“Is this how democracy is supposed to work?”
That pointed question comes from Justice Elena Kagan’s dissent in Rucho v. Common Cause, the partisan gerrymandering decision the Supreme Court just handed down.
There are, unfortunately, two answers to that question. The first is “Of course not.” And the second, implicit in the decision itself and the entire Republican war on voting rights, is this: “Democracy? Who cares about democracy?”
The court also gave the administration what looks like a setback in a separate case, on their attempt to add a citizenship question to the Census. But don’t be so sure that won’t ultimately prove a win for Republicans, too.
Let’s start with gerrymandering. In reviewing extreme gerrymanders in North Carolina and Maryland, Chief Justice John Roberts, writing for the five conservatives, ruled that there is literally no gerrymander too partisan for the federal courts to be allowed to review it:
We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.
Writing for the four liberals, Justice Kagan was outraged:
Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.
The reality, as Roberts well knows, is that while there are some Democratic states that have gerrymandered aggressively, Republicans have been far more eager to do so, and at the moment they control more state legislatures. The court just told them to go nuts.
You might be tempted to say, “That’s bad, but at least the Trump administration lost on the Census case.” But don’t be too quick to assume justice was done there either.
The Census case
In that case, the question is whether the administration can add a question on citizenship to the 2020 Census, which will inevitably lead immigrants (legal or not) to be less likely to answer, leading their communities to be undercounted and thus draining federal funds and political power away from them. Indeed, that was precisely the point.
The trouble was that 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.
So Chief Justice Roberts, joined in parts by various configurations of liberals and conservatives, ruled that the administration’s rationale was a pretext. What he did not do, however, was say that the citizenship question may not be added to the Census.
Instead, he 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.” Rick Hasen explains what may happen now:
But whatever the reason, the agency will likely act quickly to rehabilitate its pretexual ruling. The agency has said that printing [of Census forms] had to begin in July, but plaintiffs challenging inclusion of the question have long claimed the real deadline is October. The government will surely concede now that October is doable. The agency could come back with new reasons, and the part of Roberts’ opinion joined by the conservatives which recognizes the broad agency discretion to include the question for non-pretextual reasons will be front and center.
Nothing is guaranteed, of course. Roberts may decide to just let the citizenship question go; we won’t know for a few months. What we do know is that the Republican war on democracy is going swimmingly: gerrymandering, voter purges, voter ID laws, limits on early voting, and in Congress, a Republican stonewall against any measures securing our elections.
More is coming
There are plenty of other ways that the Supreme Court can, and probably will, rule against pro-democracy reforms in coming years.
Take gerrymandering. Multiple states have responded to partisan gerrymanders with their own measures, installing through popular referendum or legislation various various types of redistricting commission designed to weaken the direct influence of politicians over district lines. Several just did this in the 2018 elections.
But how long will those commissions survive this Supreme Court?
In a 2015 case, four conservative justices argued that commissions created by popular initiative are unconstitutional, because the Constitution requires that the power to draw lines is confined to state legislatures. In that case, Anthony Kennedy (who’d been more open to policing gerrymandering) sided against the conservatives.
But now Kennedy is gone. If another such case comes up, the five conservative justices -- who just declared that putting limits on partisan gerrymandering is beyond the reach of the court -- could nullify some or all types of commissions. That would debilitate a tool for fighting back against gerrymanders.
Or take voter suppression. It’s plausible that one or more particularly egregious state legislative efforts might soon be implemented and eventually challenged, making their way to the Supreme Court. Hasen emails us on what might come next:
Given how the Court is willing to ignore bad racial and partisan intent, as illustrated by the holdings of cases like Rucho, I expect things will get worse and the Court will find a number of these repressive measures constitutional and not a violation of the Voting Rights Act.
The result will be that Democrats and others representing poor and minority voters will have to put considerable campaign efforts not into campaigning or getting out the vote, but just trying to ensure that otherwise eligible voters will be able to exercise the franchise to which they are legally entitled.
Democrats must win back more ground in the states
The 2018 elections had started to make it look like this state of affairs is turning around. Democrats regained a great deal of ground on the level of the states -- and passed some pro-democracy reforms in them as well. But also, the Democratic Party has embraced a much more hard-headed and realistic acceptance of the need to wage the war for democracy everywhere.
As part of this, Democrats (who have their own sordid history of gerrymandering) have been cleaning up their own act. When New Jersey Democrats did their own gerrymander, the weight of the national progressive movement crushed the effort. This, plus the House Democratic passage of a far reaching set of pro-democracy proposals, has demonstrated a new party-wide commitment to nuts-and-bolts political reform, for self-interested purposes, yes, but also as part of a genuine pro-democracy ethos.
The latest setbacks are sobering. If nothing else, they are a reminder that Democrats and reformers need to redouble their commitment to this war over democracy -- and to winning back as much ground on the level of the states as possible.
To return to Justice Kagan’s question, this is most assuredly not how democracy is supposed to work. But it’s how it works now.