Court fails on redistricting by leaving it to the partisans
The Supreme Court’s recent decision in the partisan gerrymandering case, Rucho v. Common Cause, featured an impassioned debate over the constitutional relevance of various statistics. Should a party receive legislative seats in proportion to its statewide vote total? Can an objective standard be derived by taking the median of multiple possible maps? Remarkably absent, however, from both majority and dissenting opinions, was the most telling statistic of all: 42 percent.
That is the percentage of the American electorate — approaching half — who, according to Gallup, identify not as Democrats (30 percent) or Republicans (26 percent), but as independents. They — we — are the ultimate victims of the court’s decision that the parties can gerrymander to the most extreme extent without triggering a judicial remedy under the U.S. Constitution.
The court’s decision assures the triumph of the politics of the excluded middle. By freeing the parties in every state to gerrymander for unlimited partisan advantage, the court has ceded its constitutional decision-making power to entities that answer ultimately to the political parties, thus giving tacit constitutional status to a two-party “system” that is unrecognized in our Constitution, that fails our nation on a daily basis, and that, in recent years, has come to embody the very factionalism our Founders warned was the greatest danger to republican democracy.
The court has invited precisely what President George Washington warned was a “frightful despotism”: “[T]he alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension. … [T]he common and continual mischiefs of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.” His successor, John Adams, agreed, stating: “There is nothing which I dread so much as a division of the republic into two great parties, each … concerting measures in opposition to each other. This … is to be dreaded as the greatest political evil under our Constitution.”
Far from “discouraging and restraining” this “greatest political evil under our Constitution,” the majority opinion unleashes it, exposing our system of ordered liberty to the forces most likely to destroy it and, equally disturbing, declaring the federal judiciary helpless to discover a remedy.
Is there a workable remedy? One would hardly think so upon reading the dissenting opinion. The dissent made the majority’s abdication easier by engaging in a needlessly complex exercise involving the use of technology and metrics to establish an “objective” measure.
That approach makes for interesting political science, but terribly naive politics. In New Jersey, for example, the legislative map selected in 2011 and proposed by the Democrats was informed by data analytics, which showed that if the incumbent Republican governor, Chris Christie, were to win reelection by 57 percent of the vote or higher, large Democratic majorities in the legislature would vanish. Christie, in fact, was reelected in one of the largest landslides in state history; enthusiasm for his candidacy did extend to the legislative races, in which Republicans outpolled Democrats statewide in the legislative races by a substantial margin. Yet only one Assembly seat changed hands; the large Democratic majorities were preserved.
Does that mean, as the dissent’s approach would suggest, that the map was a partisan gerrymander?
No. What happened in New Jersey was not political science; it was politics. The Republicans had a strong candidate at the top of the ticket, so Republican turnout in districts they controlled was high. The Democratic candidate, frankly, was unsupported by her own party in certain key areas of the state, so Democratic turnout was low. On top of that, politicians likely struck a deal: the Democrats would run a weak, unsupported candidate, thus assuring the incumbent a large margin to set up his presidential run; in exchange, the Republicans would not really contest control of the legislature.
New Jersey’s real-world experience exposes the folly of the dissent’s approach of trying to remove by the alchemy of the algorithm the human element of this very human enterprise, identifying an “objective” standard by effectively conscripting the largest block of voters — independents — to membership in one party or another based on past voting patterns. But independence should be respected, not assumed away. Our largest voting block reserves the right to change its mind.
In my view, the dissent’s emphasis on discovering “objective” standards was misguided, but that should not have ended the issue of the federal courts’ oversight.
There is no question that the most egregious gerrymanders are occurring where the process is controlled entirely by one party. Recognizing that the Constitution commits much discretion to individual states where redistricting is concerned, the court nonetheless can require, as a constitutional baseline, that the process employed by a given state reflect in some manner the interests of the majority of voters who are unaffiliated with the controlling political party.
For the reasons identified by our first two presidents, redistricting is too important to be left to partisans. I have seen the process up close, having served as counsel in 2011 to New Jersey’s tie-breaking independent chair of the Legislative Reapportionment Commission, and as the tie-breaking independent chair myself of New Jersey’s Congressional Redistricting Commission. I have seen the parties’ redistricting and reapportionment proposals. In the absence of such a tie-breaking mechanism, if either party had total control of the process, there is no question that the “spirit of revenge” endemic to political parties would prevail.
New Jersey’s system, although far from perfect, has one redeeming feature. The presence of an independent tie-breaking member of the legislative and congressional redistricting commissions assures that the parties can be forced to compromise, because they need that tie-breaking vote. The efforts in some states to create completely independent commissions also should be encouraged, but will be difficult to achieve in states whose constitutions lack initiative and referendum.
These are perilous times for our form of government. Dissatisfaction with the two parties has never run higher. The parties are acting precisely as our Founders feared, imperiling the future of a compact written to anticipate their emergence and to attempt to circumscribe their influence.
The majority’s conclusion, in such circumstances, that there is no role for the federal courts in vindicating the electorate’s participatory rights under the federal Constitution is an affront to the very foundation of the document the court is charged with interpreting.
We have, in the worst sense of the term, a bipartisan Supreme Court. In this context, it has failed to deliver nonpartisan justice.
John Farmer Jr. is University Professor at Rutgers Law School and a faculty associate of the Eagleton Institute of Politics. He chaired the 2011 New Jersey Congressional Redistricting Commission and was counsel to the chair of the New Jersey 2011 Legislative Reapportionment Commission. He is a former assistant U.S. attorney, counsel to the governor of New Jersey, New Jersey attorney general, senior counsel to the 9/11 Commission, dean of Rutgers Law School, and executive vice president and general counsel of Rutgers University.
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