Seeing the Round Corners

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October 28, 2021

                   FOR THE PEOPLE ACT OF 2021

H. R. 1:  An Act to expand Americans access to the ballot, reduce the influences of big money in politics, strengthen ethics rules for public servants and implement other anti-corruption and for other purposes.

The Act is very lengthy and detailed, and should be read by any American planning to vote. The Act is divided into divisions:  Division A – Voting; Division B – Campaign Finance; and Division C – Ethics.

The Brennan Center for Justice was referred to in last week’s column. The For the People Act of 2021 is vital to America’s voting integrity and urged its passage:  “Unless that happens, we risk another decade of racially, politically discriminating line drawing.”

Today’s column presents the most relevant of case law covering gerrymandering and is provided courtesy of the Brennan Center for Justice. The Brennan Center noted that a “basic objection to gerrymandering of any kind is that it tends to violate two tenets of electoral apportionment – compactness and equality of size of constituencies. The significance of the latter principle was set forth in a U. S. Supreme Court ruling issued n 1962.

1962 – Baker v. Carr:   The United Supreme Court held that the failure of the legislature of Tennessee to reapportion state legislative districts to take into account significant changes in district populations had effectively reduced the weight of votes cast in more populous districts, amounting to a violation of the equal protection of the Fourteenth Amendment.

1963 – Gray v. Sanders:  The Court articulated the Principle of “one person, one vote” striking down Georgia’s county-based system for county votes in Democratic elections for the office of United States Senator.

1964 - Wesberry v. Sanders:  The Court declared that congressional electoral districts must be drawn in such a way that, “As nearly as is practicable, one man’s vote in a congressional election is to be worth as much as another’s.”

1964 - Reynolds v. Sims:  The court affirmed that “the Equal Protection clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.”

1986 - Thornburg v. Gingles: The Court ruled that in a gerrymandering case based on race, such practices are incompatible with Section 2 of the 1965 Voting Rights Act (as amended in 1982) which generally prohibits voting standards or practices whose practical effect is that members of racial minority groups “have less opportunity than other members of the electorate to...elect representatives of their choice.”

1993 - Shaw v. Reno:  The Court ruled that the electoral districts whose boundaries cannot be explained except on the basis of race can be challenged as potential violations of the equal protection clause.

1995 - Miller v. Johnson:  The Court held that the equal protection clause also prohibits the use of race as the “predominant factor” in drawing electoral-district boundaries.

The Brennan Center pointed out that until the 1980’s, disputes regarding political gerrymandering were generally considered nonjusticiable (not decidable by federal courts) on the presumption that they presented “political questions” that are properly decided by the legislative or the executive branch.

1986 – Davis v. Bandemer:  In this case, a plurality of the Supreme Court held that political gerrymanders could be found unconstitutional (under the equal protection clause) if the resulting electoral system “is arranged in a manner that will consistently degrade a voter’s influence in the political process as a whole.”

A majority of the Court also agreed that the instance of gerrymandering before it did not display any of the “identifying characteristics of a nonjusticiable political question” that had been laid out in Baker v. Carr, including, as the Baker Court had put it, “a lack of judicially discoverable and manageable standards for resolving it.”

Although the majority in Bandemere could not agree on what standards should be to adjudicate challenges to political gerrymanders, it refused to accept that none existed, declaring on that basis that “we decline to hold that such claims are never justiciable.”

2004 – Vieth v. Jubelirer:  A plurality of the Court potentially embraced what the Bandemere Court had declined to hold, on the grounds that “no judicially discernible manageable standards for adjudicating political gerrymandering claims have emerged” since the Bandemere decision.

Justice Anthony Kennedy sided with the plurality in rejecting the challenge to the political gerrymander in question, and then asserted that it had not been long enough since the Bandemere decision to conclude that no suitable standards could ever emerge (“by the time line of the law, 18 years is rather a short period|”).

Justice Kennedy also pointed out to the rapid development and routine use of computer-assisted districting [redistricting], and argued that such technologies “may produce new methods of analysis that...would facilitate court efforts to identify and remedy the burdens” imposed by political gerrymanders, “with judicial intervention limited by the derived standards.”

2018 Gill v. Whitford:  Such a standard was proposed restricting law enacted by the Wisconsin redistricting law enacted by the Republican-controlled legislature following the 2010 decennial census. In that case, the plaintiffs argued that the discriminatory effects of the redistricting plan could be measured objectively by comparing the “efficiency” of votes cast for Republican or Democratic candidates in state legislative elections since 2012.

Political gerrymandering characteristically results in a greater number of “wasted” votes for the disfavored party (i.e., votes for a losing candidate or votes for a winning candidate in excess of the number needed to win), a discrepancy that can be represented as an “efficiency gap” between the Parties when the difference between that efficiency gap of 7 percent or greater were legally significant because they were more likely than smaller gaps to persist through the 10-year life of a redistricting plan.

The Court’s ruling, however, did not consider whether the efficiency gap amounted to the “judicially discernible and manageable” standard it had been waiting for. Instead, the justices held unanimously (9-0) that the plaintiffs lacked standing to sue, and the case was remanded (7-2) to the district court for further argument.

At this point is where the Court’s position that “partisan gerrymandering claims present political questions beyond the reach of the federal courts” came about. This position was taken following Justice Kennedy’s retirement, when the Supreme Court once again took up the issue of the justiciability of political gerrymandering claims in Rucho v. Common Cause of 2019. The Court’s conservative majority, over the bitter objections of its more liberal members, made the declaration (5-4) that “partisan gerrymandering claims  present political questions beyond the reach of the federal courts.”

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