Wednesday, 20 February, 2019

Three reasons to (cautiously) celebrate Supreme Court on gerrymandering

Manuel Balce Ceneta  AP FILE Manuel Balce Ceneta AP FILE
Deanna Wagner | 22 June, 2018, 18:46

Scholars have proposed a handful of ideas of how to redraw congressional districts more fairly. Turnout plummeted as well; between 2012 and 2016, Wisconsin suffered the second-biggest decline in voter participation nationwide.

The justices could soon take up another case involving a challenge to Republican-drawn congressional districts in North Carolina that could give them another chance in their next term to issue a broader ruling on partisan gerrymandering.

Roberts said the court was remanding the dispute to the trial judge "so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence-unlike the bulk of the evidence presented thus far-that would tend to demonstrate a burden on their individual votes". He notes that this seems to be an unfortunate pattern across the country: "In many areas, this racial isolation has occurred gradually over time, and is often written off as the result of demographic shifts and private preferences that are beyond a school district's control".

That was not the end of the matter for Justice Elena Kagan.

Those trying to change Wisconsin's state lines explained to justices in October that the Republican-drawn lines violated their constitutional rights to equal protection. Yesterday all nine justices found that the plaintiffs lacked standing to bring its constitutional challenge and therefore vacated the order of the district court.

The justices understandably want a rigorous and robust foundation upon which to set a precedent.

But for those who oppose partisan gerrymandering, there are three reasons to celebrate - if only partially - the Court's decisions. Right now, he said, there is no "clean sense of standing", and no "clean methodology" about how to challenge partisan gerrymandering. Courts have always been reluctant to decide when a district's boundaries favor one party, perhaps hoping voters might someday overcome their political divisions and cooperate in electing representatives who oppose partisan gerrymandering.

It doesn't have to be this way. "Partisan-asymmetry metrics such as the efficiency gap measure something else entirely: the effect that a gerrymander has on the fortunes of political parties".

Days before the Supreme Court gerrymandering decisions Monday, I talked in person with the two gerrymandering figures loved by their side and viewed as Enemy No. 1 by the other party - North Carolina Rules Chair David Lewis (R-Harnett) and Eric Holder (President Obama's attorney general).

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The high court now has its biggest Democratic majority in at least two decades, at 5-2. In Shelby County v. Holder, the court argued that anti-discriminatory provisions of the Voting Rights Act targeting states that had historically disenfranchised voters were no longer necessary. But because the justices dismissed the cases on procedural grounds, we still don't know what they think of those standards. Just a month ago, OH voters overwhelmingly passed redistricting reform, and other states like Colorado are not far behind. Gerrymandered legislatures nationwide have pushed aggressively for voter ID bills, culled voting rolls and limited early voting. The maps appeared to secure Democrats seven of eight seats in the U.S. House of Representatives. The Court held that the plaintiffs were not diligent in bringing their request and that the public interest favored keeping the map in place for now.

Worse, Republicans have attacked the rule of law itself when rulings go against their ability to game the system. Now, Politico reports, Democrats have already invested more than $7 million, opened multiple field offices and taken visits from rumored 2020 presidential hopefuls-including California Sen.

The justices unanimously ruled against Wisconsin Democrats who challenged legislative districts that gave Republicans a huge edge in the state legislature.

Roberts noted that the Wisconsin Democrats claimed their votes had been unconstitutionally diluted.

There is some hope.

O'Malley also now says he believes redistricting should be done by an independent commission rather than by legislators. "There is no way to make a plaintiff whole after an unconstitutional election happens".

Statement from Senator Hansen: "The court's decision shows just how much work needs to be done to restore fairness to our elections".

The idea behind the practice is straightforward: If you drew a district map that placed your opponent's supporters in as few districts as possible and spread out your own supporters in as many districts as you can while still having an advantage in each, you can strategically win elections, even when you have less numerical support.