Gerrymandering – A Constitutional Crossroads for Democracy?

The Supreme Court Justices were divided over yet another set of gerrymandering cases in 2019. If you are not aware, Gerrymandering has generally been decreed acceptable by prior Supreme Court decisions and it was deemed appropriate when used for various purposes such as in the service of promoting equality and representation in our government. Gerrymandering has of course also been used for purposes that serve less democratic interests for example a political party or incumbent strictly to retain position and power. Gerrymandering is thus a two-edge sword and not only can cut both ways; it is dangerous for everyone who does not know how to use it or against whom it is used if they have no defense. The defense against abusive gerrymandering would hopefully and ultimately be the Supreme Court unless the Court decides that it does not.

The dominant function that gerrymandering serves today is for and by political parties and politicians to retain their dominance and control of government. Some states have turned to processes and non-partisan bodies to perform the task of creating/updating their state districts independently of the politicians. Evidently in those states the public does not trust their elected officials to do the job impartially. But many states retain the process of redistricting in the hands of the legislature (those politicians that we all trust). Whether the public trusts the politicians in these states to do this task is actually not clear as the public must overwhelming pressure their elected officials to hand the reigns of districting over to someone less motivated to factor self-interests into that task and the legislatures have to agreed and do it which isn’t required.

In their latest gerrymandering cases’ decision, the Supreme Court decided partisan gerrymandering was not within the scope or purview of the Court. The Court did this by using a ‘conditional’ rationale as their bailout. Thus, they did not have to make an actual decision. While not intending to do so, the Supreme Court’s majority opinion provided the very answer to the issue that the Justices said they did not have a Constitutional standard against which to judge. That standard provides a way they could have used reliably to determine if an abuse were occurring. This means that even though the Court said this subject was not in their jurisdiction and because of that they would not hear other ‘partisan-gerrymandering’ cases, they laid out how to make the case that would require them to re-examine their own ruling or non-decision. A strange kind of irony to be sure. They ruled they could not rule, punted, and then explained all that was needed so that they could make a ruling on the Constitutionality of partisan gerrymandering cases. This is an example of why the law does not have to conform to logic, reasoning, or facts. However, the Justices cannot avoid a well-structured case even if it is the Supreme Court unless they are simply unwilling to follow their own basis for their non-ruling. I am not saying the Court would not do this, only that it would be another step in demonstrating that they are primarily interested in not getting involved in a fundamental Constitutional issue.

As our technology has advanced and more information is available, that information has allowed us to manage and control the gerrymandering process much more effectively, for good or ill. These advances have increased the ability for a political party to use the legislative redistricting process to keep political power via partisan gerrymandering for which the objective is self-defining. Our science and technology have enabled politicians to subvert gerrymandering to serve partisan objectives and away from any other purpose or rationale that is beneficial to democracy and our American values. Partisan gerrymandering is a power play, and it has a clear disenfranchising effect on a fundamental American principle and Constitutional right: equal representation under the law. When a minority of voters can disproportionately control the levers of power, the equality of the “one man, one vote” principle has been violated. The “one man, one vote” principle is a mainstay of many Constitutional ruling, with perhaps the exception of the “partisan gerrymandering” decision (non-decision) based on the Justices’ self-identified inability to see how to determine that it is overtly biased against the “one-man, one-vote” principle.

The ability to abusively use gerrymandering being increased by our technological advances can also cure it. We can do more with information and data than ever before, and we have more data than ever before. This includes how to gerrymander much more aggressively and effectively to bias election outcomes, to deprive some voters while advantaging others. Fortunately, it is exactly the same technical advances that provide the best tools for countering corruptive application of gerrymandering solely for political party biasing. The reason that technology works either way is that the technology does not care what it is used to accomplish. I would hope the Justices would decide that they can render a decision if someone simply shows them how to prevent the issue from burdening them or the courts in the future, and explaining it simply enough they understand their own rationale adequately supports it. It is not hard to do, if you have a good STEM to average person’s intellect translator.

There can be no justification for allowing 40% of voters to control 80% of the legislative structure because a political party benefits. But the majority Justices’ decision declared it was ok since it was a “difficult” problem to resolve and they could not understand the science that proved it as intentional bias for retaining political power. The more relevant argument, though a lesser one, that the majority made was that getting the Supreme Court (or courts, in general) involved in elections is a slippery-slope concern and more importantly it would promote politicians engaging in cases every time they lost an election in a state where gerrymandering lies in the hands of a political party that uses it to retain power. This last argument is a sound, reasoned and valid assessment; however, if the Justices had understood their own rationale and basis for rejecting making a determination then this concern can also be swept away with their unrecognized solution to the ‘too difficult’ assertion because of our technological prowess.

We know what motivates politicians and political parties to use gerrymandering to keep their power: it is the power, money and advantages that holding that power provides. These are the same motivations that non-democratic forms of government are dominated by, and by which other nations’ citizens are dominated by. Gerrymandering is like any tool, it can be used for good or ill; but believing that you are not making a choice of whether it is being used for good or ill is not a defense, it is an excuse of the worst kind. Dismissing the cases is just denying a willingly participating in corruption. If gerrymandering is being used to deprive citizens of their foundational right to representative government, the “difficulty” excuse is a betrayal of the Justices’ oaths to “protect and defend” the Constitution. Reaching a decision does not require that future elections will be brought before the Court. It just requires that you know enough about how to define your decision so that it obviates that consequence or concern. Perhaps the Justices do not know how preventing a flood of future cases can be done, but there is also no requirement that the Justices do know how to do it or even to know that it can be done. When the Justices do not know how to address their concern would not the more appropriate course be to ask someone who does? They just need to turn to expertise who can show them how easy it is to do. SCOTUS does not need to worry about entangling the Court in elections, no Law of Physics requires it. You just need some intelligence about problem-solving applied and set before the Justices to show how the solution the majority provided in their opinion can be delivered.

So, the Supreme Court Justices were concerned over their own competencies regarding being able to understand the basis for ruling on the gerrymandering cases. The Justices’ concerns over not comprehending how to determine whether gerrymandering has been used to biasing elections abdicates their oath.  To simply allow political parties to subjugate the populations they are supposed to serve does not seem to ring true with some American value or values. In punting to let the politicians do as they please, SCOTUS is basically saying: “Nothing wrong with an American plutocracy.” If the Justices think this complexity is beyond their understanding and thus makes it impossible for them to render a judgement based on information that they do not understand that would mean they do not have the ability to do their job and should thus act accordingly; there is after all a remedy even for a Justice who cannot perform their duties. That other concern the Justices have, that if they make a decision in one gerrymandering case that they will just be encouraging more and more election lawsuits based on a gerrymandering claim. This would involve the Court (or courts) in ruling in elections which would increase the politicization the Judicial Branch and undermine the US’s election system. One could restate this as a fear that it would draw the Court/courts into the political process damaging the public’s view of the Court’s impartiality. [Note: I don’t think the Court is aware that much, maybe most, of the public views the Court/courts as overly involved in our politics already.] The simplest solution is to understand the solution that their non-decision provides to eliminate this concern. They may not be able to do this but even Supreme Court Justices can be adequately educated on a subject that just is not within their wheelhouse. Consider that they know enough to provide a road-map for making a ruling, and that self-same roadmap provides the means to render more cases incapable of being brough by any case either self-validating the law was violated or demonstrating that it met the Court’s criteria for not having done so. Even politician and idiot lawyers are not going to try and bring a case to the Supreme Court where they are obligated to demonstrate that they fail on the facts to meet the standards set. Is any lawyer really going to go to court and argue that their client was not speeding as demonstrated by our own evidence that they were driving at 120 mph in a 30 mph zone and there are no mitigating circumstances that apply?

These Justices’ concerns and arguments justifying their decision to not intervene in the North Carolina and Maryland cases would be based on an incorrect understanding of the Courts’ own issues and concerns. A decision to not find gerrymandering to be an issue that the Justices can competently judge would mean that they are agreeing to permit the continued use of gerrymandering for political purposes to bias elections for a party’s benefit which is shown to be reducing the equality of some citizens’ votes in favor of others’ votes. This resolution (the term is being used reluctantly) is only slightly less egregious than if the Court were to make a direct ruling that gerrymandering for biasing elections to advantage one political party is completely Constitutional and aligned with American principles and values; thus overturning the “one man, one vote” principle of our representative government. An active approval of gerrymandering by the Justices will be another historic decision that could become comparable to Plessy v. Ferguson, Dred Scott, Korematsu, Buck v. Bell, and others. The acceptance of Partisan Gerrymandering will qualify this Court to enter the historic record for the worst of reasons.

The Court could have rule that the partisan gerrymandering in these cases is unconstitutional and violates the equal protection clause. The Court did not, it side-stepped the issue. The barrier to a definitive decision rested on the Justices’ rationales/excuses for not recognizing the abuse. The majority was worrying about the complexity of how a gerrymandering bias can be determined. Complexity, in and of itself, does not quality as a reason to abrogate a Justice’s responsibility to follow our Constitutional values. The Court does not need to understand the science, math or technology behind how biased political gerrymandering is accomplished. The majority Justices even acknowledge this but without realizing that they did; and the Justices in the minority apparently failed to either see their way through the fog of complexity nor did they see the path that the majority laid out and used it to show the majority the way out. Besides, the Justices only need to know that there are skilled professionals with the knowledge and expertise to prove a legislature has violated the majority’s criteria; that is all that is required. This is just like cases where the Justices do not need to be medical experts, or pharmaceutical, or financial, or information technology experts to render decision on all the other cases related to areas beyond their competencies. The methodology is not a decision of justice but is a statistical assessment of raw information. All that is required of the Justices is that they agree that people far smarter than them on relevant areas of knowledge can provide a mathematically sound and unbiased process, which is not even a challenging task. If they do not like the mathematical proof approach, which they do not then turn to an analyst who can show them how that mathematical proof is just a simple way to show how the evidence of the criteria the Justices’ said they lacked is provided. There is even a better way to show the Justices that they do possess an adequate knowledge base upon which they can make their decision.

Their concern over promoting more and more gerrymandering cases is a judicial red-herring. To avoid the causal conundrum that the Justices fear, they only need to set an expectation with the legislatures that if you fail the “test”, you lose the case. The “test” here is using a ‘standard’ in the redistricting process which by its very nature is a partisan-biasing standard.  If the Court really wants to put teeth in their ruling, they can indicate that if you fail the test then they will invalidate the votes for the respective candidate in biased districts of the offending party’s legislature. This is not political since it doesn’t matter which party is found guilty, it’s simply that the redistricting was biased which was a choice that has consequences because you cannot seek to diminish the value of the vote of one citizen and enhance the vote of another just because it will give the politician or party in power the means to retain the advantage of that power.

So, if the Justices had a simple test (not mathematical) that determined whether a state legislature had used a ‘standard’ which intentionally biased the process so that the value of some votes were more influential than the votes of other citizens in choosing their representatives to federal office, would they uphold the Constitutional “standard” of one-man, one-vote?