The Supreme Court delivers blow to democracy


Published: 7/10/2019 9:32:04 AM

For America, elections where the winner has been determined before the votes are cast is democracy enough. So ruled the Supreme Court in late June.

The justices’ vote in Rucho v. Common Cause, the gerrymandering case, was 5-4, with President Donald Trump appointees Neil Gorsuch and Brett Kavanaugh in the majority that held that elected officials can choose their voters instead of the other way around. Chief Justice John Roberts wrote the decision.

There actually were two cases. The first came from North Carolina. There, as Roberts conceded, “The Republican legislators leading the redistricting effort instructed their mapmaker to use political data to draw a map that would produce a congressional delegation of 10 Republicans and three Democrats.”

“I think electing Republicans is better than electing Democrats,” said Rep. David Lewis, a Republican member of the North Carolina General Assembly, addressing fellow legislators when they passed the plan in 2016. “So I drew this map to help foster what I think is better for the country.”

Why 10 Republicans and three Democrats? Because, he explained, “I did not believe it would be possible to draw a map (that would ensure the result) of 11 Republicans and two Democrats.”

The North Carolina Legislature approved the election plan on a party-line vote. And in the elections that followed, the plan worked perfectly. Republican candidates won 10-3 in 2016 and would have had the same result in 2018 except that one Republican victory was overturned in the state courts because of the fraud that pervaded that particular election.

Roberts, in his decision, also adopted the lower court’s finding that the state legislature’s “predominant intent was to discriminate against voters who supported or who were likely to support non-Republican candidates and to entrench Republican candidates through widespread cracking and packing of Democratic voters.”

“Cracking” and “packing”?

A cracked district takes a geographically logical district with, let’s say, a clear majority of Democrats and spreads those voters out among many districts so that Democrats have almost no chance to win any of them. A packed district takes the opposite approach to achieve the same result. A packed district concentrates or packs together voters aligned with one party so that candidates from that party will win in that district, but will lose in all, or almost all, the others.

In the second case, from Maryland, the Democratic-controlled assembly performed the same political sleight of hand in order to enlarge its Democratic majority in the U.S. House of Representatives from six to two to seven to one.

Gerrymandering has changed dramatically. Justice Elena Kagan, writing for the dissenters, noted that while gerrymandering has been a facet of American politics since the early days of the republic, technology and data collection recently have dramatically and irreparably changed gerrymandering from the crude line-drawing of the past to a precise and accurate, durable and effective, predictor of elections.

In her dissenting opinion, Kagan notes that today’s gerrymanders “insulat(e) politicians against all but the most titanic shifts in the political tides. These are not your grandfather’s — let alone the Framers’ — gerrymanders . . . At its most extreme — as (in these cases and in other states) — the practice amounts to rigging elections ...”

Kagan also makes this quite remarkable and equally irrefutable observation: “The majority disputes none of this. Indeed the majority concedes (really, how could it not?) that gerrymandering is incompatible with democratic principles.”

But the majority ruled that this assault on democracy was not something worthy of the court’s effort to fashion a remedy. It demurred and decided that the federal courts no longer could even hear a gerrymandering case. Instead, politicians in power may continue to rig elections in their and their party’s favor.

Many of us are familiar with the Supreme Court’s rulings of “One person, one vote.” Roberts and his clan dispense with this constitutional mandate by saying that promise-laden phrase means only that the number of voters in each congressional district shall be approximately the same. And nothing more. That’s all it means.

In 2000, the Supreme Court had no difficulty inventing a novel legal theory, never used before and never since, to hand George Bush the presidency. Here, in contrast, the court ruled that the federal judiciary should neuter itself and ignore overt partisan gerrymandering because the topic was a “political question.” Roberts insisted that the issue was too complicated, too fraught, for a court to decide.

You can look for a silver lining here, but it’s hard to find. As Kagan said of voters whose voices have been silenced and votes discounted or discarded, it is “conceivable that someday voters will be able to break out of that prefabricated (gerrymandered) box . . . But everything possible has been done to make that hard (and) to create a world in which power does not flow from the people because they do not choose their governors ... The practices challenged in these cases imperil our system of government.”

This statement is indisputably true. If and when the history of the demise of democracy in America is written, June 27, 2019 will be marked prominently as the date the Supreme Court provided explicit directions on how to make rigged elections voter-proof.

Bill Newman is a Northampton-based civil rights attorney and a radio talk show host.

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