This Supreme Court Case Could Make or Break the Democrats
WASHINGTON-The latest mini-victory in the war against voter suppression came on Thursday afternoon, when a three-judge panel in a federal court eviscerated the 2011 redistricting plan that came out of the Texas state legislature. This is the third time since the beginning of March that Texas legislation dealing with the franchise has been found to be unconstitutional and/or in violation of what's left of the Voting Rights Act.
The court found the plan in violation of both Section II of the Voting Rights Act and the 14th Amendment to the Constitution. It deliberately diluted the votes of minority citizens in eight counties. It found evidence of racial gerrymandering in Bexar County. It gave the plan a thoroughgoing thrashing. From The Dallas Morning News:
Last month, the same court found that the state's congressional maps were drawn with intent to discriminate against minority voters and invalidated three congressional districts. And last week, a federal judge ruled that the state's voter ID law was written with intent to discriminate. "The evidence of the mapdrawing process supports the conclusion that mapdrawers were motivated in part by an intent to dilute minority voting strength," U.S. District Judges Xavier Rodriguez and Orlando Garcia wrote in the 171-page ruling. "Discussions among mapdrawers demonstrated a hostility to creating any new minority districts as those were seen to be a loss of Republican seats, despite the massive minority population growth statewide."
But what about the Day of Jubilee? Didn't John Roberts declare the Day of Jubilee back in 2013?
The panel's rulings will be discussed at a status conference set for next Thursday in San Antonio. At that time, the parties will decide whether the case still needs to go to trial. If it does, both sides will be expected to lay out a timeline to finish the trial and appeal before the 2018 elections. Plaintiffs in the case have called on the court to block the use of the state's electoral maps for that election and draw new ones. The plaintiffs also could ask the court to punish the state by demanding it get federal permission before making any changes to election laws. Texas was previously on what is known as the "pre-clearance" list which required that states with a history of discrimination get federal approval before making changes. But a 2013 U.S. Supreme Court ruling took Texas and other states off that list. If a district court moved in that direction, Texas would be the first state to be put back on the list since the ruling.
These maneuverings out in the states are incredibly important, not only as regards the 2018 and 2020 national elections, but also as regards the current Republican domination in state legislatures and in those benighted precincts that hold to the Second Worst Idea In American Politics, an elected judiciary. One of those places is Wisconsin, where another crazy Republican-drawn map is headed to the U.S. Supreme Court to be judged. Via The New York Times:
A bipartisan group of voting rights advocates says the lower house of the Wisconsin Legislature, the State Assembly, was gerrymandered by its Republican majority before the 2012 election - so artfully, in fact, that Democrats won a third fewer Assembly seats than Republicans despite prevailing in the popular vote. In November, in a 2-to-1 ruling, a panel of federal judges agreed. Now the Wisconsin case is headed to a Supreme Court that has repeatedly said that extreme partisan gerrymanders are unconstitutional, but has never found a way to decide which ones cross the line.
Gerrymandering has always been contentious. But the extraordinary success of a Republican strategy to control redistricting by capturing majorities in state legislatures in the 2010 elections has lent urgency to the debate. Today, at a time of hyperpartisan politics and computer technology that can measure political leanings almost house by house, Republicans control legislatures in 33 states, 25 with Republican governors. They have unfettered command over the boundaries of at least 204 congressional districts - amounting to nearly half the 435-seat House. In contrast, Democrats' share of state legislature seats has shrunk to a level not seen since Warren G. Harding was president, according to the National Conference of State Legislatures. And in recent years, their numbers in the House of Representatives have hovered near levels last seen during the Truman administration. Partly because of the Voting Rights Act, gerrymanders based on race are flatly illegal, but ones based on partisan intent remain in limbo.
And this is how it works.
John Steinbrink, another Democrat, had represented southeastern Wisconsin in the Assembly since 1996, supported by a Democratic base in Kenosha, six miles from where he farms corn and soybeans. After redistricting, Kenosha became a safe Democratic district, and Mr. Steinbrink was exiled to an adjoining district populated by rural conservatives. In 2012, his Republican opponent won with 55 percent of the vote. "I could have moved to Kenosha" and sought re-election there, he said. "But I don't know how you farm in the city."
And, as is the case in all fields, from baseball to the distribution of porn, modern technology and analytics have proved a boon to the people who finagle the electoral maps out in the states.
The Wisconsin case underscores how modern gerrymanders, using computers and political and behavioral data, have become increasingly effective. Measured by the efficiency gap, four of the five most partisan state legislature maps in the last 45 years were drawn after 2010, said Nicholas O. Stephanopoulos, a University of Chicago law professor and lawyer for the plaintiffs. In the House of Representatives, eight of the 10 most partisan maps were created after 2010, including Wisconsin's and two in North Carolina.
Of course, the case will drop onto a Supreme Court now skating at full-strength, with the installation of Justice Neil Gorsuch in the seat that rightly belongs to Merrick Garland. Gorsuch's friendship with the architects of voter suppression is distressing enough, but, as Rick Hasen points out, Gorsuch's legal record is fairly mute on the issue of gerrymandering.
Once again, then, it may come down to which way The Weathervane swings. From the Times:
One participant in the 2004 decision, Justice Anthony M. Kennedy, may prove the fulcrum in the court's deliberations. In that case, he resisted calling gerrymanders nonjusticiable, holding out hope that the court would find a way to help resolve problems like extreme gerrymanders that political leaders were unable or unwilling to address. "The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself," he wrote then.
Back in 1812, when Massachusetts Governor Elbridge Gerry helped produce the map that made his name immortal in American politics, he scooted out of the governorship shortly thereafter, becoming James Madison's vice-president, but dying in office shortly after assuming it. His gravestone bears the message: "It is the duty of every man, though he may have but one day to live, to devote that day to the good of his country."
But, for the love of god, keep an eye on the people who run it.
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