We recently said the U.S. Supreme Court’s decision to leave the Peace Cross memorial in Bladensburg untouched was “replete with the good sense we have come to expect of those who preside at the benches of America’s courts.”
The same cannot be said of the court’s 5-4 vote to let stand the blatant gerrymandering that has distorted congressional districting in Maryland and other states.
The court said it had no business interfering with the process.
Gerrymandering is the legislative configuring of election districts to give the majority political party control over as many possible.
Maryland’s 6th Congressional District was unabashedly redesigned in 2011 by a Democrat governor and the Democrat-controlled General Assembly with the intent of replacing veteran Republican U.S. Rep. Roscoe Bartlett with a Democrat.
The U.S. 4th Circuit Court of Appeals ruled in November 2018 that this was unconstitutional.
Judge Paul Niemeyer wrote that citizens “have a right under the First Amendment not to have the value of their vote diminished because of the political views they have expressed through their party affiliation and voting history.”
Other federal courts have said gerrymandering in other states violates both the First Amendment’s freedom of speech clause (voting is political speech) and the 14th Amendment’s guarantee of equal protection of the law.
Writing for the Supreme Court’s majority, Chief Justice John Roberts said federal courts are not the place to decide what amounts to a political dispute. He said voters and elected officials should have that responsibility.
This statement seems to contradict what many consider the Supreme Court’s most significant ruling — Marbury v. Madison.
In 1803 the court established that federal and state courts have the power to declare legislative, executive and other governmental actions unconstitutional, so long as they are properly within the court’s jurisdiction.
Chief Justice John Marshall wrote that “A law repugnant to the Constitution is void.”
Is gerrymandering within the Supreme Court’s jurisdiction? It said state courts could continue to hear gerrymandering cases in accordance with their state constitutions and laws, and state legislatures could enact reform.
That did happen in Pennsylvania, whose state Supreme Court said gerrymandering violated the state’s constitution by depriving citizens of the freedoms of expression and assembly, civil rights and free and equal elections.
Placing the responsibility for reform in the hands of the legislators who made reform necessary is like giving the proverbial fox a key to the henhouse.
The Supreme Court has ruled in the past that when legislators are in charge of redistricting, partisanship is bound to result, but is acceptable unless meant to devalue citizens’ votes (as Niemeyer said was done in Maryland), in which case it is unconstitutional.
Roberts wrote that although redistricting in Maryland and North Carolina was “highly partisan,” the court’s ruling “does not condone excessive partisan gerrymandering.”
If deliberately redistricting Bartlett out of office wasn’t excessively partisan, we don’t know what would be.
In dissent, Justice Elena Kagan wrote that gerrymandering allows politicians to “cherry-pick voters to ensure their re-election” — or their defeat, as was done in Bartlett’s case.
“For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” she wrote.
Kagan added that “Of all times to abandon the court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
The Supreme Court’s most abysmal ruling may have been the Dred Scott decision. It held in 1857 that a slave was not entitled to his freedom simply because his master took him to a free state. The court also ruled that blacks — free or not — could never be citizens of the United States, even if they were born there.
It has been argued that the Scott decision was made in accordance with the Constitution as it was written at the time. It took the 13th, 14th and 15th amendments to undo Scott. No such argument is applicable to the gerrymandering case.
Five justices said the Supreme Court had no grounds for interfering with partisan redistricting.
Four other justices and more than a dozen judges in lower federal courts said judicial intervention was necessary because the gerrymandering violated voters’ constitutional rights.
A number of states already have created bipartisan or independent commissions to enact redistricting reform, and Maryland Gov. Larry Hogan says he will continue to have that happen in Maryland.
Hogan is a Republican. The General Assembly is in charge of redistricting and likely will be controlled by Democrats for years beyond the foreseeable future, so don’t look for reform any time soon.