The Supreme Court took up a question on Tuesday with profound implications for whether we have a democracy that runs on something resembling fair rules, and things look pretty shaky. Robert Barnes reports:
A familiar pattern repeated itself at the Supreme Court Tuesday as it again took up the subject of extreme partisan gerrymandering: Liberal justices saw it as a threat to democracy that requires action while conservatives wondered how courts could ever decide when a political process becomes too political.
In more than two hours of arguments, neither side seemed to believe there was much doubt that Republicans in North Carolina had pushed through a congressional redistricting plan that would keep their lopsided majority in what has become a purple state. Or that Democrats in Maryland had redrawn lines to eliminate one of the two districts in the blue state capable of electing a Republican.
But once again, conservative justices, who make up the majority on the court, wondered how the judiciary should intervene in what is an inherently political process, and what standard would guide how to determine excess.
The justices have been circling around a definitive decision on partisan gerrymandering for a couple of years now without settling the question. But this time the conservative majority may — just may — take the opportunity to tell state parties that if they have the opportunity, they can redistrict their opponents almost out of existence.
One of the distinctive things about these cases is that the facts aren't really in dispute. In both North Carolina and Maryland, the parties in control made no bones about the fact that they were using their control of redistricting to seize as much power as they possibly could and make it all but impossible for the other party to win more than a small number of seats, no matter how much support that party actually had.
But there is a difficult practical question: Even if almost anyone would look at North Carolina and Maryland and agree that their district maps are ridiculous, how can you determine where the line is between a permissible gerrymander and an impermissible one?
Political scientists and statisticians have come up with some techniques to do so, but in an earlier case, Chief Justice John G. Roberts Jr. referred to them all as “sociological gobbledygook,” which is another way of saying, “I haven’t bothered to understand how this works, so it must be nonsense.”
It must be said that the Maryland case notwithstanding, more often than not it’s Republicans who want to use their power to draw district lines to their advantage, while Democrats are much more likely to support the use of nonpartisan redistricting commissions. Which brings me to a question that came up during the arguments:
Justice Neil M. Gorsuch suggested that if there was a problem with extreme partisan gerrymandering, voters could take care of it, as they did in five states in the fall where citizen initiatives reigned in legislatures.
This is a reference to nonpartisan redistricting commissions put in place by voter initiatives to rein in partisan gerrymanders. Brett M. Kavanaugh made the same point during oral arguments, but let’s just say I suspect that they aren’t offering this argument in good faith, given the fact that they’re both among the most partisan justices on the court.
What’s more, the very fact that Democrats do favor these sorts of commissions could mean that the conservative majority may ultimately mark them for extinction.
Let me refer you to a case the court decided in 2015 called Arizona State Legislature v. Arizona Independent Redistricting Commission, before Gorsuch and Kavanaugh joined. By 5-4, that case upheld nonpartisan redistricting commissions established by voter initiative, of just the kind Gorsuch is referring to. The argument in opposition was that the Constitution says state legislatures determine district lines, and even if a state legislature gives voters the power to make laws with initiatives, the voters can’t use that power to establish an independent redistricting commission. Therefore, the commissions are unconstitutional and the power to draw districts must return to the legislature.
The four dissenters who made that argument were Roberts, Clarence Thomas, Samuel A. Alito Jr. and the late Antonin Scalia. While it’s possible that Gorsuch and Kavanaugh wouldn’t join with Roberts, Thomas and Alito to eliminate nonpartisan commissions passed by voters if the question came up again, I feel fairly confident that they would, for the simple reason that it’s to the advantage of the Republican Party that they do so.
Now maybe I'm being too cynical. But one can easily imagine the five conservatives making a two-stage effort that gives every state legislature — which in practice will mean mostly Republican-run legislatures — the green light to go nuts on partisan gerrymandering. First they rule in these cases that there's just no way for the courts to police partisan gerrymandering, then later on they strike down independent commissions established by voter initiative. Do that, and our elections will become even more skewed to the right.
Which is one more reason that the 2020 elections, which will be followed by another round of redistricting, are really, really important.