Gerrymandering and the Supreme Court

By JOEL D. JOSEPH

The US Supreme Court recently ruled that it would not decide whether gerrymandering was constitutional or not, and left it to the states to decide. This ruling is contrary to more than 200 years of American jurisprudence. In the landmark ruling of Marbury v. Madison (1803), the Supreme Court ruled it had a duty to say what the law is and to rule on constitutional issues. The Supreme Court has reaffirmed this principle and applied it to elections and the rights of voters to be counted equally. In Baker v. Carr (1962), the court ruled the constitution required one man’s vote to equal another’s. In that case, the court ordered Tennessee to establish equal voting districts so that each constituent’s vote weighed the same.

In the case allowing gerrymandering, Rucho v. Common Cause, the Supreme Court did not say that it was overruling Baker v. Carr, but it actually overruled it concerning cases from Maryland and North Carolina. The court ruled that gerrymandering presented a “political question” and it would not decide the constitutional issues it for that reason.

Gerrymandering is the deliberate manipulation of legislative district boundaries to give a disproportional advantage to a political party or racial group. In 1812, Elbridge Gerry, governor of Massachusetts and future vice president, notoriously approved irregularly-shaped congressional districts that the legislature had drawn to aid the Democratic-Republican Party. The moniker “gerrymander” was born on March 26, 1812, when an outraged Federalist newspaper, the Boston Gazette, observed that one of the misshapen districts resembled a salamander.

Alexander Hamilton founded the Federalist Party, the backbone of which was bankers and businessmen, the same types of people who now make up the Republican Party. It is ironic that the Republican-controlled Supreme Court would allow the same type of gerrymandering that Alexander Hamilton had opposed.

The Political Question Doctrine is a judge-made principle that allows courts to duck important issues. In many undemocratic nations, where the courts are not independent, they are controlled by the ruling party, or by a single dictator. In China, for example, courts leave political decisions to the Communist Party. In other words, China is the home base for the political questions doctrine — courts there do not decide political questions. By abdicating its authority and ducking the issue of gerrymandering, the US Supreme Court is undermining democracy and turning the US into a banana republic.

The dissenting Supreme Court justices in the gerrymandering case (Kagan, Ginsburg, Breyer and Sotomayor) said, “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.”

Together with the Court’s horrendous decision in Citizens United (where the court allowed unlimited spending on elections by wealthy contributors) the Supreme Court has reinforced a wealthy minority’s ability to legislate against the majority, turning American’s democracy into a wealthocracy.

These two decisions are amongst the worst decisions of the Supreme Court. However, they can be overruled by a constitutional amendment, or by a new Supreme Court, appointed by a new president who is not named Trump, or by state courts. Justices Kavanaugh and Gorsuch, Trump’s only appointees, joined the other Republicans on the bench and ruled that gerrymandering was a political decision that they would not decide. “One man, one vote,” may now be delegated to the garbage dump of history.

One glimmer of hope is that state supreme courts are free to rule that gerrymandering violates their state’s constitutions. In 2018, the Pennsylvania Supreme Court redrew the map of the state’s congressional districts, overturning a Republican gerrymandering scheme used in the past three congressional elections. League of Women Voters v. the Commonwealth of Pennsylvania.

The Pennsylvania Supreme Court ruled, “It is a core principle of our republican form of government ‘that the voters should choose their representatives, not the other way around.’” The Keystone state’s highest court ruled that under the Pennsylvania constitution, equal protection of the laws required, “any congressional districting plan shall consist of: congressional districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.” Hopefully, other states will follow Pennsylvania’s well-reasoned example and restore the principle of one man, one vote and end gerrymandering once and for all.

Joel Joseph is a civil rights attorney and chairman of the Made in the USA Foundation, a non-profit organization dedicated to promoting American-made products. He is author of Black Mondays: Worst Decisions of the Supreme Court, which has a foreword by Justice Thurgood Marshall. Email joeldjoseph@gmail.com. Phone 310 MADE-USA.

From The Progressive Populist, August 15, 2019

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