The U.S. Supreme Court, dominated by a Republican-appointed majority, is poised to issue a series of voting rights rulings this spring that will set the stage for elections for years to come.
The majority of these cases involve gerrymandering—a process in which legislatures, in states with one-party rule, draw electoral districts to lock down their power after the once-a-decade U.S. Census. They do that by aggressively segregating reliable voters, typically "packing" their base into easily won seats; while "cracking" their opponent’s voters into multiple districts. Such mapmaking can give its author's party a starting-line advantage of 6 percent or more with likely voter turnout.
There are two kinds of gerrymandering cases before the Supreme Court. Both date to maps drawn in 2011. The first concerns race-based cracking and packing, which is illegal, but has been used by the GOP in Texas (where a case that’s been litigated for years will finally be heard) and in North Carolina (where the Court last year ruled against the GOP; but that was before Justice Neil Gorsuch was seated). The second category concerns excessive partisanship, which lower federal and state courts have found goes beyond politics-as-usual and is unconstitutional.
Voting rights advocates hope those federal and state rulings would give the Supreme Court some comfort in reining in excessive partisan gerrymanders. But recent signs suggest the opposite may be in the works. Predicting what the Court will do is dicey. But the worrisome signs are coming from a series of gerrymandering-based appeals that have landed on the Court’s door since December. The Court has added new cases and issued orders in others—recent moves that make advocates of more open elections nervous.
Those gerrymander butterflies come after an early January Supreme Court hearing in a case about the GOP’s overly aggressive voter purges in Ohio, which investigative reporters at Reuters showed were aimed at undermining the state's urban-centered Democratic turnout. In that case, too, the Court’s swing justices appeared to ignore the purge's partisan motives.
Taken together, the signals—as seen in orders in gerrymandering cases and comments from the bench during the Ohio voter purge case—suggest the Supreme Court could soon issue what could be anti-democratic rulings affecting the 2018 election, the 2020 election and the drawing of political maps for the 2020 decade.
Worse Than Bush v. Gore?
In 2000, the Supreme Court stopped a presidential recount in Florida. It ignored one section of the U.S. Constitution saying elections are to be state-run and instead held that differing recount protocols in different Florida counties meant that the presidential candidates were not being treated equally under the law (another constitutional guarantee). Besides appointing George W. Bush president, that rationale and intervention astonished the legal profession and the public.
In recent days, the Court is suggesting it may again assert itself in a big case where the issues involve state elections and a state constitution—in other words, where there’s no federal role or law. The Pennsylvania Supreme Court recently concluded that the U.S. House districts drawn by Republican legislators in 2011 were unconstitutional under its state Constitution. Pennsylvania Republicans appealed to the U.S. Supreme Court, leading Justice Samuel Alito to order both sides to prepare legal briefs.
As Mark Stern wrote in an analysis for Slate, “Because the Pennsylvania Supreme Court decision involved only state law, Alito should’ve denied the request outright. Instead, he has ordered voting rights advocates to respond, raising the real possibility that a majority of the justices will vote to halt the ruling. If they do, the intervention will mark an extraordinary expansion of the court’s power to prevent states from protecting their residents’ voting rights.”
Stern explained further:
"To understand why the U.S. Supreme Court’s intrusion would be so radical here, it’s important to remember a key feature of the Pennsylvania Supreme Court’s holding. The court did not rule that the state’s gerrymander infringes upon any provision of the U.S. Constitution. Instead, the court held that partisan redistricting runs afoul of the Pennsylvania Constitution, which guarantees 'free and equal' elections as well as an unusually robust right to free expression and association. These protections go beyond the rights of free speech and suffrage contained in the U.S. Constitution…
"And yet, here we are: Alito indicated that he takes this appeal seriously by ordering a response, suggesting that five justices may vote to freeze the Pennsylvania Supreme Court’s ruling… Alito should have dismissed it immediately. His willingness to entertain this appeal instead bodes poorly for both democracy and federalism. The U.S. Supreme Court has no business forcing Pennsylvania voters to languish under a gerrymander that can’t pass muster under Pennsylvania law."
Stern is not alone in sounding what could be a serious alarm should the Supreme Court step into the Pennsylvania case.
"This may not come to pass, but if
#SCOTUS invalidates the PA Supreme Court's ruling citing the US Constitution's election's clause, that would invalidate ALL laws or state constitutions governing congressional elections other than those passed by a state legislature," tweeted the University of Florida's Michael McDonald, one of the nation's foremost experts on redistricting.
That development is not the only worrisome action on gerrymandering. Last fall, the Court heard a Wisconsin case where lower federal courts had found Republicans were excessively partisan in 2011 when drawing maps for its lower legislative chamber. To the surprise of voting rights lawyers arguing that case, the Court agreed in December to hear a Maryland appeal where Democrats used their mapmaking power to deprive a longtime Republican congressman of his U.S. House seat.
Some election law experts have said it appears the Court wants examples of excess partisanship on both sides of the aisle to protect itself from partisan criticism when it rules. (It should be noted, however, that the Maryland case is the only Democratic gerrymander before the high court—and it did not have a statewide target. In short, it has been a Republican political tool for most of this decade.)
During the hearing on the Wisconsin case, Chief Justice John Roberts (appointed by George W. Bush) openly mocked the math-based proof showing how excessively partisan gerrymandering wasted votes—the metric the lower courts found persuasive. Roberts’ comments, coupled with taking the Maryland case, and now, possibly taking the Pennsylvania GOP's appeal, are causing voting rights advocates to worry that the Court will soon declare there’s no such thing as excessive partisan gerrymanders.
Meanwhile, there’s more gerrymandering action. The Court will hear a Texas case that has been in litigation for most of this decade over what lower courts found was illegal race-based targeting of black and brown voters by the GOP when they drew maps in 2011.
On the one hand, it’s long past time the Court hear that case instead of leaving it in lower court purgatory. But the pending review means the maps drawn by Texas Republicans likely will remain in place for 2018—despite lower court orders to redraw the maps. That's because this year’s elections are underway and federal courts almost never interfere once that process has begun. Thus, the bet by Texas’ GOP that their racist maps would hold for years has apparently paid off.
So while it looks like the Supreme Court is taking a wide look at all forms of gerrymandering, it appears to be doing so with an eye to what happens after the 2020 Census, which is the next time state legislatures will revise House districts and their legislative maps. If that proves true, it means the only recent ruling that could affect 2018 elections is from Pennsylvania. It’s not yet clear if the Court will step in and block that.
Partisan Voter Purges
Taken together, these signs suggest the Court’s Republican-appointed majority will not embrace more open and fairer elections.
There’s evidence of that grim prospect from an early January hearing about Ohio’s aggressive voter purges. In that case, community groups and voters from Democratic cities sued after Republican Secretary of State Jon Husted used an ambiguity in the language in the National Voter Registration Act of 1993 to remove legally registered but infrequent voters.
As this excerpt from the hearing’s coverage by The Hill showed, the justices were burrowing into the trees, the law’s fine print, while missing the forest. That bigger picture is that Ohio’s Republicans were abusing the voter list maintenance process to purge the opposition’s base. (A Reuters investigation found most of the voters purged were from blue cities, not red suburbs.)
The Hill reported:
"Justice Anthony Kennedy, the court’s frequent swing vote, at one point appeared to defend Ohio’s practice.
"'The reason they're purging them is they want to protect the voter roll from people that have moved and they're voting in the wrong district,' he said. 'That's the reason. What we're talking about are the best tools to implement that reason, to implement that purpose.'
"The justices wrestled during the hour-long arguments with the text of provisions in the laws that prevent states from removing voters from the rolls unless a notice is sent, the voter fails to respond to the notice and fails to vote in at least two consecutive federal elections following receipt of the notice."
These pending cases about gerrymandering and voter purges will do much to shape the landscape for 2018’s congressional midterms and the elections that follow.
Numerous academic studies (and even the pre-Gorsuch Supreme Court ruling about illegal racial gerrymandering in North Carolina) have found that the GOP typically segregates voters to give themselves a 6 percent or more starting-line lead with reliable voter turnout. If the Court delays issuing its gerrymander rulings until well into the spring, it’s likely that decision will not apply to the 2018 midterms. That preserves the status quo and rewards the GOP’s 2011 gerrymanders.
However, if the Court rules that Ohio’s partisan voter purges are legal—validating a twisting of the National Voter Registration Act’s intentions, the law that sought to expand voter registration to motor vehicle agencies, state offices and military recruiters—you can expect the GOP in states like Georgia, Florida, Texas, Wisconsin, North Carolina and elsewhere to copy Ohio’s template and selectively purge their voter rolls before this fall’s elections.
Elections obviously have consequences. And so do potentially bad judicial decisions.
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