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Monday, November 2, 2015

Stuffing the gerrymandering geenie back in the bottle



Stuffing the gerrymandering geenie back in the bottle


By
LeRoy Goldman
Guest Columnist
Citizen-Times
November 2, 2015


The stars were aligned for the GOP in the 2010 election when opposition to Obamacare enabled the Republicans to take control of the House of Representatives and also win control of many state legislatures and Governor's Mansions. All of this occurred as new census data mandated the redrawing of congressional district boundaries. Predictably the Republicans seized the opportunity to indulge themselves in a gerrymandering orgy.

But gerrymandering dates back to the dawn of the 19th century. It has become as American as apple pie, and has been practiced with increasing vengeance by both political parties. Carried to its current extreme, it is a bipartisan evil that has contributed significantly to the stalemate in the House of Representatives. While it will never be possible to expect politicians to relinquish the opportunity to draw district lines in ways that advantage themselves, gerrymandering has now turned democracy upside down. Instead of voters choosing a Congressman to represent them, gerrymandering has enabled incumbent Congressmen to choose the voters who will assure their reelection. At the heart of this undemocratic abuse lies the Majority-Minority district.

These districts are ones in which a majority of its residents are racial or ethnic minorities. Most all of them are represented by African-Americans or Hispanics. The vast majority are Democrats. In 1982 there were 35 such districts. By 2014 the number had skyrocketed to 118.

But the explosive growth of these utterly safe Democratic districts has had a counter intuitive, boomerang effect. Remarkably they have advantaged the Republicans and helped them maintain control of the House. The GOP figured out that packing districts with minorities who vote overwhelmingly Democratic made it possible for them to win in many more neighboring districts. Thus the GOP took control of the House in 1994 for the first time in 40 years and has steadily strengthened it grip ever since.

The Democrats suffer in silence for fear that challenging the necessity for such districts will subject them to cries of racism by the minority groups who benefit from these sinecures. The GOP is similarly silent, gleefully knowing they have become the unintended beneficiaries of reverse racism.

And there you have it. Political correctness, reverse racism, and both political party's obsession with maintaining partisan advantage and exacting retribution have combined to emasculate the House of Representatives. Any realistic hope of reform must be external to those who have been responsible for and who perpetuate this mess.
The courts, ultimately the Supreme Court, could put this matter right. In fact the Supreme Court came within a single vote of doing just that in 2001. Let's look at how breathtakingly close it came to rectifying this problem.

In two landmark cases, Baker v. Carr in 1962 and Reynolds v. Sims in 1964 the Supreme Court thrust the judiciary into a determination of the constitutionality of a state's voting districts. In his opinion in Baker v. Carr Justice William O. Douglas said, “if a voter no longer has the constitutional value of his right to vote and the legislative branch fails to take appropriate restorative action, the doors of the court must be open to him”.


Throughout the 1990s Duke Law Professor Robinson Everett, a Liberal Democrat, was the driving force behind three law suits that were decided by the Supreme Court that challenged North Carolina's two Majority-Minority congressional districts as unconstitutional racial gerrymanders. Everett believed these districts violated the Constitution's Equal Protection Clause. The Supreme Court in 5-4 decisions agreed with Everett in the first two cases, Shaw v. Reno in 1993 and Shaw v. Hunt in 1996. But Everett lost the third and decisive case, Easley v. Cromartie, in 2001 when Justice Sandra Day O'Connor switched her vote.

Justice O'Connor's volte-face was especially disappointing given the fact that in writing for the majority in one of the two earlier cases she had said, “a reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographic and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid”.

Robinson Everett passed away in 2009. But his legacy lives, and, more importantly, a Supreme Court decision overturning racial gerrymanders is all the more urgent. A new case brought by a lawyer intent upon completing what Judge Everett began is the way to put the evil gerrymandering genie back in the bottle.

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