Law & the Courts

The Anti-Constitutional Legal Campaign against Gerrymandering Reaches the Supreme Court

(Jonathan Ernst/Reuters)
In two upcoming cases, SCOTUS must resist the temptation to seize redistricting power for the judiciary in flagrant violation of the Constitution.

Last Friday, the Supreme Court quietly announced that it will hear two appeals arguing that legislative redistricting that disproportionately favors the political party controlling the redistricting process violates the Constitution. Oral argument in the cases, Lamone v. Benisek and Rucho v. Common Cause, will he heard in March. In Lamone, a panel of three federal judges ruled that the partisan motives of Maryland’s Democratic legislature in redrawing a traditionally Republican district to favor Democrats violated Republican voters’ right of association and electoral representation. In Rucho, another panel of three federal judges held that the disproportionate statewide results of districts drawn by North Carolina’s Republican state legislature violated the rights of North Carolina Democrats.

It is fitting that the Supreme Court hear these cases, because they are all the Supreme Court’s own fault. Article I, Section IV of the Constitution explicitly provides that Congress and state legislatures shall determine the “Times, Places and Manner of holding Elections for Senators and Representatives.” In 2004, the Court decided a challenge to partisan redistricting in Vieth v. Jubilirer along its usual ideological fault lines. Four Republican-appointed justices voted to uphold the above-quoted Elections Clause and four Democratic-appointed justices voted to find Pennsylvania’s redistricting after the 2000 census in some way unconstitutional. Justice Anthony Kennedy, as was so often the case, couldn’t make up his mind which side to join. He voted with the constitutionalist justices on the specific case, but wrote a concurring opinion in which he said that he might rule against partisan-influenced redistricting if someone could present him with a reasonable test for measuring it. The jurisprudence in this area has been a shambles ever since, as leftist plaintiffs have scrambled to propose tests to satisfy Justice Kennedy’s whimsy. These have been so convoluted that Chief Justice Roberts called them “sociological gobbledygook” in oral argument in a recent redistricting case.

Now that Justice Kennedy has been replaced by Justice Brett Kavanaugh, constitutionalists may hope that the Court will overturn Vieth and return to the Constitution’s investiture of this function in democratically elected federal and state legislatures. But nothing is ever certain, and it is important to keep in mind the two overarching issues in these cases.

First-Past-the-Post vs. Proportional Representation
All of the “sociological gobbledygook” presented to the Court, the complex mathematical models and theories attempting to supply Justice Kennedy’s test, are at bottom based on the disproportion between the overall statewide vote of the parties and the number of legislators elected. For example, in North Carolina, while Republicans won only just over 50 percent of the statewide vote in November’s midterm elections, they took at least nine of 13 congressional seats. (One race is still undecided.) But using statewide totals to test the “fairness” of an election fundamentally misunderstands the nature of the American electoral system.

Modern democratic nations use one of two different electoral systems. The United States and other nations influenced by Britain use a system commonly referred to as “first-past-the-post,” in which the winner of the most votes in each district is elected regardless of how voters in other districts vote. Many countries in continental Europe and elsewhere, meanwhile, use a system of proportional representation, in which legislative seats are allocated proportionately based on political parties’ overall vote across all districts.

Both systems are found in countries we would consider democratic, but they can produce very different results. Under first-past-the-post, each district gets the representative it prefers regardless of how many votes that representative’s party receives in other districts. Under proportional representation, the representative of a particular district in the legislature is determined based on each party’s performance in every district, meaning that substantially different districts get a say in one another’s representation. The two democratic systems are fundamentally incompatible.

In 2006 the Supreme Court stated in LULAC v. Perry that the Constitution does not mandate proportional representation. Consequently, Democratic plaintiffs have had to avoid forthrightly advocating the judicial imposition of proportional representation. Instead, they have disguised their arguments in gobbledygook. Every time they invoke statewide results, as the lower court does extensively in its Rucho decision, they are applying the utterly inapplicable standards of proportional representation to our Anglo-American first-past-the-post electoral system. If they get their way, the shell of first-past-the-post may remain in that the winner of the most votes in each district will still be seated, but the state legislature’s knowledge that its redistricting will be overturned by a court if it does not reflect the proportional aggregate statewide vote totals will effectively create a proportional system.

The most basic question of any representative democracy is how the people pick their representatives. Such a profound change in this basic function should not be the judiciary’s to make.

Repealing the Elections Clause
The anti-democratic judicial intrusion that the Democratic plaintiffs in these cases are seeking goes beyond even this fundamental reimagining of our electoral system. As noted, the Constitution vests control over elections in elected federal and state legislatures. Post Vieth, courts have rejected appeals to the Elections Clause by state-legislature defendants in redistricting cases. Let’s assume that the Supreme Court upholds some gobbledygook-based test, as in the lower court’s decision in Rucho. What will happen then? If Rucho is upheld, it will thereafter be political malpractice for any minority party to fail to challenge its state’s redistricting in court. Every redistricting plan in every state will be contested in every redistricting cycle. The Constitution’s Elections Clause will be neutered. While the residual presence of the clause will give state legislatures the first go at decennial redistricting, the final decision on every redistricting plan in every state every decade will be made by the courts. Effectively, the Court will have judicially amended the Constitution to transfer redistricting power from the democratically elected state and federal legislative branches to the federal judiciary.

Advocates of such a judicial power-grab argue that we must eliminate the evil of partisan gerrymandering in order to preserve democracy. But there are much less intrusive, more democratic methods of minimizing partisan influence on redistricting, such as non-partisan or bipartisan commissions. And if even if there weren’t, the anti-gerrymandering crowd would err in using partisan as a pejorative. For a democracy to mean anything, there must be choice, and partisanship is what offers that choice. If partisan influence on redistricting decisions is unconstitutional, even when the Constitution explicitly vests that responsibility in bodies whose members the framers knew very well would act in the interests of their supporters and allies, wouldn’t every partisan decision be constitutionally suspect? As much as we may dislike it, partisan politics is how democracy functions.

James W. Lucas is an attorney in New York City and the author of Are We the People? How We the People Can Take Charge of Our Constitution and Timely Renewed: Amendments to Restore the American Constitution.

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