The Supreme Court giveth and it hath taken away.
That could certainly be the mantra of the Court led by Chief Justice John Roberts. Though it theoretically leans conservative, the Court under Roberts has unpredictability coursing through its veins.
The Court gutted major provisions of the 1965 Voting Rights Act, but also upheld key provisions of the Affordable Care Act. It has acknowledged the First Amendment rights of closely held corporations as well as 14th Amendment protections for same-gender couples to marry.
The Court’s recent unpredictably could potentially have long-term implications on American democracy. In Rucho v. Common Cause, the Court ruled 5-4 that it had no position on whether state legislatures could frolic in the corrupt partisan fields of excessive gerrymandering. The fox has been granted sole guardianship of the hen house by acclamation at the annual chicken conference.
Citing partisan gerrymandering began prior to the Declaration of Independence, and was not lost on the Framers when they drafted and ratified the U.S. Constitution. The Court’s majority sought legal terrain that placed them beyond the sphere of politics, but the Constitution is a “political” document with the Court serving as umpires. The Court has seemingly developed laryngitis; unable to call balls and strikes as excessive partisan gerrymandering takes mammoth cuts at our democracy.
The majority offered two areas where it might have a role: one person, one vote and racial gerrymandering. But the majority contends Rucho falls between the constitutional cracks because it does not deny anyone the right to vote nor are the practices prohibitive based on race. Is it therefore consistent with our constitutional values to systematically render an individual’s vote based on party affiliation meaningless?
The rhetorical question posed by Thomas Jefferson in a letter to Thomas Paine bears repeating: Whether one generation of men has a right to bind another.
Society does not remain stagnant. Rucho v. Common Cause is not the Framer’s understanding of gerrymandering nor that of the “Boss” Tweed variety.
Political redistricting today represents a multi-million-dollar bipartisan enterprise, accompanied by a bevy of well-paid consultants and lawyers, along with advanced voting data and software. Think of it as an electoral arms race for the creation of a permanent majority, at least one for the foreseeable future. As partisan political efforts encroach on the current state of our democracy, the Court offers it is powerless.
The lower court, however, did realize a constitutional conundrum as it found the practices in Maryland and North Carolina to be reprehensible acts that violated not only the letter, but also the spirit of the Constitution.
The unintended consequence of the Court’s 5-4 decision makes the brazen partisan practices of political parties in the majority immutable, rather than the Constitution.
Collectively, there is agreement among the Justices that excessive partisan gerrymandering is corrosive to our body politic. The primary difference rests with deciding which is the appropriate body to address the problem.
The Court has a constitutional obligation to ensure elections are free of racial discrimination, but are neutered when it comes to partisan gerrymandering.
Pundits like to throw around the term “constitutional crisis,” but what should be made of the Constitution’s lack of clarity, as Roberts offered in his opinion? Given that key branches of government are either unable or unwilling to act, don’t excessive gerrymandering practices represent the makings of a constitutional crisis? Do shoulder shrugs and a less-than-empathetic “Oh well!” suffice from the nation’s highest court on matters that threaten democracy?
This is a problem created by political dysfunction. Lawmakers at the federal and state levels have abdicated their responsibilities, placing the burden on the Courts to correct what they are reluctant to address because of the obvious partisan benefits. Excessive gerrymandering weakens our democracy, increases apathy, emboldens special interests and lowers voter turnout as it permanently devalues trust in our political process.
I agree the Court is not the ideal place to find a remedy. But where else can the minority turn? Excessive gerrymandering is incubated by self-interest. It reflects the tyranny of the majority that James Madison introduced in Federalist 10. It is not within the political interests for legislatures to recalibrate the abusive practices that are bearing political fruit.
It is, therefore, up to an ever-increasing disillusioned populace to address the problem. Democracies are only as strong as its participants. As it states in the Declaration, a train of abuses and usurpations demands it is the duty of the people to throw off such government and provide new guards for future security, and not acquiesce to dysfunction.