COMMENT: For the good of democracy, end partisan gerrymandering
Friday, March 29, 2019 -- Justice Elena Kagan wrote last year when the U.S. Supreme Court punted on the question of partisan gerrymandering, "the need for judicial review is at its most urgent in these cases," because "politicians' incentives conflict with voters' interests, leaving citizens without any political remedy for their constitutional harms." Could Kagan persuade a majority of her colleagues to finally put an end to extreme gerrymandering? That will become clear before the end of June. If she does, it will be a welcome and long-overdue outcome.
Posted — UpdatedThe other case is from Maryland, where a different panel of judges ruled that the 6th Congressional District was unconstitutionally drawn because Democrats “specifically targeted voters ... who were registered as Republicans and who had historically voted for Republican candidates.” The judges found that Republican voters’ rights were violated because the gerrymander effectively moved about 30 percent of them out of the district, which for nearly two decades had been represented by a Republican congressman, and replaced them with Democratic voters.
In both cases — Rucho v. Common Cause and Lamone v. Benisek — lawmakers were clear about their intentions and set out explicitly to one-up the other party.
In deciding these disputes, the justices could send a clear and important message against the practice of legislators drawing district boundaries in a way that increases their party’s re-election chances — by moving voters for the other side in and out of districts and diminishing the value of their votes.
The Supreme Court showed signs Tuesday that it may be willing to do just that. Surprising many court-watchers, Justice Brett Kavanaugh acknowledged the challengers’ claims. “Extreme partisan gerrymandering is a real problem for our democracy,” he said. “I’m not going to dispute that.”
In the face of politically motivated redistricting, citizens have sought solutions through state courts, ballot initiatives and Congress. For instance, H.R. 1, which the House approved this month, contains a provision requiring states to create independent redistricting commissions. Justice Neil Gorsuch on Tuesday pointed to some of this activity to suggest that the Supreme Court need not intervene in this area.
Piggybacking on that theme, Justice Stephen Breyer echoed the age-old worry that judges aren’t equipped to handle dicey political disputes. “There is a great concern that unless you have a very clear standard,” he said, “you will turn many, many elections in the United States over to the judges.”
But as Justice Elena Kagan wrote last year when the Supreme Court punted on the question of partisan gerrymandering, “the need for judicial review is at its most urgent in these cases,” because “politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms.”
Could Kagan persuade a majority of her colleagues to finally put an end to extreme gerrymandering? That will become clear before the end of June. If she does, it will be a welcome and long-overdue outcome.
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