U.S. IS IN TROUBLE IF US SUPREME COURT DOESN”T TAKE ON PARTISAN GERRYMANDERING

…Some examples of the bizarre shapes of the GOP’s partisan gerrymandered districts

 

GOP’s redrawn districts in 2010 increase their balance in the House by 41 seats.

 

 

I guess I don’t understand why it has taken so long for the US Supreme Court to take up the issue of partisan gerrymandering of all of the districts of the US House of Representatives.  Now, there’s no idea how the court is eventually going to rule about the illegal way the Republicans did it when they took over the House in 2010.

 

For years, the majority party in the House has had the responsibility for re-drawing each district’s borders.  And by losing the 2008 presidential election to the Democrats, and the GOP that vowed, but failed to make President Obama a “one-term president”.  The Republican party did a real job on redrawing the districts all over the nation like no other time in US history.

 

The Republicans did an outstanding job of computer-tailoring the district’s borders into some bizarre shapes that allowed the Republicans in the 2012 election to increase their balance in the House by 41 seats.

 

Those district’s lines were set to remain stable for 10 years, or until the next national census.  But if the GOP is still in charge of the House in 2020, it could be another decade before the severely gerrymandered lines would have ever be changed.

 

That is, if the US High Court doesn’t force some changes before then, which is seriously needed.

 

Partisan gerrymandering has become the norm in US politics because the Supreme Court has declined to declare it unconstitutional. For three decades, a majority of the justices have failed to identify manageable standards to determine when a plan rises to the level of an unconstitutional partisan gerrymander.  (With the high court so involved today as an activist court, we may not see any help with this issue for decades.)

As a result, the GOP’s state legislators have come to believe that they can draw partisan gerrymanders so long as they can satisfy just two issues.  First, if they do not violate the “one-person, one-vote” standards and if they do not reduce the electoral status of protected racial and ethnic groups. As a result, the 2010 round of GOP redistricting saw partisan gerrymandering run amok in most states.

 

However, some states have seen the light and this may be the reason the US Supreme Court will decide to think about the general public of the United States.

 

Of all the states that have made a move against the GOP’s 2010 districts, I was surprised to read that in 2015, the Florida Supreme Court invalidated a Florida congressional map as partisan gerrymandering.  This usually very Red state was taken to court by a League of Women Voters of Florida vs Detzner law suit.  As expected, the court did rely on very specific provisions of Florida’s constitution to come to this decision for invalidating the Florida congressional map.

 

As to the expected future state law-based challenges to the congressional maps, these challenges may prove more successful than those based on just the US Constitution alone.

 

Actually, the US Supreme Court could use the methods used in the Florida case that could be adapted to the federal context. This could help the Supreme Court decide on questions such as those standard for determining the intent of why the lines were drawn in certain cases.  The defendants of the district proposals would then need to justify their plans if a clear violation is found.  

 

At the determining phase of the redistricting, new methods may help decide whether an appropriate remedy involves overturning a whole redistricting plan, or just particular districts.

 

Another avenue for contesting partisan gerrymanders involves the challenging of majority-minority districts.  In a district plan that consists mostly of racial minorities, this would rely on cases going back to Shaw vs Reno (1993), that argues that districts are unconstitutional if race was the predominant factor determining the way the lines were drawn. If a jurisdiction can be forced to redraw majority-minority districts in a plan, the former elements of their carefully crafted partisan gerrymander might totally fall apart as the neighboring districts are disrupted in the process.

 

Last December, the US Supreme Court heard oral arguments on two “Shaw-type” challenges, one from Virginia and one from North Carolina. In both states, a mechanical litmus test was applied without consideration of the district’s local circumstances.  

 

As an example, if the district was structured so that minority voters were not in a position to elect their candidate of choice, that would be a case of not considering the district’s local situation.  Structuring a district just so that the percentage of minority voters was always out-numbered by white voters, that would be a direct violation.  In those districts structured that way in Virginia and North Carolina, this most likely would not allow for any black or minority candidate to be supported.

 

These two cases will be decided by the high court in 2017. If the courts are attentive to these local circumstances, they could conclude that adding or subtracting minorities to a district serves no legitimate state purpose.  Both parties are very aware that if a party were to pack a district with minorities, the historical affect is that the district would probably end up voting Democratic.

 

Perhaps most important, however, is a case from Wisconsin (Whitford v. Gill). In November, a three-judge federal court invalidated that state’s legislative districts in a 2 to 1 decision. The majority wrote:

 

“The plaintiffs have established … that the defendants intended and accomplished an entrenchment of the Republican Party likely to endure for the entire decennial period. … They did so when the legitimate redistricting considerations neither required nor warranted the implementation of such a plan.”

 

Stopping the gerrymandering is not a partisan issue; it benefits Republicans right now, but in the past it has helped Democrats. Regardless of which political party gains, the loser is American democracy.

 

Bernard Grofman is the Chair of Democracy Studies at the University of California, Irvine. He is a specialist on redistricting whose work has been cited in nearly a dozen US Supreme Court cases. Most recently he served as the special master to a federal-district court responsible for the redrawing of the lines of Virginia’s 3rd Congressional District after it had been declared unconstitutional.

 

Because recent computer-based partisan gerrymandering has been done so well and because increased partisanship has reduced the likelihood of split ticket voting, the results of most 2010 gerrymanders are going to be sticking with us. What that means is that the Republicans have a virtual lock on Congress for the rest of this decade.

 

The imbalance in their control of the states grew to a more than 4 to 1 Republican advantage following the 2016 elections.  This suggests that even more aggressive partisan gerrymandering is ahead of us in 2020.  That is unless the Supreme Court does act.

 

But, in 2017, if the court does not specify a manageable standard for identifying unconstitutional partisan gerrymandering, “partisanship gone amok” will continue indefinitely, leaving us with a never-ending political nightmare.  That being that congressional delegations will have partisan balance frozen into place regardless of any changes in the preferences of the voters.

 

That means we will be stuck where we are and the GOP will run everything for some time to come.  And we already know how poorly the Republicans are at governing.

 

Do not be surprised that if the GOP stays in control beyond the next 4 years, we may seeing another shot at a Great Recession or even a Great Depression.

 

 

Better get used to it.

 

Copyright G.Ater  2017