Posted on 06/22/2018 7:14:45 AM PDT by Kaslin
"I would prefer not to." That was the invariable reply of the title character of Herman Melville's 1853 story "Bartleby, the Scrivener," when asked by his employer to perform a task.
It's also a phrase you might use to describe the opinion of the Supreme Court in its latest redistricting -- or gerrymandering -- case, Gill v. Whitford. This was expected to be a closely divided case and one that many observers hoped would establish a clear legal standard to overturn partisan gerrymanders.
But all nine justices concurred in the central point of Chief Justice Roberts' opinion, that the plaintiffs lacked standing -- harm that affects them "in a personal and individual way" -- needed to bring the case. Evidently, they "would prefer not to" resolve the issue of when partisan district drawing violates voters' constitutional rights.
It's an issue the court first grappled with in 1973, less than a decade after its 1964 decisions requiring equal-population congressional and legislative districts. Back then, the court conceded that redistricting "inevitably has and is intended to have substantive political consequences." And when examining an obviously partisan Republican districting plan in Pennsylvania in 2004, eight justices were deadlocked 4-4, while Justice Anthony Kennedy found no constitutional violation but no remedy.
"There are yet no agreed upon substantive principles of fairness in districting," he wrote. His concurrence in Gill v. Whitford suggests he hasn't found one in the intervening 14 years.
The plaintiffs, Wisconsin Democrats, who thought they'd found one, must be disappointed. Their theory is that a districting plan should give each party the proportion of legislative seats identical to its proportion of the total votes for legislature statewide. They objected that Republican districters prevent this by "packing" (putting too many Democrats in some districts) and "cracking" (putting just enough Republicans in some districts to win). They complained that leaves many Democrats' votes "wasted."
There are some obvious problems here. Some candidates, even in this straight-ticket era, run well ahead of their parties. And over the 10-year period between censuses, some voters switch parties, such as in 2006 and 2008 and perhaps this year. Plus, how does a court judge that too many votes are wasted and decide how much reverse cracking and packing is necessary to compensate?
More fundamentally, requiring courts to attempt to equalize each party's number of "wasted" votes amounts to saying that the Constitution requires proportionate representation of the sort specifically imposed in many countries. But the Constitution explicitly leaves Congress free to decide that, and since 1842, Congress has chosen instead to require single-member districts with equal population.
Justice Elena Kagan, in a concurring opinion endorsed by the three other Democratic-appointed justices, takes the view that the Wisconsin plaintiffs could prevail in the lower court to which the chief justice remanded the case if they present their case more strategically. She argues that the chief justice ignores precedents that suggest harm to a political party and not just individual plaintiffs violates a First Amendment right of freedom of association, recognized by Justice Kennedy in 2004.
But like many Democratic politicians and commentators, Justice Kagan overstates the evils of partisan district drawing. "More effectively every day, that practice enables politicians to entrench themselves in power against the people's will," she writes.
This ignores the redistricting legerdemain of Democratic Rep. Phillip Burton, whose hand-drawn redistricting plans gained more than a dozen House seats in California and other states in the 1970 and 1980 election cycles. Liberals didn't think gerrymandering imperiled democracy back then.
The Democrats' current problem is not just that Republicans controlled districting in more states than Democrats after the 2000 and 2010 Census; it's also, as the court and the Wisconsin plaintiffs recognized, that Democratic voters are demographically clustered in central cities, sympathetic suburbs and university towns, while Republican voters are more evenly spread around.
A party whose voters are demographically clustered is at a disadvantage in any legislature with equal-population single-member districts. One solution for Democrats is to try to appeal beyond their current redoubts, as President Bill Clinton did in the 1990s. That might even neutralize Republicans' redistricting advantage after the 2020 census.
Gill v. Whitford suggests the courts won't bail the Democrats out if they don't. Justice Kagan and her colleagues may be eager to help, but they don't have a fifth vote in sight. And Chief Justice Roberts and four of his colleagues seem to be saying, "I would prefer not to" -- and that the equal-population requirement effectively limits political gains from partisan redistricting.
Plaintiffs present their case more strategically? You mean, not sloppy & unprepared?
Bkmk
RATS whining about Republicans using their methods, eh?
The word “Party” does not appear in the U.S. Constitution. There is no legal basis to make it a test for illegally proportioned districts.
I would think that districting should represent the natural shared interests of people who happen to live near one another. If that won’t do, create a government based on representatives at large. In other words, a government other than the one we have now.
The court ruling that dictated equal populations among all of the House districts is an artificial and impossible standard. The first example is the single representative allocated to small states who have insufficient population to qualify for two or more representatives. Those states can never meet the equal population mandate. Secondly, The District of Columbia, Puerto Rico, and all other possessions do not have a full member of the lower House. They get a pretend representative. and, of course, representatives are only required to have equal populations at that moment in time when redistricting occurs subsequent to the decennial census. The day after the census is taken, the populations begin to change and won’t be adjusted for 10 years. This is a ridiculous ruling and opens the barn door for all kinds of political manipulations.
Congressional District boundaries should be constrained by existing political boundaries as we currently do with State boundaries. Add the smaller political entities to the mix: counties, townships, boroughs, cities, wards, precincts, etc. Boundaries in existence on the Census canvass day must be used to craft the new districts and the districts must be defined by entire political divisions when possible. Expansion to include adjacent smaller political division would only occur when those areas were required to achieve equivalent sized districts. This would constrain the political mischief and ensure that we will tend to have districts that enjoy geography, economies, culture, and interests in common.
The duty of creating the specific boundaries within these constraints would be in the power of the legislature of the several states and keep the judges out of it. Completely prohibited would be any “nonpartisan” commission, board, or other unelected busy bodies.
Of course, this will never happen.
So lovely how Kagan provides guidance to her fellow travelers to weasel their petition through the courts. Legislating from the bench is not your job.
SCOTUS kicked the can down the road; a problem ignore usually gets Worse.
Didn’t Obama famously state that elections have consequences?
ah, Bartleby; ah, humanity...
Not quite. Kagan meant for them to go judge shopping and find a more "friendly to the cause" Judge.
There isn’t any problem, except in rat states and states with “non-partisan” commissions, but we come out ahead in the whole thing.
Of course, they did.
If the court mandated a non-partisan method of drawing district boundaries such a method would rule out districts drawn to ensure minority candidates (black districts).
These guaranteed Democrat districts would not be safe guarded from being eliminated in Red States or being drawn out in states that loose congressional district due to declining population.
The political fall out of eliminating Gerrymandering is not something cowardly justices want to deal with.
Black districts are a good thing, they keep Black dem voters from infesting Republican districts (thus helping them elect White democrats). It’s democrats that want that vote spread out.
Not my point.
First rule of politics: Perception is reality.
If the reps in these Gerrymandered Black districts lose their seats due to the court ordered “Non-Partisan" redistricting the perception will be that a conservative court helped the Republicans. That it was racism that drove the decision and the redistricting was drawn to eliminate the Black congressmen.
The Supremes do not want to pick up that hot rock.
And we don’t want them to cause that would actually help the democrats win more seats.
bump
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