislators drew lines designed to diminish the power of Democrats’ votes, they were punishing these voters for associating with, or expressing their support for, the Democratic Party. This kind of viewpoint-based burden on freedom of expression and association would seem to run afoul of basic First Amendment principles. In Vieth, Kennedy explained that he was thus prepared to strike down a political gerrymander, but not until he was provided standards that are manageable and consistent.When Wisconsin Solicitor General Misha Tseytlin argued that using a set of standards to decide when gerrymandering had gone to far would result in a battle of experts, the liberal women jumped in, as NPR's Nina Totenberg transcribed:
Justice Sonia Sotomayor observed that Wisconsin Republicans relied on these very experts to design and refine maps and to make the districts "more gerrymandered."What indeed? Gindberg asking what's behind it, one assumes, was both a serious and a rhetorical question. The larger question is whether there are five justices dedicated to defending popular democracy. Or a majority satisfied we must live with the founders neglecting to write in an explicit safeguard against those bent on subverting the democracy they so painstakingly built. And that the Supreme Court is not it.
"That's true," conceded Tseytlin.
So why didn't they take one of the less gerrymandered maps? Sotomayor asked.
"Because there was no constitutional requirement that they do so," Tseytlin replied, "as long as they followed traditional principles like having districts with equal populations."
Justice Ruth Bader Ginsburg wasn't buying the argument. "What's really behind all this?" she asked. What becomes of the "precious right to vote, if you can stack a legislature?"