The Supreme Court Deals a Blow to Democracy

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KC Johnson is a professor of history at Brooklyn College and a blogger at Cliopatria.

Summarizing last week’s Supreme Court ruling in the Texas redistricting case, Loyola Law School’s Rick Hasen recalled Chevy Chase, from Saturday Night Live’s"Weekend Update":"This just in. Generalissimo Francisco Franco is still dead." Three decades later, Franco is still dead, and in light of the decision in this case, attempts to get the Supreme Court to limit the scope of partisan gerrymandering are likely to remain dead as well. It’s hard to imagine a more clear-cut case of partisan gerrymandering than the Texas one appearing anytime soon.

The decision was as unsurprising as it was unfortunate. It seems to me that the single biggest problem we currently have in federal elections is House district gerrymandering—which created the extraordinary situation in 2004 of more tightly matched Senate elections than genuinely close contests for the House. Yet the plaintiffs in the Texas case pursued an odd strategy, diluting their primary emphasis on partisan gerrymandering. They also made a civil rights claim—on which they scored a narrow victory, though one unlikely to have much of an effect. And they raised the bizarre issue that the courts should reject out-of-cycle redistricting—hardly an uncommon practice over the last four decades and clearly a constitutional one. As a result, they gave a Court that needed no excuse not to rule in their favor plenty of excuses to come down as it did.

Though we’ve grown familiar with judicial involvement in the redistricting process, it’s worth remembering that this pattern is scarcely four decades old. Until the Warren Court, the judiciary steered clear of redistricting, which it viewed as a political question. This changed with two key Warren Court decisions—Baker v. Carr (1962), which established the one-man/one-vote principle, and Wesberry v. Sanders (1964), which applied that principle to the drawing of House districts.

It’s hard to remember just how controversial these decisions were at the time. Justice Brennan’s powerful opinion in Baker generated an equally forceful dissent from Felix Frankfurter, who fumed that the majority employed"destructively novel judicial power" to capriciously" cast aside" an"impressive body" of precedents that"reflected the equally uniform course of our political history regarding the relationship between population and legislative representation." He predicted that the decision"may well impair the Court's position as the ultimate organ of ‘the supreme Law of the Land,’" since"the Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements."

As Frankfurter cautioned, the two decisions did undermine the Court’s standing, at least temporarily, in Congress. In 1964, the House passed a measure introduced by William Tuck (D-Virginia), a Byrd Machine stalwart, to strip from the federal courts jurisdiction over state and federal redistricting questions. The companion Senate measure, co-sponsored by Majority Leader Mike Mansfield (D-Montana) and Minority Leader Everett Dirksen (R-Illinois), seemed certain to pass. Desperate Senate liberals, led by Pennsylvania’s Joe Clark and Illinois’ Paul Douglas, attempted to get a plank into the 1964 Democratic platform committing the party to opposing the Tuck bill—a scheme upon which LBJ, fearful of dividing the party, did not look kindly. (Keep in mind, if you listen to this clip, that Douglas was a professor of economics before winning election to the Senate.)

Johnson’s preferred strategy of filibustering the Tuck bill worked; the overwhelming Democratic majorities returned after the 1964 elections put to rest any chance of Congress limiting the Warren Court’s authority. Meanwhile, in the post-Baker world, out-of-cycle redistrictings were common (a fact conveniently forgotten by the Texas plaintiffs). To take one example of many, in every election cycle but one between 1960 and 1974, either New York or New Jersey (and in some cases both states) redrew their House district lines.

Redistricting debates in the 1980s and 1990s largely revolved around the question of whether the Voting Rights Act required creation of so-called"majority-minority" districts. In several Southern states, an unusual alliance of African-Americans and Republicans argued they did; Democrats tended to say no. Both the Democrats and the Republicans were acting for partisan reasons (Republicans wanted blacks packed together in a few districts rather than spread out over many districts; Democrats wanted the reverse), but the courts ignored the partisan issue almost entirely. For an effect of majority/minority districts, consider the case of Georgia. In 1992, Georgia had 10 districts, represented by 8 white Democrats, 1 black Democrat (John Lewis), and 1 Republican (Newt Gingrich). By 1995, Georgia had 11 districts—8 represented by (white) Republicans, three represented by black Democrats. This constitutional question eventually was decided in Shaw v. Reno, which held that geographic compactness couldn’t be ignored.

Though unusual before 2002, DeLay-like partisan redistrictings were not unprecedented. (The late Phil Burton’s masterful California map, drawn for the 1982 elections and basically held in place ever since, is one reason why the Democrats’ control of the California delegation has remain unchallenged, even before the pre-Prop 14 state realignment.) But technological changes—especially the role of GIS in mapmaking—allowed for the drawing of far more precise lines in 2002. Districts in Ohio, Pennsylvania, and Michigan were blatant Republican gerrymanders, and the Pennsylvania case triggered a lawsuit.

In Vieth v. Jubelirer, four Justices (Scalia, Thomas, Rehnquist, and O’Connor) held against the Pennsylvania Democrats, concluding that"political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist." Kennedy sided with the four in calling for dismissal of the Pennsylvania case, but he did concede that, perhaps, this was an issue that the Court could consider in the future. He left no clear guidelines, however, on when partisan gerrymandering would become so grotesque that it would require Court intervention. The four liberal justices all sided with the Pennsylvania Democrats.

There’s been pretty extensive analysis of the Texas case, which generated a complicated array of opinions, at various election law and Supreme Court blogs (see, for example, here, here, and here). Let me add two other items. First, since it’s hard to imagine a gerrymander as blatant as the Texas one, I think we have to assume that Kennedy’s bar is one that’s impossible to meet, and this is simply an issue with which the courts won’t involve themselves anytime soon.

Second, I fear it’s unlikely we’ll see action at the state level either. Right now, only two states (Iowa and Arizona) draw their district lines through non-partisan commissions rather than through the state legislature. In 2005, good-government activists in Ohio got a referendum on the ballot to add Ohio to the list. Circumstances seemed propitious: the state Republican Party, which had overseen the drawing of the lines in 2001, was in the midst of probably the worst scandal in its history; the state’s chief elections officer, Republican Kenneth Blackwell, had acted in a blatantly partisan manner in 2004. Yet Ohio voters overwhelmingly rejected the referendum.

Just as I can’t see a worse case of partisan redistricting than Texas in 2004, I can’t see a better combination of circumstances to adopt the non-partisan commission solution than Ohio in 2005. The fact that both options ended with upholding of the status quo doesn’t bode well for our political health.

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Citizen Historian - 12/27/2009

One of the reasons given for the greater partisanship in the House of Representatives than the Senate is the fact that Members represent a single district (which may have little diversity) rather than the entire state, as in the Senate. (Senators have a greater need to balance various interests, except those who represent states with a high number of likeminded people or with little diversity.) With little to stop gerrymandering, do you see the trend in partisanship in the House as increasing?

And a question for those who live in gerrymandered districts -- do you find it difficult to sustain your sense of unity with the nation as a whole because of the way politicians pitch issues to you? Do issues relating to the "common good," as opposed to ones that affect you and your neighbors the most, tend to fall by the wayside as a result? How do you best maintain your sense of connection to others in the nation, if not by listening to the appeals of those who represent you? In listening to the Members who represent the most gerrymandered districts, it often sounds to the rest of us (those who live in areas with a very diverse population) as if they are pitching their appeals mostly to one narrow group or another. Good for them, in terms of being elected and re-elected, good for the district, if they represent its voeters, but what about the nation? Thoughts?

Citizen Historian - 12/27/2009

Should have added that I mostly am thinking of pork barrel spending, for which voters seem to keep rewarding members, selfishly, but which can hurt the nation longterm.

Citizen Historian - 12/27/2009

I do see the Senate as somewhat less partisan, but I undertstand why you don't.

I happen to live in a state with large urban, suburban, and rural areas. To some extent, I can count on my Senators voting with some balance to represent all three types of voters. Or at least having the Senators rely on staffers who look in a balanced fashion into issues that affect the various groups. I view that as a good thing.

But you're right that party line votes are common with both parties and in both houses. I guess what most discourages me is that I always have been pretty much a fiscal conservative although a moderate in most other areas. If the need to increase spending after Hurricane Katrina was not enough to get Congress to sober up and cut back on pork barrel spending, I guess nothing will. A few members made noises about cutting back on earmarks, etc., but it soon was business as usual. Pretty discouraging when you look at where some of our tax dollars go.

I'm afraid voters often seem very short sighted to me, since they routinely seem to reward those who bring home the pork. Personally, I would give up some benefits of Federal spending for my state in order to have that money go where it is needed more. But, I'm probably an exception among voters. (On some issues it is hard to get people to think about what is good for their state as a whole, much less the nation. Do voters in rural areas often think about the needs of nearby exurban or suburban districts, especially on issues where a vote that may benefit one group can harm another? Do voters in middle class or wealthy white districts think about the needs of districts with a high number of less well to do blacks in the same state? Not often, I suspect. It's awafully hard to get people to look at the big picture, especially where spending is concerned. And I don't see many Members trying very hard.)

Citizen Historian - 12/27/2009

"Majority should rule or no one can govern." Yes, of course, most Americans accept that premise, whichever way the pendulum swings, whether it is Republicans or Democrats who control one or both houses of the legislature or the executive branch. Or whether we have one party controlling both branches of government or we have divided government. If we didn't accept that premise, whether the people we voted for won or lost, we couldn't sustain our democratic processes.

That's not to say the process of governance always is pretty. And some of the problems are bipartisan, affecting people in both parties. One such problem is the dramatic increase in earmarks.

For those of you who are not afraid to look deeply into what goes into making the sausages, so to speak, consider reading Winslow Wheeler's 2004 book, Wastrels of Defense.

Bruce Bartlett noted of the Wheeler book in The Washington Times in 2004 that "Mr. Wheeler's main point is the defense budget is no less prone to pork barrel spending than any other part of the budget. He writes about his frustration at having spent so much of his time working on pet projects for his bosses that added nothing to our national security but served solely to advance their re-elections. Unfortunately, in many cases, these pork barrel projects came at the expense of critical defense needs, such as operations and maintenance."

As history buffs, we know that few former staffers write memoirs (in contrast to people who leave the executive branch, many of whom write about their experiences). The Wheeler book is worth reading, with the caveat that it provides a single POV, and that POV is one of someone who apparently did not leave his job volunatarily. There are few other books of this kind out against which we can balance Mr. Wheeler's views. And the people he criticizes have not offered explanations or counter arguments. With those cautionary notes, and they are strong ones, I offer it for consideration.

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Randll Reese Besch - 7/23/2006

Yes,have geometric boundaries that are immutable and just change internally with the populations change only. Nothing else. No partisanship,no gerrymandering whimseys or other corrupting actions.

Lawrence Brooks Hughes - 7/8/2006

To Robert Johnson's last remark, "I can't see a more partisan redistricting case than Texas in 2004," I would suggest that he look at Texas prior to 2004.

The "majority minority" district law, of relatively recent Supreme Court authorship, is much more pernicious than the good old partisan redistricting process, which has been with us since Gerry. I was struck how, by their zeal to protect their own seats, incumbent black Democrats flocked to support the "majority minority" mistake, despite the way it obviously would diminish their national clout and that of the black people they represent. Pulling black populations from their districts has given white Representatives incentive to ignore black wishes. This is the same mistake blacks continue to make nationally by delivering 90% of their presidential vote to any Democrat, even though he doesn't believe in God, school vouchers, or heterosexual marriage, etc. Similarly with the House of Representatives elections: Black incumbents today are a law unto themselves, the safest of the safe, gaining very high seniority on committies, while often unresponsive to their constituents and at times acting insane without fear of retribution. All of this decreases the likelihood there will be any change soon in the "majority minority" rule, which was wrought by liberals, naturally.

Rob Willis - 7/5/2006

Why is it the "end of the Republic" only when the Republican party gives the Democrats a taste of their own medicine? The Dems have been pulling this same crap in Texas for generations, but you never complained before. It is really sad, but natural, I suppose.

I don't like the concept of gerrymandering at all, because it reminds me of affirmative action quotas - creating something artificial to achieve an end that generally benefits those in charge at the time, and rarely the corporate body in question, whatever it is.

Bill Heuisler - 7/4/2006

Mr. Johnson,
Two points.
Partisan is neither bad word nor adjective to be avoided. Loyalty and devotion to a specific set of ideals creates political parties - the soul of our political universe - the only way individuals can participate.

Partisanship has been the basis of our constitutional democracy since 1780 and I'm sure you wouldn't like our governing bodies very much if they were animated only by a desire to just get along. Majority should rule or no one can govern. Partisan tension is our democratic engine.

In Arizona we've had nonpartisan redistricting comittees for two redistrictings. A hopeless mess. Each result has been challenged by both Parties, Indians, Latinos and other groups. Courts were unable to resolve the various issues and two elections have been held under a special court dispensation freezing districts in prior delineation. Removing politics from the most political process in our democracy harms everyone except lawyers.
Bill Heuisler

Jonathan Dresner - 7/4/2006

I don't see how partisanship can increase in the House much more than it already has; actually, I reject the premise that the Senate is less partisan -- seems to me just as prone to party-line votes and extremism as the House, modulated only slightly by the greater scrutiny Senators get.

And I live in a state with all-Democratic representation in Congress, and I'm on the verge of voting Green because they don't speak for or to me with any clarity.

Robert KC Johnson - 7/4/2006

I didn't mean to imply that--I agree with you that the decision was, on constitutional grounds, probably correct (hence unsurprising). It's still a bad outcome from a good-government standpoint.

I'm not entirely convinced, though, that partisan redistricting of the type we've started to see in the last few years is necessarily constitutional in all circumstances. I suppose I agree with Kennedy here. I think the Texas plaintiffs argued a terrible case, and deserved to lose. I would have liked to have seen them force Kennedy to spell out his thinking more, rather than give him an escape clause.

Frederick Thomas - 7/3/2006

Mr. Todd:

Such measures have many technical failings, such as putting populations on both sides of a great natural divide into the same district, or putting dirty manufacturing zones into the same district with nice neighborhoods.

The basic objective is to put people with common interests together, so they may be represented, not ignored. In this respect the invention of Governor Elbridge Gerry was more efficient than mathematical constructs.

By the way, Gerry was a Democratic Republican, and I do not hear much complaint at the horrible mess created in Texas for decades under the Texas "Democrats."

Dennis R. Nolan - 7/3/2006

I'm surprised, KC, to see you fall into the trap of believing that your personal preferences somehow have to be embodied in the Constitution. As a policy matter, partisan gerrymandering is of course bad. That doesn't mean that it's unconstitutional. Wishing that the Supreme Court could instead act as a Supreme Legislature to mandate good policy just leads to the judicial intrusions on democratic government that you and others rightly criticize in other contexts.

Andrew D. Todd - 7/3/2006

A couple of years ago, a man named Michael Larson published a proposal for a mathematical method of determining congressional districts ("Genetic Algorithms and Optimal Solutions," Dr. Dobb's Journal, April 2004). The idea is that you have objective criteria, which can be written into law, such as the average distance between places of residence of the inhabitants of a district. Having established these objective criteria, you turn the computer loose to crunch out the district boundaries. Such a formula would have the advantage that it would not open the Pandora's box of endless judicial review.