In Thursday’s horrible Supreme Court decision, conservative justices basically opted the federal government out of constitutional issues involving legislative gerrymandering. And in doing that, they returned us to an early era of the United States in which some people are numerically disadvantaged on a dubious legal basis.
In overturning two lower court decisions that had thrown out maps in North Carolina and Maryland, the conservative majority's 5-4 ruling held that that there is no workable standard to determine by which the court could determine when such gerrymandered districts go too far. BUT: A third case involving a heavy GOP gerrymander in Wisconsin could have provided such workable standard. Observers expected the case would focus on whether an “efficiency gap” and other metrics provided by political scientists would meet the criteria set by Justice Anthony Kennedy in his concurring opinion in Vieth v. Jubelirer (2004), another partisan gerrymandering case.
That was a decision in which the Court sent back to a lower court the Wisconsin case, saying the plaintiffs couldn't prove they had legal standing -- that is, they couldn't allegedly prove they were personally harmed by gerrymandering. A raft of number-crunching experts working for the plaintiffs got right to work coming up with the workable standard that swing-vote Kennedy was looking for, and the case -- begun way back in 2015 -- was due to be heard in a federal court again just days from now.
In Wisconsin's 2018 Assembly races, Democrats won 54 percent of the statewide vote, but thanks to GOP gerrymandering, Republicans took 63 of 99 seats, a nearly two-thirds majority.
Oh, those poor, poor, helpless conservative justices on the Supreme Court! If only they had the power to do something about this obviously unfair situation! But, unfortunately, they've just banned themselves from dealing with the matter.
An original gerrymander of a sort was sewn into the draft Constitution before the country’s founding. Back in America's slave-holding days, southern states arranged a deal for agreeing to join the union. They were allowed to count each of their black and non-voting slaves as 3/5ths of a human being for legislative districting purposes, which meant slave states could have more representatives in Congress than voters in those states could possibly elect.
Well, we got rid of that awful bargain. But now, in Wisconsin, if you're a Democratic voter, as many African Americans are, conservative Republicans have arranged things so that your vote for a lawmaker effectively is only worth about 3/5ths of a GOP vote.
Ah, anti-progress! The original paradox of slaves not being citizens who could vote but whose existence could count as a partial citizen has now effectively been reworked for our supposedly far more modern and thoughtful society.
How convenient. Yesterday's ruling probably wipes out the Wisconsin case before justices have a chance to actually hear arguments on what might be the fabled working standard. But the conservatives on the bench probably didn't want to hear any of it, even though they kept echoing Kennedy’s call for a measuring standard they didn’t believe could be crafted. Now it’s likely they’ll never find out otherwise.
Politicians of all stripes know that stalling is a great tactic when they're faced with deciding a tough issue. Clearly, conservative Supreme Court justices love stalling as well. Back in 2000, conservative justices cut short the Florida recount in the Bush v. Gore presidential election because to their way of thinking this urgent issue was too big to hash out in a thoughtful, logical way. Yet today we have another batch of right-wing justices saying the issues in gerrymandering are too big for the court to handle whatsoever. Because they're political. But gerrymandering evades the accepted, normal procedure of American politics. So ... oh, never mind.
When it comes to seeking certainty, the conservatives on the Supreme Court always seem to have an excuse for doing the wrong thing -- and that's just about the only thing these days that is sure in life besides death and Republican tax cuts for the rich.