July 1, 2019

Supreme Court Rules on Gerrymandering and Census

Last Thursday, the Supreme Court “ruled that courts should stay out of disputes over partisan gerrymandering – that is, allegations that redistricting maps were drawn to favor one political party at another’s expense. The practice of partisan gerrymandering may be distasteful, the court concluded, but it is a problem that politicians and the political process, rather than courts, should solve.” SCOTUS Blog

The court also ruled on Thursday that the justification that the government offered at the time for including the citizenship question [on the census] was just a pretext [and sent the case back to the lower courts]. The decision left open the possibility that the Trump administration could try again to add the citizenship question, but the clock is ticking: The government has repeatedly told the justices, in urging them to resolve the case quickly, that it needs to finalize the census questionnaire by the end of [June].” SCOTUS Blog

See past issues

From the Left

The left is generally critical of the gerrymandering decision, and argues that the court should have ruled more explicitly against the citizenship question on the census.

“It enshrines the idea that politicians can choose their people rather than people choosing their politicians. And it will lead inevitably, consistent with partisan self-interest, to fewer competitive general elections, pushing political power at the congressional and state legislative level further toward the extremes -- and those bodies usually are the breeding ground for our senators, governors and presidents. Washington's inability to reason together to solve common problems is a result of this rot, and it's about to get far worse…

“The chief justice expressed faith in the fact that redistricting reforms are going forward on a state-by-state basis. But his faith belies the obvious fact that those reform efforts are almost always the result of ballot initiatives, in which concerned citizens have bypassed the state legislatures out of necessity. And even that's not always enough. In Missouri, voters approved a nonpartisan redistricting reform initiative in 2018, and afterward, Republican Gov. Mike Parson led an effort to repeal it, saying that the issue was too complicated for ‘the standard person’ to grasp. It's a story we see over and over: Incumbents don't want redistricting reform.”
John Avlon, CNN

Leaving this problem to be solved in the political process makes no sense: legislators who benefit from partisan gerrymandering are obviously not going to change the process. The court effectively put the fox in charge of the hen house. The majority decision is also anti-historical: the court can – and does – create legal standards, as it has in so many other areas, for when gerrymandering goes too far and violates the constitution. The court did exactly this in the 1960s, when it held that malapportionment of state legislatures violated the constitution. Prior to that, many state legislatures were badly malapportioned – there might be one district with 50,000 people and another with 250,000… The court should have dealt with partisan gerrymandering the same way.”
Erwin Chemerinsky, The Guardian

“Roberts doesn’t dispute the toxic evils of partisan gerrymandering. He simply suggests that it has always been with us, ignoring how granular voter data and sophisticated GIS mapping systems make today’s gerrymanders far more pernicious than any other time in our history… [He] suggests that voters have the power to undo even the most gerrymandered map, ignoring this entire decade of election results, nationwide, that have weighted political power toward the party that drew the maps, with almost zero exceptions… The court should be more honest. They don’t lack the tools. They simply refuse to use them to defend voting rights.”
David Daley, The Guardian

Counterpoint: “The Constitution confers voting rights and representational rights on individuals—not on political parties… What reformers were asking the Court to do, in effect, is give formal, constitutional sanction to parties, by requiring that districts be drawn with an eye not just to representing every vote fairly (that’s one person, one vote), but to representing every party fairly, too, according to its share of the total votes. One can argue for or against that change, but it is much more than a technical or mechanical reform. It is a big step toward parliamentary government—a change in the constitutional order, and one whose results are, again, entirely unforeseeable…  

“Even in principle, there is no neutral, nonpolitical, and noncontroversial way to draw district lines… If you think abortion has politicized judicial nominations, just wait until judges are in the business of approving congressional districts. Even more than today, every judicial nominee will be vetted for party loyalty. Judges will become even harder to confirm. Partisans and interest groups will redouble their all-out warfare over the courts. And politicians and pundits will redouble their court bashing… extreme gerrymandering needs to be curtailed, but not by politicizing the courts, rewiring the Constitution, and setting off all kinds of unpredictable consequences. It needs to be done the hard way: by changing the state and federal laws that govern redistricting.”
Jonathan Rauch, The Atlantic

Regarding the census, “the Trump administration came up with a preposterous lie to justify the change, that they needed it to properly enforce the Voting Rights Act. Emails obtained in a lawsuit and documents from a dead Republican consulant’s hard drive showed that the purpose of adding the question was to enhance the power of whites, Republicans, and white Republicans… [Chief Justice Roberts] remanded the issue back to the Department of Commerce (which oversees the Census) for further review. It was as though he said, ‘Please come up with a less ridiculous lie to justify this, and then we may let you move forward.’”
Paul Waldman and Greg Sargent, Washington Post

From the Right

The right supports the decision on partisan gerrymandering, but is disappointed that the court did not uphold the citizenship question on the census.

The right supports the decision on partisan gerrymandering, but is disappointed that the court did not uphold the citizenship question on the census.

“Whether we approve of the practice or not, both parties have used gerrymandering since the inception of the nation. The origins of the expression itself go back to 1812… As [Chief Justice] Roberts noted, not even the Founders could provide a satisfactory remedy to the problem… [but] nowhere did the Framers suggest that unelected judges should usurp the power of the legislature and just do the work on their own.”
David Harsanyi, New York Post

“One of the hardest tasks of a judge is not to take action when faced with a serious problem the law doesn’t address… there are many problems that are not appropriate for judicial review and that our Constitution commits to the political process… For over 200 years, legislators have been tasked with drawing district lines, and there have been partisan complaints for just as long. Some states have addressed the issue by passing their own laws or constitutional amendments regulating how districts are drawn, which is an effective practical solution. But the Supreme Court cannot invent a standard out of whole cloth to govern redistricting questions – that is a task committed by the Constitution to the state and federal legislatures…

“While Courts do have a constitutional role in ensuring elections are free of racial discrimination, the same can’t be said of political jockeying.  Nothing in the Constitution forbids political and even partisan forces from playing a role in elections; indeed they are virtually unavoidable. By trying to police the political process, courts will only be drawn into it.”
Carrie Severino, Fox News

“Democrats have used gerrymandering as a weapon against Republicans for decades. The only reason Democrats are screaming now is because they lost so badly in 2010, giving Republicans the ability to draw congressional lines for the past decade. Prior to 2010, Democrats controlled most state legislatures and controlled Congress until the mid-'90s. As the South and Midwest slipped away, so to did their abilities to draw lines. Then, suddenly, gerrymandering became a problem… Instead of complaining about the rules we have had for 200 years — rules under which Democrats were winning just eight years ago — perhaps they should try winning instead.”
Erick Erickson, Daily Wire

Furthermore, “computer modeling has suggested that most of the Republican advantage in congressional districts can be explained by residential patterns (i.e., Democratic concentration in urban areas) rather than partisan mapmaking. To the extent that progressive critics wanted the courts to get involved not only in preventing partisan gerrymandering but in drawing lines to help Democrats out of a natural disadvantage, it is easy to see why the justices were hesitant to get into that business…

The reality is that the observable impact of partisan gerrymanders on partisan control of the House of Representatives is fairly modest, prone to breaking down over time, and no barrier to frequent changes in control of the chamber. It is not a problem requiring radical solutions, and it is one we can work out without involving the courts.”
Dan McLaughlin, National Review

Regarding the census, “the administration’s process was chaotic and unprofessional, leaving behind a trail of evidence that the government’s stated justification for the citizenship question (that it would aid enforcement of the Voting Rights Act) may have been a pretext… But as Clarence Thomas and Samuel Alito spelled out in separate opinions, it is not the Court’s job to play psychoanalyst, and the decision paves the way for courts to scrutinize policymakers’ motives much more broadly…  The census has asked about citizenship numerous times stretching back about two centuries. The Court’s job was to make sure the administration had an adequate explanation for adding the question back in — as Roberts conceded it did — not to look behind that explanation for ulterior motives.”
The Editors, National Review

“As the Supreme Court noted, all but one census taken from 1820 to 2000 included a question about citizenship or place of birth for at least some portion of the population. And since 2000, a citizenship question has been on the American Community Survey – a mini-census sent out every year to a large sample of American households… The question now is whether Justice Department lawyers can produce evidence needed to convince the lower court to approve the citizenship question before time runs out, or whether the census can be postponed to give the administration more time.”
Hans von Spakovsky, Fox News

“If the Secretary can muster up an alternate justification--for example, the states are interested in using citizen data to draw their maps--then the census question will survive.”
Josh Blackman, Twitter

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