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Latest Op-ED: Richmond Times: Why a Constitutional Convention is a REALLY Bad Idea

Many thanks to the folk at the RTD and the Scholars Strategy Network for working with me on this.

The threat of a convention is real.  The country is perilously close to calling one–and no one seems to notice.  This would precipitate chaos.  There would be no winners.  Read on here:  https://www.richmond.com/opinion/their-opinion/guest-columnists/mark-rush-column-the-last-thing-we-need-right-now/article_b4b9459c-49ba-512a-9d21-6e923a926161.html  This little cartoon from New York sums it up nicely.


Reading Supreme Court Decisions…and Reading About Them

June has passed.  In an annual ritual that marks the beginning of summer, the Supreme Court released its final opinions on gerrymandering, cake decorating, union rights and so forth. The question that looms every year is whether people will read the decisions or read about them.

There is no question that most Court decisions are hardly bedtime reading.   They can be long, technical treatises on very arcane or minute questions of law. Few people have actually read from beginning to end.  Accordingly, it is vitally important to trust those in the media who would tell us what the decisions mean.  Sadly, the media frequently lets us down.  As a result, the newsreading public are misled and political discourse suffers.

A clear example of this occurred this term. In response to the Supreme Court’s decision in Sessions v. Dimaya, press and media outlets proclaimed that President Trump’s deportation program had been stymied by his most recent appointment to the Court, David Gorsuch.

Nothing could be further from the truth.

In fact, the most amazing (and disheartening) aspect of the Dimaya decision was the extent to which media outlets across nations and the political spectrum misleadingly hailed the decision as a defeat for Trump.  No matter where you looked—the Guardian, Politico, the Washington Post, the National Review…the list goes on—it seemed that rump had suffered a defeat.  The Weekly Standard did get the decision right.  It seems, however, that few others took the time to read the Court’s—and particularly, Gorsuch’s—words.

It is true that the Court struck down part of the Immigration and Nationality Act (INA) because its text was too vague.  It is therefore true that it overturned the decision of an immigration judge to deport James Dimaya despite his commission of several felonies.  Finally, it is true that Justice Gorsuch joined a five-vote majority to render the decision. But, neither Gorsuch, nor Justice Kagan (who wrote the opinion) spoke out against the president’s deportation program.

Instead, the real target of this decision was Congress.  The Court chastised Congress for writing a law that was so vague that judges were left to their own devices to decide whether a particular crime “involves conduct that presents a serious potential risk of physical injury to another.”  Gorsuch and Kagan agreed that, depending on the jurist, virtually any crime could meet this definition.  As a result, they based their conclusions on an earlier decision in which Justice Scalia came to the same conclusion: vague laws such as this violate Due Process as well as Separation of Powers.

They threaten Due Process because no one can really know what the law means.  This is a formula for arbitrary government.  They violate Separation of Powers because they invite judges and bureaucrats to do the work that Congress should have done when it writes a law: use clear language to guide those who must interpret and apply the law.

In fact, Gorsuch took pains to emphasize the limits of the decision. “Vagueness doctrine,” he said, “represents a procedural, not a substantive demand.”  As a result, the legislature may act “toward any end it wishes” so long as it does so “with enough clarity that reasonable people can know what is required of them and judges can apply the law consistent with their limited office.”  Accordingly, the Court cast no judgment on the deportation agenda; it simply asked Congress to do its job the way any accountable branch of the government should.

In the end, it was a misrepresentation to say that the Court challenged the President.  The Court emphasized the importance of clear language so that those who read laws can understand and interpret them accurately.  Those who misleadingly suggested that the Dimaya decision was about Trump might do well to read the decision carefully.  They would be reminded of the importance of nonarbitrary government and the responsibility of the press to inform citizens accurately so that they can hold the government accountable.

The Supreme Court got it Right on Gerrymandering

That title is not a popular way to start a piece on the Supreme Court or gerrymandering.  But, despite the torrent of outrage flowing through the press and cyberworld, I’m taking a contrarian view and suggesting that the Court got it right.

The Wisconsin redistricting case, Gill v. Whitford, hinged on the utility of a new measure of partisan fairness called the “efficiency gap.”  It was created by Nicholas Stephanopoulos and Eric McGhee as a way to measure and compare the number of “wasted votes” cast for each political party in state legislative or congressional elections.  The efficiency gap has many merits.  It is simple, easy to explain and understand and easily applied to election results.  It also does not get to the heart of the problem of gerrymandering.

The Court pointed out that the efficiency gap is an aggregate measure.  It fails, therefore, to take into account the conditions in particular legislative districts.  In some cases, votes may be wasted because voters are indeed “packed” into districts where they comprise an overwhelming majority.  In others, they may be cracked among several districts so that they can never elect a candidate of their choice.  Both of these practices were employed at the expense of minority voters during one of its darker periods of racial discrimination.

But, partisan votes are different.  In some cases, it may appear that votes are wasted because an incumbent is so popular that she scares off any partisan opposition.  Alternatively, it may be the case that a party organization is so decrepit that it cannot field a viable opposition candidate.  In some cases, it is simply not possible to draw a competitive district where votes are not wasted.  In Virginia, for example, it is almost impossible to draw a majority-minority district that comports with the Voting Rights Act and that is competitive.  Simply put, there is little to be gained in running a Republican candidate in a district that is designed to ensure that a minority candidate (who is also most likely to be a Democrat) is elected. As a result, the notion of “wasted votes” really is not helpful in the analysis of gerrymandering because one person’s wasted vote is another’s endorsement of a popular candidate.

Furthermore, the efficiency gap tells us little about the motivations that inform those who draw district lines.  A legislative district map that meets all notions of aesthetics can have the same efficiency gap measure as a map that looks like a Rorschach test.  Simply aggregating votes across a state does not tell us whether and how the organization of the electorate contributes to or against an unfair electoral system.

In the end, the Supreme Court has told lawyers and academics to do their homework better.  Statewide measures of vote counts are simplistic and ignore important details about how voters vote.  We are not a bunch of ciphers that enter the polls on Election Day and automatically pull the Democratic or Republican lever. We think about who the candidates are and how candidates that bear the same party label can differ radically in their positions on the issues.  Accordingly, a vote may be in favor of one candidate or against another.  It is therefore nonsensical to compare partisan votes cast in one legislative district to those cast in another.

In challenging lawyers and political scientists to undertake much more extensive analysis of how voters vote in our electoral system, the Court also invited them to prove that gerrymandering punishes voters because of their “association” (through casting a vote) with one party or the other. But, in our electoral system where we divided voters among districts in which they can choose among a limited slate of candidates, this will be an impossible task.  One’s “association” with a party will depend on who the party’s candidate is—and vice versa.  So long as we continue to use the antiquated single-member district system of elections, it will be impossible to tell whether a partisan vote is for or against a party or a candidate because we force voters to choose artificially between limited Election Day options.

If we really want to stop—or at least curtail—gerrymandering, we should use the Court’s decision to enact meaningful electoral reform.  A switch to ranked choice voting (as Maine used in its recent election) will give voters much more meaningful choices on Election Day and handcuff those who would look to gerrymander the electoral system.  The Court has invited Americans to improve the electoral choices.  Will we accept and put an end to gerrymandering?