Recently, SCOTUS brought forth their view on the judiciary and political gerrymandering cases through their ruling on Rucho v. Common Cause, the North Carolina case, and Lamone v. Benisek, the Maryland case. This 5-4 decision, decided along ideological lines within the court, left the liberal wing with another loss – and a sense of outrage. Here’s Justice Kagan’s dissent:
For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.
And checking them is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority’s own benchmarks. They do not require—indeed, they do not permit—courts to rely on their own ideas of electoral fairness, whether proportional representation or any other. And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process. But yes, the standards used here do allow—as well they should—judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms. In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.
Justice Kagan’s dissent is heartfelt, powerfully written – and symptomatic of her, and my, generation’s sins.
First of all, it’s characteristic of the Instant Gratification Generation. Fix this problem now, she cries! This failure to consider how the future may render this problem moot, how the festering of this manifest injustice may be more advantageous, in the long run, than its immediate cauterization, is characteristic of those I’ve grown up with in my generation.
But that leads to the second: is there a judicial solution? Hey, I’ve hardly paid attention, while Justice Kagan is one of the top professionals in her field. Who am I to comment? Maybe I’m just someone with too many opinions.
But I can’t help but notice that all the suggested approaches to the political gerrymandering problem are inevitably encumbered with one problem that they haven’t addressed, and that renders any analogies with race-based gerrymandering solutions invalid: voters can change their political spots. A voter cannot change their ethnic heritage, but when it comes to politics, they can change their vote.
This means that today’s solution is potentially tomorrow’s problem. Sure, voters of important ethnicities can change their geographical location, thus invalidating redrawn political maps to the befuddlement of the judiciary line-drawers, but it’s more likely that voters will change their electoral choice than move to a new home. I say this not just because it’s convenient to my argument, but because there’s a real difference between the two activities. It’s quite rare that a group, en masse, chooses to move. Sure, a river changing its course, or a shattering earthquake can cause a group to move, but those motivations are are exceedingly rare. The key realization is that, generally, people move for reasons particular to them. Sure, statistically, you can group them and study them – but look at a city of people selling their homes and moving and you’ll find a multitude of reasons, and most of them are non-political.
But politics and voting doesn’t require changing residence or even party registration. All you have to do is register to vote, and then do it – with a secret ballot, no less. Today’s Republican town could become tomorrow’s Democratic town – especially since the wildcard, the independents, change their spots quite easily.
But my reader may complain that most seats are safe, despite the swings we’ve seen in voter preferences in recently years. I would point at those recent oscillations, though, and notice that the key realization here is that the political activities of those in charge will impact those who live in that area, and while the impacts will be disparate in magnitude and in whether they are positive or negative, that is only two variables, unlike those who are changing residence. The probability that a mass of voters might change their votes due to the activities of those in political power is far higher than for those of a given ethnicity moving en masse.
Given a political organization of sufficient repugnance, whether it be from incompetence, abuse, or ideological zealotry, those living in that area can, as a group, uncoordinated or not, change their vote at the next election from favoring to disfavoring that political organization.
This brings me to my final point. Many people, if they have any concerns, interests, or agendas in which government can be involved, keep an eye on the political leaders. Even those considered reliable members of a party’s base keep an eye out, usually for ideological blasphemy by their leaders. These signals may be interpreted as indicative of a particular person, but, of course, they can also be taken as a whole to act as intelligence about the entire organization. This is simply how we’re put together; it’s a social survival mechanism, akin to Is that lion too full to chase me, or had I better take off running now?
But what if SCOTUS had instead found for the plaintiffs?
Here’s what happens: this signal, a signal of arrogance, pride, disdain for the voter, and perhaps worse, is lost to that key audience, the voter. Sure, it’s damaging the polity that their activities continue unabated, but those activities are also a signal of the attitudes of that organization towards the voter: that of treating them as cattle, their votes as commodities, as a group to be led about by their noses or excluded. But at least we know and can do something about it sooner rather than later. Even for a relatively high-profile cause such as gerrymandering, SCOTUS decisions are often obscure and unknown; if they had found for the plaintiffs, the lines would have been redrawn, and even with great fanfare, the resultant public consciousness of it would have dissipated within a week.
But finding for the defendants means this signal continues to impact the voters, and it also encourages that political organization to continue activities which are reprehensible. That makes their unworthiness even more obvious.
We may find that this decision by the conservative wing of the Court will actually damage the Republicans, in the end, as the independents and moderate Republicans vote out the hard-line Republicans who’ll do anything to win. They’ll be voted out because doing anything to win is not the American thing to do.
So don’t entirely despair at this decision. If they had found for the plaintiffs, they may have embraced a deeply flawed solution with little input from the public, and little chance for improvement. Now the problem returns, not to the political sphere, but to the public sphere, either formally, or motivated by the misdeeds of the miscreants, regardless of their political stripe.
