“But Courts Are Ill-Suited to Deal with Redistricting”

Those who think gerrymandering is not something that the courts should be dealing with start with this argument: the Constitution gives states the right to create Congressional voting districts and the winners have always been given the right to tilt these districts to their longer-term advantage. Look at all those nasty carpetbaggers who invaded the South after the Civil War and made sure they – and not those nasty local former Confederates – configured Congressional voting districts to favor Democrats.

Courts have pretty much towed the line, allowing this traditional practice, hoping that Congress – if it were sufficiently concerned – might address the issue, perhaps even by proposing a constitutional amendment. Wink, wink. Since whichever party is the majority is in control may have benefitted by an unfair districting advantage, Congress just might be the least likely source for a solution, and as for a constitutional amendment in a deeply polarized society, well, we know that cannot happen. The last constitutional amendment (concerning Congress’ right to give itself a raise) that passed – the 27th in 1992 – took 203 years from inception to passage!

But the Supreme Court, in May of this year, made it very clear that there were some bases for redistricting that were clearly unconstitutional, where courts were willing to intervene. “In the decision in Cooper v. Harris, the eight-member pre-Gorsuch roster upheld a district court’s ruling that two congressional districts in North Carolina were unconstitutional racial gerrymanders, putting an end to one part of a six-year saga that began with redistricting in 2011.” The Atlantic, May 22nd. OK, “racial discrimination” has long been a bright red line that the Supreme Court has honored… but in Cooper, the Supreme Court also made it clear that gerrymandering was no longer an issue that they were forced to avoid.

Yet would the court go beyond this rather narrow grounds to challenge non-racially-biased political manipulation to favor incumbents? Gerrymandering state legislators twist and squirm to marginalize the losing minority party in future elections and maximize the power of their supporters. Their methods (see above chart): “packing” (where the votes of the party to be limited are concentrated into a single district, resulting in wasted votes in lopsided victories – you win one, opponents, but we win the rest) and “cracking” (diluting and spreading the opposing party’s voters among several districts that lean safely to majority party’s side). It’s been pretty much, “neah, we can, so what are you gonna do about it?!” justification, claiming that objective standards are elusive if not impossible to apply and courts lack the staffing to implement their decisions.

And those two issues appear to be what troubles the Supreme Court Justices who are loathe to address such cases at all. On October 3rd, the court heard oral arguments in just such a challenge. “The case, Gill v. Whitford, No. 16-1161, started when Republicans gained complete control of Wisconsin’s government in 2010 for the first time at the beginning of a redistricting cycle in more than 40 years. Lawmakers promptly drew a map for the State Assembly that helped Republicans convert very close statewide vote totals into lopsided legislative majorities… In 2012, after the redistricting, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats.” New York Times, October 3rd.

Liberal justices were undeterred, just as conservative justices expressed their reluctance to get involved in what they perceived as a purely political process: “Some of the court’s more liberal members said the problem represented a crisis for democracy and that the Supreme Court should step in… ‘What’s really behind all of this?’ Justice Ruth Bader Ginsburg asked. She answered her own question: ‘The precious right to vote.’

“In extended remarks, Chief Justice John G. Roberts Jr. expressed worry that the court’s authority and legitimacy would be hurt were it to start striking down voting districts in favor of one political party or another… ‘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,’ he said…

“The Supreme Court has never struck down an election map on the ground that it was drawn to make sure one political party wins an outsize number of seats. The court has, however, left open the possibility that some kinds of political gamesmanship in redistricting may be too extreme.

“The problem, Justice Kennedy wrote in a 2004 concurrence, is that no one has devised ‘a workable standard’ to decide when the political gerrymandering has crossed a constitutional line… On Tuesday [10/3], he pressed Erin E. Murphy, a lawyer for Wisconsin lawmakers, about whether a state law could require drawing districts to have the maximum number of votes for a given political party. Other justices followed up on the point, and Ms. Murphy gave equivocal answers.

“Justice Kennedy grew frustrated. ‘I have to say that I don’t think you ever answered the question,’ he said… Justice Sonia Sotomayor asked Ms. Murphy more fundamental questions… ‘Could you tell me what the value is to democracy from political gerrymandering?” Justice Sotomayor asked. ‘How does that help our system of government?’

“Ms. Murphy said that gerrymandering ‘produces values in terms of accountability that are valuable so that the people understand who isn’t and who is in power.’… That did not seem a sufficient reason, Justice Sotomayor said, ‘to stack the decks.’… Much of the argument concerned various statistical tests for identifying extreme gerrymandering. Misha Tseytlin, Wisconsin’s solicitor general, said the challengers were relying on flimsy and hypothetical social science evidence… ‘Plaintiffs are asking this court to launch a redistricting revolution based upon their social science metrics,’ he said.

“Chief Justice Roberts told Mr. Smith that courts are poorly equipped to evaluate social science data. ‘It may be simply my educational background,’ the chief justice said of the studies before the court, ‘but I can only describe it as sociological gobbledygook.’” New York Times. So what are those “flimsy and social science” systems, that “gobbledygook,” that identify and can suggest corrective measures? Those elusive standards that plagued Justice Kennedy in 2004 appear to be rather clearly solved today. Maybe it requires a scientific and mathematical mind understand the nuances of the calculations, but in my mind and given the level of computer analysis today, understanding what those programs do is rather simple, common sense. And Justice Roberts is sufficiently educated to understand that (B.A. Harvard College summa cum laude and J.D. Harvard Law magna cum laude).

One of those rather objective standards is called the “efficiency gap” method where the number of “wasted votes” (effectively the margin of victory) in any district is compared with statewide results (the statewide margin of victory) to see the levels of disparity. Where that “gap” is large, particularly where such gap exists fairly consistently in districts throughout the state, this is rather clear and objective proof of gerrymandering.

Another such objective standard applies a geometric/geographical algorithm that, for lack of a more detailed description, looks at the relative “compactness” of a voting district. Thus, to the extent that there are relatively long distances between various groupings of identifiable voters, a district can objectively be determined to be gerrymandered, and that same mathematical algorithm can be used to reconfigure the district fairly. For more detail on the latter construct, see my March 11th Fake Voting Districts blog.

While nobody seems to be disputing the obvious unfairness of gerrymandering, some conservative justices seem to be mired in an unscientific past or simply believe that that this is simply “politics” where courts should not tread. During the questioning on October 3rd, conservative Justice Samuel A. Alito Jr. said, “Gerrymandering is distasteful, but if we are going to impose a standard on the courts, it has to be something that’s manageable.”

When it comes down to bottom lines, if gerrymandering is “distasteful” even to a  strongly conservative justice appointed by a Republican president, if that practice truly chafes at and threatens U.S. democracy itself, it does seem as if the Supreme Court is the most appropriate (if not the only) venue to end this nefarious practice for all time. Maybe the past sittings of the court could not deal with this problem because old analytical systems were excessively subjective, but modern analytics have permanently solved that problem today.

Likewise, as with housing and school desegregation cases, when courts have been forced to implement complex decisions, they have successfully relied on the appointment of “special masters” (which can comprise more than one individual) to provide detailed plans, subject to court confirmation. The only barrier to a decision banning this undemocratic practice is a court that likes a system that operates to preserve undemocratic bias.

I’m Peter Dekom, and if the Supreme Court wishes to promote and perhaps even preserve American democracy, taking steps to end vicious polarization where a minority seeks to impose its will on a majority, this is the seminal case on point.