Redistricting, a Judicial Nightmare

While the constitution relegates to the states the configuration of congressional districts, based on population, modern courts have banned obviously and blatant attempts to impose strongly partisan districting intended to deny opposition party members meaningful voting power. That really doesn’t seem to have worked particularly well. As the chart from the November 23^rd Washington Post below illustrates, gerrymandering is very easy to implement.

After the Civil War, Democrats gerrymandered the South wedging in their political machine that lasted late into the 20^th century, and in recent years, GOP-controlled state legislatures (representing well-north of half the states) have wielded gerrymandering to suppress minority and older voters likely to skew towards the Democrats with wild success. It is interesting to note that had those congressional districts been configured without political bias, the Electoral College would have more reflected the popular vote, electing Hillary Clinton to the presidency.

There is an inherent unwillingness by courts to get heavily and directly involved in redistricting even where heavy bias in undeniable. Judges claim that they just do not have the tools effectively to implement redistricting, even though they do have the right, if the legislatures are unable or unwilling to comply with court orders, to appoint special masters (with staff) to do the necessary analysis and legwork, which a court can confirm or modify. Courts have previously looked only at obvious gerrymanders, usually based on de facto racial criteria, but that limited criterion seems now to be expanding.

In January of 2005, Mitchell N. Berman (University of Pennsylvania Law School) wrote a research paper for the University of Texas that stated in part: “[In the spring of 2004], in Vieth v. Jubelirer, the Supreme Court addressed a claim of unconstitutional partisan gerrymandering for the first time since having held such claims justiciable, 18 years earlier, in Davis v. Bandemer. Vieth was a fractured decision. All nine Justices agreed that partisan gerrymandering is of constitutional moment, a substantial majority declaring that excessive partisanship is unconstitutional. The Justices also united in rejecting the particular gerrymandering test advanced in Bandemer. There agreement ended. Four Justices proposed three tests to replace the unmeetable Bandemer standard. A four-member plurality would have overruled Bandemer more completely by holding that partisan gerrymandering claims present a political question. Standing alone, Justice Kennedy found no proposed test satisfactory but refrained from ruling such claims nonjusticiable. Acknowledging the difficulty in crafting judicially manageable standards and warning, therefore, that the plurality might in time be vindicated, Kennedy refused to admit defeat prematurely.”

Thus, the court agreed that such redistricting was wrong but failed to come up with a meaningful method to right the wrong. Here’s a simple enunciation of how gerrymandering is accomplished: “In accordance with a 1962 Supreme Court ruling on the principle of ‘one person, one vote,’ electoral districts are redrawn following the census every ten years. In theory, this helps to ensure that an equal number of people live in each district.

“However, the process of redistricting is typically conducted by state legislatures, making it prone to partisanship: The party in power typically wants to remain in power and keep the opposing party from winning seats. In many areas, this has led to bizarrely shaped electoral districts. Some are ‘packed’ with voters from that state's minority party, to prevent voters in an area from winning more than one seat. Elsewhere, deliberately ‘cracked’ voting blocs are spread across multiple districts to diffuse their influence and make their party less competitive.” NPR.com, November 22^nd.

Well, the solution to this conundrum is wending its way back up to the Supreme Court, where a Trump appointee could swing the decision towards a reversal of this recent federal appeals court ruling: “A panel of three federal judges said on Monday [November 21^st] that the Wisconsin Legislature’s 2011 redrawing of State Assembly districts to favor Republicans was an unconstitutional partisan gerrymander, the first such ruling in three decades of pitched legal battles over the issue.

“Federal courts have struck down gerrymanders on racial grounds, but not on grounds that they unfairly give advantage to a political party — the more common form of gerrymandering. The case could now go directly to the Supreme Court, where its fate may rest with a single justice, Anthony M. Kennedy, who has expressed a willingness to strike down partisan gerrymanders but has yet to accept a rationale for it.

“Should the court affirm the ruling, it could upend the next round of state redistricting, in 2021, for congressional and state elections nationwide, most of which is likely to be conducted by Republican-controlled legislatures that have swept into power in recent years.

“‘It is a huge deal,’ said Heather Gerken, a Yale Law School professor and an expert on election law. ‘For years, everyone has waited for the Supreme Court to do something on this front. Now one of the lower courts has jump-started the debate.

“‘If this were to be a nationwide standard, 2021 would look quite different,’ she said, ‘especially for the Democrats.’

“Several election-law scholars said the ruling was especially significant because it offered, for the first time, a clear mathematical formula for measuring partisanship in a district, something that had been missing in previous assaults on gerrymandering.

“The 2-to-1 ruling by the United States District Court for the Western District of Wisconsin said that the Legislature’s remapping violated both the First Amendment and the Equal Protection Clause of the 14th Amendment because it aimed to deprive Democratic voters of their right to be represented. ‘Although Wisconsin’s natural political geography plays some role in the apportionment process,’ the court wrote, ‘it simply does not explain adequately the sizable disparate effect’ of Republican gains in the State Assembly after the boundaries were redrawn.

“The judges who ruled in favor of the plaintiffs, Kenneth Ripple and Barbara Crabb, were nominated to the bench by Presidents Ronald Reagan and Jimmy Carter. Judge William Griesbach, nominated by President George W. Bush, dissented.” New York Times, November 21^st. With the 2020 Census looming, we need to now it will take several years following the compilation of that demographic data to impact the actual redistricting process. In the meantime, the redistricting issues are back in the courts for what promises to be a hot and highly controversial subject, one likely to spawn a new level of political hostility.

I’m Peter Dekom, and unless we start fixing these problems quickly, we may be witnessing the beginning of the break-up of the United States where each new nation adopts its own new constitution and voting structures.