Supremes favor Gerrymandering

[_honorentheos]

I forget how enjoyable reading Supreme Court decisions and dissents can be. Whatever one may think of the outcomes, the arguments are considered and largely demonstrate a reasonable understanding of the opposing view. A person could learn a thing or two from reading them carefully.

Anyway, it's worth bringing Justice Roberts comment forward to highlight the rational behind the decision:

Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernable in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is “fair” in this context would be an “unmoored determination” of the sort characteristic of a political question beyond the competence of the federal courts.

That's a different argument than saying the courts favor partisan gerrymander.

[_canpakes]

That's a different argument than saying the courts favor partisan gerrymander.

Indeed, similar in nature to how allowing the option of abortion to exist does not mean that one is “in favor of killing babies”.

[_EAllusion]

Eh. It's also similar in the regard that if the courts allow it and there is motive to do it, it's effectively ensuring that it will exist and the Court is OK with that as Constitutional. Fetuses and partisan voters have no rights here the public needs to respect.

I think we're in a vicious feedback loop of Republicans passing anti-Democratic measures that tilt elections in their favor, which allows them to take entrenched majorities to pass even more anti-Democratic measures, and appoint judges who will green-light those measures, which leads to even more tilting of elections in their favor. Florida just passed an effective poll-tax. Old Southern-style authoritarianism is happening nationally.

At a certain point, a point that states like North Carolina (and my Wisconsin) crossed, it no longer feels like a true democracy.

The South African apartheid state existed at first because of gerrymandering. That's how the national party entrenched their power. Per the logic of Roberts, the ruling party could always democratically choose to change the rules so they would no longer have a stranglehold on power. And they did so after approximately 6 decades under heavy international pressure and threat of revolt. So all's well that ends well.

[_honorentheos]

At heart of Roberts argument is the position that while we may intuite the process isn't fair it's hard to get past the intuition to define where the courts are needed to restore what is being taken or infringed in a way that is supportable. It is dubious to say the courts are the right venue for resolving what is better seen as a controversy than a case to use the language of the Constitution. And since the Constitution is clear that states are responsible for the logistics of elections but Congress can intervene it seems the aim was to end the controversy over if the courts should be also play a role in matters of politics when it comes to elections. The decision covers the fact gerrymandering or manipulating districts for political advantage has existed longer than the Union. So, where is the line when it become a legal issue? It seems Roberts says it's up to Congress to enact change not the courts in this case, as adding the courts to this doesn't actually resolve a legal issue but rather drag the courts into partisan politics.

Also, racial gerrymander was not excluded from judicial review. Perhaps it just means states have to be sneakier with their racial districting to be ok, but the South Africa example is a red herring.

[_EAllusion]

At heart of Roberts argument is the position that while we may intuite the process isn't fair it's hard to get past the intuition to define where the courts are needed to restore what is being taken or infringed in a way that is supportable. It is dubious to say the courts are the right venue for resolving what is better seen as a controversy than a case to use the language of the Constitution. And since the Constitution is clear that states are responsible for the logistics of elections but Congress can intervene it seems the aim was to end the controversy over if the courts should be also play a role in matters of politics when it comes to elections. The decision covers the fact gerrymandering or manipulating districts for political advantage has existed longer than the Union. So, where is the line when it become a legal issue? It seems Roberts says it's up to Congress to enact change not the courts in this case, as adding the courts to this doesn't actually resolve a legal issue but rather drag the courts into partisan politics.

Also, racial gerrymander was not excluded from judicial review. Perhaps it just means states have to be sneakier with their racial districting to be ok, but the South Africa example is a red herring.

The instructive part of the South African example wasn't the racial part of it, but that it was possible for an extreme political minority to lock a majority out of power indefinitely using gerrymandering. Once they did so, it would be unreasonable to expect them to democratically decide to relinquish the power they took. But of course, it's now possible for politicians in the US to engage in racial gerrymandering with greater ease than before. Because like in South Africa, racial identity and political preference are closely aligned, so if you want to keep blacks from having power, just say you were trying to keep Democrats from having power. You'll accomplish the same project.

That the courts have methodology for determining an unacceptable racial gerrymander puts lie to Roberts argument that the courts cannot have tools to make determinations in this regard for similar extreme partisan gerrymandering. A more consistent approach would've been to strike down the courts ability to deal with racial gerrymanders as well, but Roberts is a highly political justice and that's bad politics. Roberts decision accomplishes this dodge by focusing on outcome based methods of detecting partisan gerrymanders when he was presented with a variety of methods for determining that a discriminatory gerrymander occurred that are clearly focused on equality of opportunity. This is the same as in racial gerrymanders. His decision was tackling a giant strawman in that regard, and a strawman that weirdly could've, but wasn't turned on racial gerrymandering just the same.

[_honorentheos]

Your point is addressed in the syllabus to the ruling:

(b) Any standard for resolving partisan gerrymandering claims must be grounded in a "limited and precise rationale" and be "clear, manageable, and politically neutral." Vieth, 541 U. S., at 306-308 (Kennedy, J., concurring in judgment). The question is one of degree: How to "provid[e] a standard for deciding how much partisan dominance is too much." LULAC, 548 U. S., at 420 (opinion of Kennedy, J.). Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Such claims invariably sound in a desire for proportional representation, but the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. It is not even clear what fairness looks like in this context. It may mean achieving a greater number of competitive districts by undoing packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But it could mean engaging in cracking and packing to ensure each party its "appropriate" share of "safe" seats. Or perhaps it should be measured by adherence to "traditional" districting criteria. Deciding among those different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments. And it is only after determining how to define fairness that one can even begin to answer the determinative question: "How much is too much?"
The fact that the Court can adjudicate one-person, one-vote claims does not mean that partisan gerrymandering claims are justiciable. This Court's one-person, one-vote cases recognize that each person is entitled to an equal say in the election of representatives. It hardly follows from that principle that a person is entitled to have his political party achieve representation commensurate to its share of statewide support. Vote dilution in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. That requirement does not extend to political parties; it does not mean that each party must be influential in proportion to the number of its supporters. The racial gerrymandering cases are also inapposite: They call for the elimination of a racial classification, but a partisan gerrymandering claim cannot ask for the elimination of partisanship.

[_EAllusion]

Your point is addressed in the syllabus to the ruling:

(b) Any standard for resolving partisan gerrymandering claims must be grounded in a "limited and precise rationale" and be "clear, manageable, and politically neutral." Vieth, 541 U. S., at 306-308 (Kennedy, J., concurring in judgment). The question is one of degree: How to "provid[e] a standard for deciding how much partisan dominance is too much." LULAC, 548 U. S., at 420 (opinion of Kennedy, J.). Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Such claims invariably sound in a desire for proportional representation, but the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. It is not even clear what fairness looks like in this context. It may mean achieving a greater number of competitive districts by undoing packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But it could mean engaging in cracking and packing to ensure each party its "appropriate" share of "safe" seats. Or perhaps it should be measured by adherence to "traditional" districting criteria. Deciding among those different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments. And it is only after determining how to define fairness that one can even begin to answer the determinative question: "How much is too much?"
The fact that the Court can adjudicate one-person, one-vote claims does not mean that partisan gerrymandering claims are justiciable. This Court's one-person, one-vote cases recognize that each person is entitled to an equal say in the election of representatives. It hardly follows from that principle that a person is entitled to have his political party achieve representation commensurate to its share of statewide support. Vote dilution in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. That requirement does not extend to political parties; it does not mean that each party must be influential in proportion to the number of its supporters. The racial gerrymandering cases are also inapposite: They call for the elimination of a racial classification, but a partisan gerrymandering claim cannot ask for the elimination of partisanship.

You have it reversed. The point I'm making is addressing this. I'm saying it is a strawman argument. It's an egregious strawman if you read the briefs going into the case. He flat out misrepresented or ignored the arguments related to the case in this reasoning. Racial gerrymanders aren't determined by looking if racially proportional outcomes have been achieved. They're looked at by trying to find evidence that racial gerrymanders occurred to determine if racial groups have had their opportunity to translate voting into representation suffciently harmed. This takes the form of looking for statistical evidence of "cracking" and "packing" demographics and evidence of motive. There is no reason this can't be done in the case of partisan gerrymanders and the arguments related to it don't rest entirely on proportional outcome as a measure of fairness or as evidence of harm. You can see lots of evidence of an extreme gerrymander before an election even takes place. Racial gerrymanders and partisan gerrymanders both have to draw a line for how much is too much, and if there is no coherent way to say that this can be done in the former case, but not the latter.

[_honorentheos]

This issue is that racial gerrymander has a target of zero occurances while there is no reason or rational whereby partisanship can be eliminated from politics. Certainly not by the courts. You intuit fairness is the underlying principle, Roberts says it can't be shown what fairness looks like unlike with racial gerrymandering which looks like racial discrimination being eliminated.

[_EAllusion]

This issue is that racial gerrymander has a target of zero occurances while there is no reason or rational whereby partisanship can be eliminated from politics. Certainly not by the courts. You intuit fairness is the underlying principle, Roberts says it can't be shown what fairness looks like unlike with racial gerrymandering which looks like racial discrimination being eliminated.

There is no hard line where a district boundary goes from "fair" to "unfair" based on racial makeup. Courts that address racial gerrymanders do not have as a goal, nor the ability to equalize racial representation in political boundaries. They merely look for when evidence of a too extreme gerrymander has occurred with the purpose/consequence of racial discrimination and strike them down. It is equally possible to do this when the discrimination is aimed at the ideology/partisan leaning of voters rather than their racial makeup. Fairness in this context is when there isn't ideological discrimination in political boundary drawing that is too extreme. You have to be able to have some guidelines for what "too extreme" looks like, but this is a problem for racial and ideological/partisan discrimination. Briefs offered a few different methods for making that determination, and it absolutely was not the case that they simply focused on proportional outcomes.

As I said above, this also just allows backdoor racial discrimination in political boundary drawing anyway. That's exactly what occurred in the North Carolina example that was addressed in this case. North Carolina drew political and passed a series of voter suppression policies that targeted their black population with surgical precision to reduce their political power. When they were struck down an racially discriminatory grounds, they drew maps that were about as equally oppressive to black voters, but overtly asserted their motive was to discriminate against Democrats. Blacks just so happen to be mostly Democrats, so...

Roberts is just greenlighting new Jim Crow.

[_honorentheos]

I don't see Roberts in that light at all. He seems interested in preserving the courts integrity and accordingly seems to not make many people particularly happy all the time. Again, the ruling clearly says there is simply no clear aim for the court to use to define what would be fair when it comes to partisan gerrymander. It has a history in the US that predated the nation and is not something considered protected against by the Constitution. The Constitution says it's the job of Congress to address issues with the states when it comes to elections. Racial gerrymander, OTOH, falls under discrimination of a protected class. The court has a clear pergorative on that issue. You're arguing that the courts need to be the voice of reason where there is no clear way to define what is fair. You have one that you think is right but that's based on your intuition and ideals. Do I think gerrymandering is become extreme and needs addressed? Absolutely. But the argument intended to protect the institutions of democracy, flawed or slow moving as they are, is a valid argument. The courts aren't the correct place to address the problems. Congress is.