Donald Trump is a horrible person and a destructive President with autocratic ambitions but I think history will show that America’s democratic project really ended when Mitch McConnell refused to seat Merrick Garland on the Supreme Court. Today, the Supreme Court basically gave states even more freedom to radically gerrymander electoral districts for racial and partisan advantage while making it even harder for that system to be challenged in court. The specifics of the cases involve the gerrymanders in Texas and North Carolina.
In Texas, the Court overruled lower courts’ decisions that four districts were an unconstitutional racial gerrymander, instead ruling that only one of those districts fit that criteria. The decision was remarkable for the way it breached existing protocol for determining the Court’s judicial review. In addition, Alito’s opinion established a new standard of assuming “good faith” on behalf of legislatures in drawing new districts. Normally, the procedure would then be to tell the lower court to revisit the case based on this new standard. Instead, the majority basically ignored the evidence presented at the lower court and decided that the Texas legislature did not discriminate based on their new interpretation.
Sotomayor, who has become the staunchest defender of voting rights on the Court, wrote another barnburner of a dissent, saying the majority “out of its way to permit the State of Texas to use maps that the three-judge District Court unanimously found were adopted for the purpose of preserving the racial discrimination that tainted its previous maps.” For many voters in that one unconstitutional district at least, this ruling means that they will have been essentially disenfranchised by an illegal gerrymander for every election this decade. This is our democracy at work.
The decision was yet another 5–4 decision with the Court’s conservative majority once again overruling the lower courts’ decision. Neil Gorsuch, Garland’s fill-in and the Federalist Society’s million dollar judge, proved he is absolutely consistent in being hacktacular, joining Thomas in a concurring opinion declaring that the Voting Rights Act does not prohibit racial gerrymandering. That is remarkable in that the VRA was specifically written to address racial voter suppression. Most disturbingly, however, is the fact that Anthony Kennedy has voted with that conservative majority in every important case this year, including every one involving the suppression of voting rights.
Separately, the Court also unwound a lower court ruling that the North Carolina electoral maps were an unconstitutional partisan gerrymander. They ordered the lower court to revisit their decision in light of the Court’s recent decision in the Wisconsin partisan gerrymander case in which the Court ruled the claimants did not have standing to bring the case. Presumably, that will be the case with the claimants in the North Carolina case.
While the Wisconsin ruling made it more difficult for partisan gerrymander cases to even be brought before the Court, the Texas ruling makes racial gerrymandering even more difficult to win. The majority ruling declares that the courts must now “presume good faith” by the legislature in their redistricting efforts.
As Rick Hasen writes, “because race and party overlap so much in places like Texas, what looks like racial motivation may be partisan motivation. The upshot of this analysis is that it is going to be well near impossible for plaintiffs to prove that states have engaged in intentional racial discrimination so as to put those states back under federal supervision for voting under Section 3. With this thumb on the scale in favor of states, and the ability to say they were just being partisan and not engaged in race discrimination, they will have a freer rein to engage in discriminatory action.”
With the recent decision to allow Ohio to conduct voter purges, the Court is inviting states to use every available voter suppression tool to manipulate the vote going forward. The NY Times today illustrates the various tactics that the state of Alabama has taken to suppress minority and Democratic votes. Those tactics include photo ID, closing offices in minority areas where photo ID could be obtained, proof of citizenship for state and local elections, closing polling places in predominately minority areas, purging voter rolls, and restricting information on felon re-enfranchisement. Today the Court virtually invited the state to also engage in racial and partisan gerrymandering.
Our electoral system is fundamentally flawed as it is, just with the Electoral College. In state after state, election after election, Democrats win more votes than Republicans and actually lose political power. It’s happened in Wisconsin, in Virginia, and in the country as a whole in 2000 and 2016. Today the Supreme court came very close to saying that there is no redress for this situation and is actually encouraging a process to make things worse. As Sotomayor wrote in her dissent, “The Court today does great damage to that right of equal opportunity. Not because it denies the existence of that right, but because it refuses its enforcement.” That has been the Republican and the Court’s strategy for at least a decade.
When a sufficient number of citizens become convinced that it is futile to fight for change within the system and that even winning elections will not provide the political power promised, then the political class will have much more to worry about than just not being served in some fancy food-to-table restaurant. Today’s actions by the Court, along with Donald Trump’s autocratic tendencies, may bring those days a lot closer than we think.
Originally published at tidalsoundings.blogspot.com on June 25, 2018.