Thursday, March 28, 2019

Census Controversy and Gerrymandering before the Supreme Court - Part 2: Gerrymandering

There are two interesting and very important questions before the Supreme Court this term relating to congressional representation.   One case is about apportionment – the way in which the federal government allocates the 435 Congressional Districts to the states.  The other is about redistricting – the way in which districts are drawn within and by states.  As they are both complex issues this will be a two series blog, Part 1: Apportionment and Part 2: Gerrymandering.   Apportionment is the process of allocating congressional districts after the decennial census.  Gerrymandering is the manipulation of congressional districts within state boundaries for political advantage.

These are complex issues for the Supreme Court that float in a gray area between politics and clear-cut law.  The issues may seem arcane to many, but they are of major consequence for the republic relating to representation, power, and resource allocation.  Both issues are worthy of considerable citizen attention.


In Part 1: Apportionment, the Constitutional requirement was described to conduct a census every ten years from which the 435 Congressional Districts are reapportioned to the states.  A further mandate that each of those districts have roughly the same numbers represented was also established.   Beyond those broad goal posts the responsibility for creating the districts within states is left almost entirely to the states themselves.

Article 1, Section 4 of the Constitution says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature.”  It further provides a regulating authority stating, “the Congress may at any time by Law make or alter such Regulations.”

Placing the state legislatures in charge of creating districts within their borders makes the process a political one.  As in all political activities advantage is sought by competing interested parties.  An environment ripe for abuse is created. 

In 1812, the Governor of Massachusetts, Governor Eldridge Gerry and his party controlled the Massachusetts legislature.  They created a congressional district to favor their party.  A political cartoon at the time depicted it as a dragon and many said it took the shape of a salamander.  Thus, the combination of GERRY and salaMANDER to create the word GERRYMANDER we commonly use today to describe the extreme manipulation of districts for political advantage.

There are three ways in which legislators have manipulated districts for advantage:  1) Partisan advantage of a party, 2) incumbent advantage, and 3) racial advantage.  There are a number of tactics used to include:  1) Cracking is the spreading of votes across districts, 2) Packing is the concentrating of voters of one type into a district, 3) Hijacking forces representatives of two districts to combat each other in a single district with a calculated outcome, and 4) Kidnapping changes a district to place the incumbent outside of a district he represents.

The judicial branch has played a limited role in regulating this process as it sees it as a political process.  Rightfully so, as the Constitution clearly sets it out that way.   However, the courts have engaged to require state districts have equal numbers of people represented (Wesberry v. Sanders, 1964).  In 1993 the Supreme Court held that redistricting based on race must adhere to strict scrutiny under the Equal Protection clause of the Constitution (Shaw v. Reno).

The Constitution gives Congress the role to regulate the process.  The Congress has included regulatory power over districting in major legislation such as the Voting Rights Act of 1965.   Section 2 of the Act prohibits “voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups.” 

In Massachusetts, the former Speaker of the House of Representatives, Thomas Finneran, was convicted in 2007 of obstruction of justice for his role in a case where the Massachusetts legislature had constructed districts intended to favor white incumbents.

Beyond the courts hearing and ruling on cases in violation of racial Gerrymandering their role has been limited in the past.  More recently cases are being brought contesting other areas of redistricting by state legislatures involving partisan party advantage.
The Supreme Court heard testimony on two cases of Gerrymandering this week.  Both are about the manner in which Congressional Districts are created by States.   The Supreme Court has a difficult task.  They see the creation of districts as largely a political act they may wish to avoid.  However, they have in the past tempered extremes in rulings.   The Court will eventually render a decision, but they will not solve the problem and there may well not be a solution to this inherently political process.

In one case (Rucho v. Common Cause) a lower court ruling is challenged that North Carolina violated the Equal Protection Clause, First Amendment, and the Election Clauses of Article 1 when it established new districts in 2016.  In the second case, (Lamone v. Benisek), the Court must consider a Maryland District Court’s decision to strike down a Maryland congressional map.

A rash of Gerrymander legal actions have been filed in the past few years.  This is no accident.  In anticipation of the upcoming decennial census that will reapportion states and instigate redistricting within states the stake holders are trying to set up a most favorable environment.

There are currently at least 15 Gerrymander cases in courts in 13 states.   About half allege Racial Gerrymandering and half Partisan Gerrymandering.   All but one of the cases were brought by state Democrats, the NAACP, or a group created by former President Barrack Obama and former Attorney General Eric Holder.   In one case in Maryland, currently before the Supreme Court, Republicans initiated the action.

Obama and Holder created the National Democratic Redistricting Committee as a “strategic hub for a comprehensive redistricting strategy.”  They blame much of the Republican success of the past decade on redistricting advantages in 2010 and their goal is to turn the tables in 2020.   Make no mistake, this is a partisan activity to gain advantage, not to create a fairer system of representation.  

Were it an effort to seek fairness one might anticipate a suit brought in Massachusetts where 40% of voters did not vote for Hillary Clinton yet the state has an all Democratic legislative delegation and   its 4th Congressional District has harkened back to the original salamander of 1812.

Opinion:   What will the Supreme Court do with the two cases currently before it?  I believe the Court is going to find a way to take itself and the federal courts out of redistricting as much as possible and return responsibility to the political branch (Congress) as the Constitution intended. 
Redistricting is acknowledged in the Constitution as a political act.   There is no formula or algorithm that can solve the problem.   The Court knows this.  If it involves itself further the reality will be a flood of lawsuits on Partisan Gerrymandering in the federal courts.

For example, if the Court engages itself further in these political controversies one could imagine the Republicans will do the same as Obama and Holder and immediately begin filing suits in “Blue” states.  After all, the same arguments brought by Obama and Holder apply to Democratically controlled states. 

A pandora’s box will be opened if the Court goes deeper down this rabbit hole.  I think it will choose not to go there and put the onus on Congress and the political process to temper extremes in redistricting.

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