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Wednesday, April 21, 2021

Commentary – Thoughts about the De Facto approval of gerrymandering by the Supreme Court

Recently the US Supreme Court rendered a decision that violated the original intent of the founders of our Constitution. The decision also ignored precedent of a previous Supreme Court (in 1962), which had invoked the concept of “one person-one vote.” In the process the current Supreme Court has delivered a body blow to democracy in the United States; this likely will have adverse effects to our country. I explain in the following.

The court’s decision concerned the legality of drawing boundaries of voting districts in the states, so as to give one political party an advantage over the other during elections. This procedure of drawing of boundaries, gerrymandering, has become extreme in some states. Excellent examples are in North Carolina, a Republican state, and in Maryland, a Democrat state. 

The judges of the majority 5-to-4 Supreme Court decision were Chief Justice Roberts and the four of his fellow conservative judges. Their decision allows the practice of gerrymandering to remain in the hands of the individual states. In the writeup justifying that decision, Roberts states “Excessive partisanship in districting leads to results that reasonably seems unjust….The fact that such gerrymandering is incompatible with democratic principles does not mean that the solution lies with the federal judiciary.” Roberts also claims that the responsibility of curbing gerrymandering lies completely within the authority of the individual states.

In essence, the Roberts’ Supreme Court has asked the offending states to self-correct their undemocratic behavior, or for the US Congress to legislate laws to prevent gerrymandering. I suspect that nearly all thinking people believe that expecting the offenders to self-correct defies common sense, and is completely irrational. And the current US Senate, controlled by Mitch McConnell, is not about to approve of laws to prevent gerrymandering; indeed, McConnell has undoubtedly been a force in the tactic of gerrymandering used in many Republican states. 

What will probably happen in the next few years is that the red states will become more red, and the blue more blue. The last thing this country needs is for a bunch of states to become partisan fiefdoms that increasingly repress the rights and desires of minorities. Who knows what that will lead to.

Such repression was of great concern to the founders of the US Constitution. Indeed, the leader in development of the Constitution, and of the structure and roles of the three branches of federal government, James Madison, wrote extensively about this matter. (For verification, go to page 97 and thereabout in the treatise about Madison by Noah Feldman, titled The Three Lives of James Madison: Genius, Partisan, President.) In regard to the future role of a federal house of representatives, Madison is quoted as saying “Whenever therefore an apparent interest or common passion unites the majority, what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?” 

The historic record is replete with such statements by the founders about rights of minorities and individuals. Finally, the founders of the constitution decided upon what they thought to be an unbiased, nonpartisan method for electing members to the House of Representatives, which has evolved into the method used today. The formation of the House of Representatives was based on and made acceptable to the founders, owing to their thought that partisan politics would not be an important factor in legislation crafted by the House: in recent years that belief has turned out to be wildly in err.

Roberts and his four fellow judges have also gone against precedent of the Supreme Court, as in the case of Baker v. Carr in 1962. In that case the issue dealt with redistricting, based on population. The court then declared the notion of “one-person, one-vote” standard as basis for their decision. Roberts and fellow judges have just rejected that standard of fairness.

To recapitulate, Roberts and the four other conservative judges on the court have rejected the original beliefs and intent of the founders of the US Constitution, regarding the role of partisan politics in the House of Representatives. And they have rejected the notion of equal representation, used by a previous Supreme Court. And the Roberts’ group of judges has asked the guilty gerrymandering states to self-correct—which defies logic. And the McConnell-controlled Senate is not about to restrain gerrymandering, owing to political reasons. So, what can that mean about the motivation of Roberts and his fellow judges?

Only one explanation is plausible: the decision by the Roberts’ group was political—because a large majority of states are now in the hands of Republicans (30 for Republicans vs 18 for Democrats), and a significant portion has been severely gerrymandered the past several years.

I suspect in future years this gerrymandering decision and others by Roberts and his fellow conservative judges, who also claim to adhere to original intent of the founders, will be considered as drivers of friction and violence in this country, perhaps with dire consequences. Certainly the Roberts’ court has suffered major loss of credibility as an arbiter of equal justice under law.


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