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Monday, October 24, 2016

One Person ... Five Votes

This election is important because of the death of Antonin Scalia and the aging of other members. The balance of the Supreme Court of the United States (SCOTUS) is at stake. Both sides have made this a campaign issue, citing the controversies that cause the most concern among passionate voters: abortion, the 2nd Amendment, minority rights, criminal justice. 

An issue that is never mentioned is the most important. That involves interpretation of Article I, section 2 as it relates to the right of the People to vote in elections.

In 1982, SCOTUS, in Karcher v. Daggett, struck down a New Jersey redistricting scheme. The Court ruled that the 14th Amendment Equal Protection Clause should apply to the right to vote, affirming the principle of “one person, one vote.” 

The NJ plan was discriminatory to minorities by reducing their power vis a vis districts that had a non-minority majority.

The precedent was followed in Davis v. Bandemer, in 1986. SCOTUS decided that Indiana’s redistricting plan could be challenged in court, but the justices split on the standards to apply to the practice. 

The case was complicated by the contradictory briefs sent to the court. In Indiana, the minority Democrats objected to Republican gerrymandering that watered down Democratic votes. But an amicus brief was filed by Democrats in other states—including California, where Dems controlled the Legislature and hence the redistricting—urging the court to stay out of politics. 

The members of the court agreed that the issue was one that should be presented to the court, but had trouble deciding the appropriate standards for deciding constitutionality. Justices White, Brennan, Marshall, Blackmun, Powell and Stevens agreed on parts of the majority opinion, but not others. C.J. Burger, O'Connor, Powell all filed separate opinions concurring, dissenting, joining - in different parts. 

Then, in 2004, in Vieth v. Jubelirer, the court ruled that gerrymandering was a political issue and not a fit subject for the courts. They upheld Pennsylvania’s plan that eliminated two Democrats from office in the next election, by redrawing districts after the state lost 2 seats in the 2000 census.

The plurality opinion was written by Antonin Scalia, who denied that he was overruling the precedents, merely following "original intent." He was joined by C.J. Rehnquist, Sandra Day O’Connor, and Clarence Thomas.

Anthony Kennedy concurred, providing the 5th and deciding vote. Kennedy agreed with Scalia that the issue should not be “justiciable” because he couldn’t think of a way to establish standards for defining when gerrymandering was unconstitutional, but he didn’t fully agree with Scalia, hoping that some future court could come up with acceptable standards.

The dissenting votes in favor of striking the Pennsylvania plan were J.P.Stevens, David Souter, and Stephen Breyer, and Ruth Bader Ginsburg.

 And that is the current law.

In the “off-year election of 2010, when Democrats were numbed by the effects of the 2008 crash and the cries against the bail-out and the bruising fight of the ACA (enacted in March). Republicans elected many governors and state legislatures. It was a disaster for Democrats and democracy because it was a Census year, when redistricting is required because population shifts cause losses or gains of seats in the House of Representatives.

The national Republican Party anticipated this and were ready with computerized plans for gerrymandering Democratic voters out of any possibility of controlling the House. Districts were redrawn so that all Democrats were packed in one district. Other districts were drawn so that any remaining Democrats were outnumbered by Republicans.

Of course this is made possible because African-Americans make up a large share of Democratic votes. Minority communities are often densely populated, while minorities are excluded from suburbs and rural areas. That makes it easy to take a county with a gross majority of Democratic votes result in more Republicans in Congress than Democrats.

California eventually tried to solve the confusion that resulted in radical redistricting every time the Legislature shifted power in the volatile population state. California often had Republican governors ready to veto any plan that gave Democrats an edge.

California created a Redistricting Commission that is nominally impartial, or at least bipartisan. In other democratic countries, this sort of plan has been in place for many years.

So, a new president will nominate one or more judges, possibly changing the balance of the court. Since 2004, only Breyer and Ginsburg on one side, and Thomas on the other side, remain on the court.

If the court gets to decide a redistricting case, will it be willing to impose a standard for evaluation of redistricting plans based on a principle of Equal Protection, and one person, one vote?

And then . . . they could deal with the Voter ID laws that are clearly aimed at reducing the minority vote.

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