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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.
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?
This is another piece that I published on Whitford v. Gill, the gerrymandering case that the Supreme Court will hear this year. It is available at the Huffington Post Website
Many in the media suggest that this case presents a great opportunity for the Court to end the gerrymandering problem once and for all. This is due to the fact that the case is informed by a measure generated by my colleagues Nick Stephanopoulos and Eric McGhee called the “Efficiency Gap.” The measure is elegant and simple. But the media are misusing it and miscasting the case.
So long as we have discriminatory campaign finance laws and we use the winner-take-all electoral system, our elections will always seem to be gerrymandered. Incumbents will remain unbeatable, elections will be uncompetitive, districts will have bizarre shapes and voter turnout will be low.
There is a solution to this problem. But, it does not lie in any formula. We need to change our electoral system. To do so is simple.
I wrote this for my Huffington Post site here.
In short, I believe we have reached the point where it is clear that our current system of elections is arguably unconstitutional. It would take a tremendous effort to take a successful constitutional challenge to the Supreme Court. But, the Court itself has planted the seeds for such a challenge throughout its case law.
I published a commentary on the Supreme Court’s decision on 19 June to hear Gill v. Whitford (the latest partisan gerrymandering case) at HuffPost here.
The Supreme Court has lamented that there seems to be no clear formula for determining whether a redistricting plan constitutes a gerrymander. So, consultants and lawyers are now suggesting that they have found the holy grail of formulae.
There is no such formula. Worse than Macbeth’s “sound and fury…signifying nothing”, any such formula will be a quiet threat to democracy. It will promote even more litigation that is paid for by…tax dollars. Yet, elections will not improve.
We do need to stop the madness…
The media are split with regard to what the decision portends. Some key facts: NC’s population is 21% black. The state has 12 congressional districts. So, if it is geographically possible, the state needs to produce two congressional districts that give black voters the opportunity to elect the candidate of their choice.
This used to be simpler. Construct a district with enough black voters to comprise a majority of the voting population (and maybe a bit more to account for nonvoters) and you would have a majority-minority district. If the black voters acted as a block, they could elect a candidate of their choice. If you put too many black voters in a district, it would be an unconstitutional racial gerrymander that “packed” too many voters into the district. Too few, and it was a district that “cracked” voting power.
Over time, incumbents, lawyers and political consultants have looked to tweak this by asserting that, after a while, racial divisions might heal or melt away and, as a result, white voters might come around to support black candidates. If so, then it theoretically becomes unnecessary to create a “majority-minority” district. Under these “crossover” circumstances, a district with only 40 or 45% black voters might be able to elect a candidate of the black voters’ choice. If so, creating a district with 55% black voters would now be an unconstitutional “packing” gerrymander.
The NC redistricting case boiled down to whether or not it was necessary to create a majority or in influence district. Theoretically, if NC could create two solid influence districts, those extra black voters could be moved into another district where they could wield some solid influence.
Maybe. But, at the end of the day, NC needs to create TWO districts that can elect a candidate of black voters’ choice. So (and theoretically, this is good news), those extra black voters that we no longer need to create majority minority districts are simply “filler people” (as one scholar described long ago) that we use to make sure district populations are equal.
(I admit that the language sounds less than empathetic. But, these are the terms of the trade.)
Problem is, then, the case boiled down, metaphorically, to a dispute about whether those districts should be 47 or 45 or 51% black. At the end of the day, the extra voters would still be pushed into other districts where they would be minority voters. So, no matter what, NC had to create opportunities to elect two black-preferred candidates.
NC did just that. Yet, this case was litigated up to the Supreme Court where the justices sent it back…so that the lines could be redrawn and, no doubt, another round of litigation will take place. This is 2017. Place your bets: will this be resolved before the next census?
One can only imagine the amount of taxpayer dollars going towards this litigation—to fight over a percent or two when the districts must be created anyway. Litigants and consultants are making a lot of money to do essentially nothing to improve the fate of any voters. This is unethical. We are expending tax dollars at the expense of the voters. This is endless litigation. The stuff of Dickens’s BLEAK HOUSE.
The Supreme Court finished its term with a vitally important – and unfortunate – decision concerning religious freedom.
In Burwell v. Hobby Lobby, the court ruled 5-4 that for-profit corporations could opt out of generally applicable laws if they could demonstrate that abiding by the law would “substantially burden” their free exercise of religion. The high court ruled that Hobby Lobby and other like-minded businesses could exempt themselves from the Affordable Care Act’s requirements concerning contraception.
Hobby Lobby’s owners argued that the ACA substantially burdened their religious freedom because its requirements were objectionable to their beliefs. In this respect, the case seemed to be a classic example of a religious dissenter confronting the power of government. It was not. Instead, it embodied a clash of visions of religious freedom. The court had to choose between them.
Compliance with the ACA is not a burden on religious practice. If you choose to open a business, you must comply with rules of the marketplace that include everything from building codes to sanitation rules to employment laws. Abiding by provisions of the ACA that one does not like is no more of a burden on religious freedom than complying with speed limits or paying tolls when you are on the road.
Hobby Lobby argued that the Religious Freedom Restoration Act exempts it from religiously objectionable laws. In agreeing with this argument, the court deviated radically from prior rulings dealing with religious use of drugs in Oregon (Employment Division v. Smith) and religious exemptions from historical preservation laws (City of Boerne v. Flores).
In those cases, the court ruled that it was contrary to religious equality to privilege religious exemptions from laws. Thus, it would be unfair to allow religious groups to use drugs with impunity while subjecting nonbelievers to criminal prosecution. It would be unfair to allow a church to ignore zoning laws while forcing a neighboring business to abide by them. In siding with Hobby Lobby, the court has opened the door to religious exemptions that it had previously denied.
More important, Hobby Lobby’s exemption constitutes a great potential infringement on the beliefs (religious or not) of employees who do not share their employers’ convictions. In essence, siding with Hobby Lobby enables businesses to qualify the terms of employment on the basis of their owners’ or board members’ religious beliefs.
In many ways, the decision flies in the face of some of the great civil rights decisions of the 20th century. Under the last vestiges of Jim Crow, some business owners sought to deny African Americans (or anyone else) employment, entry into their businesses, service at lunch counters, hotels, movie theaters and so forth on the premise that a business is one’s private property and that the owner is free to serve or deny service to whomever he or she chose.
The court ruled in all of those cases that when you enter into the marketplace, you must leave some of your private beliefs and convictions behind – regardless of their source – and play by generally applicable rules of fairness.
Of course, religious convictions and discrimination are radically different. But, when it comes to employment, business, or access to government benefits, neither can serve as a barrier to customers or employees.
The court did emphasize that the decision applies only to the contraception requirement. Nonetheless, the decision encourages any business owner with a religious objection to a law or government program to look to secure an exemption. Workers could gain or lose rights and access to government benefits whenever they change jobs or employers or even if their company is purchased or taken over.
No doubt, Hobby Lobby’s defenders will celebrate the decision as a great victory for religious freedom.
In fact, it is the opposite: it will create religious tension where there now is none and it will ensure that access to the marketplace and government benefits is subject to religious restrictions. This is an unfortunate decision. Let’s hope the Supreme Court has the chance to revisit – and reverse – it soon.