June 19, 2018

SCOTUS Leaves Gerrymandering to the States

Cases in Wisconsin and Maryland are left to lower courts and the political branches to sort out.

The Supreme Court decided in two cases Monday on partisan gerrymandering to stay out of the political fray, choosing instead to rule against Democrats in Wisconsin and Republicans in Maryland who sued to change their respective state electoral maps.

In the Wisconsin case, Gill v. Whitford, the Court ruled 9-0 against a group of Democrat voters who claimed that the state’s redistricting plan was an unconstitutional partisan gerrymander.

Chief Justice John Roberts noted that the alleged dilution of the plaintiff’s voting power is an injury specific to a voting district. “Remedying the individual voter’s harm, therefore, does not necessarily require restructuring of all the state’s legislative districts,” Roberts wrote. The case was sent back to the lower courts for another look.

Justices Clarence Thomas and Neil Gorsuch objected only in sending the case back for review. “After a year and a half of litigation in the District Court,” Thomas wrote, “the plaintiffs had a more-than-ample opportunity to prove their standing under these principles. They failed to do so.”

In the Maryland case, Benisek v. Lamone, the Court ruled against Republican voters in Maryland who claimed Democrat officials put them at a disadvantage in drawing a congressional district that led to the defeat of Republican Rep. Roscoe Bartlett in 2012. In an unsigned opinion, the Court sided with the district court, which decided not to block Maryland from holding congressional elections and forcing the state to redraw the district in question.

The Supreme Court added that the plaintiffs waited too long to seek relief, since they did not ask for an injunction until 2017.

Voting-rights advocates were stunned by the back-to-back decisions. The ACLU, the League of Women Voters, Common Cause and other leftist voter groups had hoped the Supreme Court would pass down specific guidance on how to handle these types of cases. In other words, they were hoping that the justices would legislate from the bench.

No such luck. The Supreme Court has a solid track record of stepping around gerrymandering cases and avoiding wading into the political quagmire. Districting is a power delegated to the political branches, notes David French of National Review. “States can choose different ways to district,” writes French, “but when a state chooses the political path, the Supreme Court’s default position should be to defer, absent clear and unequivocal constitutional violations.” Claiming that your voting power was diluted because your political party happens to be in the minority in your district or state does not constitute a violation of voting rights.

Democrats have cried foul about redistricting for much of this decade because Republicans have won control of so many of the levers of power at the state and national level. Of course, Democrats can thank Barack Obama for their plight. His presidency drove millions into the waiting arms of the GOP, which picked up close to 1,000 state seats to give it control of two-thirds of state legislatures, as well as winning Congress by gaining 63 House seats and 10 Senate seats. But it wasn’t just Obama who poisoned Democrat fortunes. Activist judges are primarily responsible for the pickle the Democrat Party finds itself in with redistricting.

In the 1980s, Democrats redrew congressional districts with the express purpose of putting more blacks and Hispanics in Congress. This effort was clearly aimed to help the Democrat Party because these minority groups vote overwhelmingly Democrat. Districts were remade so that large numbers of minorities would virtually guarantee electing a minority to Congress. However, by grouping minorities into specific districts, other districts inevitably became more nonminority, in some cases overwhelmingly so. The result was that formerly competitive majority-minority districts ended up becoming Republican strongholds with few minority voters.

Democrats should not be puzzled that their high vote counts have not translated into widespread electoral victory. What is happening now is a consequence of their attempts going back 30 years to game the system in their favor. If Democrats want to fix it, they must look elsewhere, because the Supreme Court has decided, at least for this term, that they are on their own.


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