How the Supreme Court decides this case is a very big deal.
By:
LeRoy Goldman
Columnist
BlueRidgeNow Online
Times-News
October 15, 2017
Has gerrymandering met its match?
The Supreme Court recently heard oral arguments on a gerrymandering case out of Wisconsin, Gill v. Whitford. On first blush, it would appear this case is no big deal. At one level, it’s simply a matter of whether Republicans went too far drawing the district maps in 2011 for the Wisconsin Legislature. But how the court decides this case is a very big deal.
Not only might the decision break new ground with respect to cases involving partisan gerrymandering, it is also possible that it might eventually break new ground with respect to how the Supreme Court has ruled in cases involving racial gerrymandering. It’s important to know that the court has rigorously avoided deciding cases of partisan gerrymandering but has shown no reluctance to rule on gerrymandering cases involving race.
Although the court has made a clear dichotomy between partisan and racial gerrymandering, the two are deeply intertwined. Together they are responsible for significant and deleterious gerrymandering in virtually every state. Pervasive gerrymandering has brought the U.S. House of Representatives to its knees. In fact, most House seats are so gerrymandered that only one party can win them.
The Voting Rights Act of 1965 has been interpreted to require the creation of majority-minority congressional districts. Most of these many districts are represented by African-Americans or Hispanics, and virtually all of them are Democrats. The underlying premise for such districts was that it was the only way to circumvent racial discrimination. Happily that circumstance no longer obtains.
However, and surprisingly, the systematic creation of these majority-minority districts has enabled the Republicans to win more districts than would have otherwise been the case in many states, as minorities are packed into fewer districts. The net effect is that more and more seats are gerrymandered by both parties. Members from these districts, both Republicans and Democrats, have no incentive to reach across the aisle. What they do worry about is an even more extreme primary opponent.
Gerrymandering has turned democracy on its head. Instead of us picking our congressman, the members of Congress and their allies in the state legislatures draw the district maps so that they pick who gets to anoint them.
North Carolina is a perfect example of this undemocratic stranglehold. North Carolina is a swing state, evenly balanced between Democrats and Republicans. In 2016, Donald Trump carried it narrowly, by 3 percent, and Roy Cooper ousted Republican Gov. Pat McCrory by less than 1 percent. Yet the incumbent party won in every congressional district, and the margins of victory ranged from an insurmountable 56 percent to an eye-popping 69 percent. All 13 of the districts are the product of either partisan or racial gerrymandering.
If the Supreme Court were to find the map drawn by the Republicans in Wisconsin to be unconstitutional, the stage would be set to reverse partisan gerrymandering, and surprisingly it might revive efforts to strike down racial gerrymandering, too. Putting the matter right requires both steps.
At the oral arguments on Gill v. Whitford, all eyes were on Justice Anthony Kennedy. Unfortunately, that’s because the other eight justices appear to have closed minds on the issue. The four conservatives appear to have no interest in permitting the court to involve itself in partisan gerrymandering, while the four liberals appear to stand in opposition.
Justice Kennedy, however, based on an extension of his thinking in a similar case in 2004, Vieth v. Jubelirer, may be ready to join the liberals and enable the court to begin to curb partisan gerrymandering. That would be the first of the two necessary steps to begin stuffing the gerrymandering genie back in the bottle.
The necessary second step would have to await another case that would challenge the constitutionality of racial gerrymandering. The arrival of such a case is not far-fetched. About 20 years ago, the Supreme Court decided three cases alleging that North Carolina’s two majority-minority districts were an unconstitutional racial gerrymander driven by the requirements of the Voting Rights Act.
The challenge was brought by an improbable individual, Robinson Everett, a Duke law professor and a moderate Democrat. Everett deeply opposed discrimination against blacks, but he was just as deeply opposed to race-conscious policies that were designed to benefit one race over another. More importantly, he believed the majority-minority districts violated the Equal Protection Clause of the Constitution. Robinson lost 5-4 when then-Justice Sandra Day O’Connor, who had previously voted to end racial gerrymandering, switched her vote.
If Justice Kennedy has decided the time has come to join the liberals and turn the corner on partisan gerrymandering, it’s just possible that in the not-too-distant future he might join the conservatives and turn the corner on racial gerrymandering. Hopefully he’s a switch hitter!
LeRoy Goldman is a Flat Rock resident. Reach him at:
