DANIEL VAUGHAN: Supreme Court gives power back to the people in gerrymandering decision

June 28, 2019

The outrage from the legal left over the Supreme Court’s decision to remove itself from partisan gerrymandering cases — because such cases are political questions — knows no end in its hyperbole. If you follow their bizarre logic, sending political power back to the people and states means democracy itself is ending.

Leading the charge is election law professor and expert Rick Hasen, who claimed in The New York Times that the court’s decision to get out of political issues over elections makes the court more partisan than ever before.

Justin Levitt, also an election law professor at Loyola Law School, refused to be outdone, saying, “We are in Mad Max territory now; there are no rules.” He described a world where “you’ll see more legislators in more states [where there is unilateral control] taking up the mantle of extreme partisan aggression against people who disagree with them.”

Greg Sargent wrote for The Washington Post that conservatives on the Supreme Court had just “body-slammed democracy.”

The media took their cues from the liberal dissenting wing, written by Obama appointee Elena Kagen, who called the decision “tragic,” and asked readers: “Is this how American democracy is supposed to work?”

In America, yes. Political gerrymandering isn’t some bug that the court system is supposed to defeat — it’s a feature. And not only is it a feature — it was expected by the Founders to be a part of the political process.

The case in question, Rucho v. Common Cause, brought together two cases, one out of North Carolina, where Democrats accused Republicans of extreme gerrymandering, and another out of Maryland, where Republicans accused Democrats of extreme gerrymandering.

In other words, these are political parties arguing about the rules they’ve set for themselves in building districts. This issue is nothing new.

As Chief Justice Roberts noted in the majority opinion, gerrymandering predates the Constitution: “During the very first congressional elections, George Washington and his Federalist allies accused Patrick Henry of trying to gerrymander Virginia’s districts against their candidates — in particular James Madison, who ultimately prevailed over fellow future President James Monroe.”

If the Founders wanted to remove gerrymandering from the equation in the constitutional convention, they could have done it then and there. But they didn’t. In fact, as I’ve argued before, George Washington argued for even more House districts than we have today by capping each House district to 30,000 people.

The Founders did not restrict factions — they created even more.

So when people like Kagen ask, is this how American democracy is supposed to work? The answer is a resounding, “Yes!”

Is gerrymandering fair? Of course not. It allows parties to expand their control in places they have majorities to the fullest extent of the population. But we aren’t a single-party country, and both parties have ample opportunity to flex their muscle across the country.

The point is this: as Roberts says, the political process was the avenue to deal with problems regarding gerrymandering.

“The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress,” the chief justice wrote. “At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing.”

If the only channel to fix a problem is through the legislative process, then that means that the federal court system must not usurp power and step in. This solution is known as the political question doctrine, which says that if the only solution for a problem comes from the executive or legislative branches, the courts must stay out.

That doesn’t mean the court system has no say in this issue; there are still legal issues. Roberts points out that the court still has to ensure laws upholding one person, one vote, and laws banning gerrymandering on racial grounds are still fair play.

But while race and voter protection laws are one thing, determining political ill-content is much harder. Roberts writes:

To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. The “central problem” is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is “determining when political gerrymandering has gone too far.”

Sure, that district you drew is Democratic, but is it too Democratic? Or is it too Republican? There are no standards the Supreme Court can apply here, because the answer of whether something is “too partisan” is one left up to the voters.

And we should note here, the Democrats who are complaining that gerrymandering benefits Republicans just won back the House of Representatives. And the reason they were out of power before is that they rammed Obamacare through the legislative system against the voter’s will. Their loss of control had nothing to do with gerrymandering.

For all the talk about how lousy gerrymandering is, both parties have routinely swung in and out of power with relative ease over the years. But if gerrymandering is a problem, this decision does not prevent states from dealing with it. This decision encourages Congress and the states to take an active role in the process.

Democrats are mad today because they wanted the nine judges to jump into the electoral process and judge the partisan lean of every district in the country. But it’s absurd to claim the democracy is body-slammed when the Supreme Court is tacitly giving power back to those people. Usurping power and having nine unelected judges decide district lines is body-slamming democracy, not the other way around.

The court correctly restrained its power and gave support to a genuinely federalist system, and that is a rare win in our world of ever-increasing government power.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.