Supreme Court On Partisan Gerrymandering – The Supreme Court ruled Thursday that federal courts must stay out of disputes over challenges to partisan gerrymandering.
Supreme Court On Partisan Gerrymandering:
Chief Justice John Roberts wrote the 5-4 decision along ideological lines for the conservative majority.
Chief Justice John Roberts wrote, “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”
“Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”
JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, dissenting. 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.
Partisan Gerrymandering, The Practice In Which The Party That Regulates The State Legislature Draws Voting Maps To Help Elect Its Candidates.
Justice Elena Kagan read a scathing dissent from the bench for the four liberals.
“Gerrymandering is, as so many Justices have emphasized before, anti-democratic in the most profound sense,” Justice Elena Kagan wrote.
“Of all times to abandon the Court’s duty to declare the law, this was not the one,” Kagan said. “The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.”
“The only way to understand the majority’s opinion,” she wrote, “is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights — in the face of escalating partisan manipulation whose compatibility with this nation’s values and law no one defends — the majority declines to provide any remedy. For the first time in this nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.”
One case decided Thursday, from North Carolina, concerned a plan drawn by Republican state lawmakers in 2016 that included a criterion called “partisan advantage.”
“If left unchecked, gerrymanders like the ones here may irreparably damage our system of government,” she wrote. “Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
Kagan further added, “The majority’s idea instead seems to be that if we have lived with partisan gerrymanders so long, we will survive.”
“There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral,” Roberts wrote. “Any judicial decision on what is ‘fair’ in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal courts.”
Justice Kagan Dissent:
We could have, and we should have The gerrymanders here—and they are typical of many—violated the constitutional rights of many hundreds of thousands of American citizens. Those voters (Republicans in the one case, Democrats in the other) did not have an equal opportunity to participate in the political process. Their votes counted for
far less than they should have because of their partisan affiliation. When faced with such constitutional wrongs, courts must intervene: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That
is what the courts below did. Their decisions are worth a read. They (and others that have recently remedied similar violations) are detailed, thorough, painstaking. They evaluated with immense care the factual evidence and legal arguments the parties presented. They used neutral and manageable and strict standards. They had not a shred of politics about them. Contra the majority, this was law. That is not to deny, of course, that these cases have
great political consequence. They do. Among the amicus briefs here is one from a bipartisan group of current and former Members of the House of Representatives. They describe all the ways partisan gerrymandering harms our political system—what they call “a cascade of negative results.” Brief as Amicus Curiae 5. These artificially drawn districts shift influence from swing voters to partybase voters who participate in primaries; make bipartisanship and pragmatic compromise politically difficult or impossible; and drive voters away from an ever more dysfunctional political process. Last year, we heard much the same from current and former state legislators. In their view, partisan gerrymandering has “sounded the death-knell of bipartisanship,” creating a legislative environment that is “toxic” and “tribal.” Brief as Amicus Curiae in Gill v. Whitford, O. T. 2016, No. 16–1161, pp. 6, 25. Gerrymandering, in short, helps create
the polarized political system so many Americans loathe. And gerrymandering is, as so many Justices have emphasized before, anti-democratic in the most profound sense. In our government, “all political power flows from the people.” Arizona State Legislature, And that means, as Alexander Hamilton once said, “that the people should choose whom they please to govern them.” 2 Debates on the Constitution 257 (J. Elliot ed. 1891). But in Maryland and North Carolina they cannot do so. In Maryland, election in and election out, there are 7 Democrats and 1 Republican in the congressional delegation. In North Carolina, however the political winds blow, there are 10 Republicans and 3 Democrats. Is it conceivable that someday voters will be able to break out of that prefabricated box? Sure. But everything possible has been done to make that hard. To create a world in which power does not flow from the people because they do not choose their governors.
Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.