Thursday, July 2, 2015

The SCOTUS Decision That Didn't Get All the Headlines

The biggest headlines of the last few days have gone to the SCOTUS decisions on the ACA and marriage equality, and to the assault on the Emanuel AME Church in Charleston, SC (plus the subsequent torching of other southern churches with predominately black memberships, and the ensuing debates about gun control, racism, and what has been inaccurately termed the “Confederate flag”). These are, indeed, the flashiest and splashiest news items, and it is perfectly reasonable that they should have dominated the headlines. It may well turn out, however, that the most important story of the last week has been, relatively speaking, overlooked.

Elkanah Tisdale’s rendering of the original Gerrymander.
On Monday of this week, the Supreme Court rendered its decision in Arizona State Legislature v. Arizona Independent Redistricting Commission. The 5-4 ruling, delivered by Justice Ruth Bader Ginsburg, upheld the authority of an independent commission to draw redistricting lines after each census. The commission in question (the AIRC) was established by the passage of Proposition 106, which Arizona voters approved by a 56-44 margin in 2000. Prop 106 removed this power from the state legislature, which, a majority of voters believed (no doubt accurately) had proved itself more interested in entrenching the political power of the party which happened to be in the majority at a given moment in time rather than in giving voice to the electorate.

Why is this a big deal? Because of gerrymandering. At least one Curmiphile has asked on the Facebook page for an explanation of exactly what that means, so here goes. The term dates from 1812, when Massachusetts Governor Elbridge Gerry sought to increase the sway of his Democratic-Republican Party against the Federalists by configuring electoral districts to suit his political desires. Federalists snarkily observed that one district resembled a salamander, and graphic artist Elkanah Tisdale obliged with a now-iconic sketch of the phenomenon. But, of course, if the term is barely two centuries old, the process goes back much further than that.

One major advantage gerrymanders have is that it seems a little counter-intuitive that there would be a problem. Majority rules, right? Well, actually, no. For the sake of argument, let’s say there are 50 voters electing five representatives, with 10 voters in each district; overall, the American Party gets 30 votes and the National Party gets 20. If we’re interested in proportional representation, then the Americans get three representatives and the Nationals two. But if the boundaries are drawn in such a way that they all break 6-4 for the Americans, then the Americans get all the representatives, and the Nationals are shut out. Conversely, we can imagine dividing the districts so that the Americans get all ten votes in both of two districts, with four votes in another and three votes each in the other two. That would leave the Nationals, despite their having only 40% of the votes, with a majority of the representatives. It’s easy to see how this process could lead to a party with a bare majority of the votes to get a super-majority of the legislators, or for a party with a majority of the votes to actually have fewer representatives than their opponents.

Indeed, both these phenomena occur with grim regularity. In the 2012 election, for example, over 1.4 million more people voted for Democrats for the US House of Representatives than voted for Republicans, yet the GOP wound up with a 233-202 advantage. About 60,000 more Pennsylvanians voted for Democrats than Republicans in US House races in 2012; the congressional delegation was 13 Republicans and 5 Democrats.

The Democrats aren’t exactly lily-white in all this, of course. There’s a good piece in Mother Jones written shortly after the 2012 election and referenced by Curmie shortly thereafter that suggests something of the scope of the problem in both directions. Richard Wolf and Gregory Korte of USA Today noted this week that “In 2012, Republicans won 53% of the vote, but 72% of the House seats in states where they drew the lines; Democrats won 56% of the vote but 71% of the seats where they controlled the process.”

Disturbingly, the GOP in particular seems especially proud of their collective efforts. Greg Abbott, then Texas’s Attorney General (and now, God forbid, its governor) even crowed about gerrymandering in a legal document. As Curmie noted a couple of years ago, Abbott maintained that the highly partisan redistricting he and his political cronies had perpetrated wasn’t racially inspired: it was merely “designed to increase the Republican Party’s electoral prospects at the expense of the Democrats.” Oh, well, that’s all right, then. You’re only trying to corrupt the electoral process? Well, as long as your motive isn’t racial, it’s fine. (Of course, African-Americans tend to vote for Democrats, so disenfranchising them simultaneously is and is not a racial issue. Either way, it’s unethical in the extreme.)

Not all of the problem is attributable to gerrymandering, of course. For example, if Wyoming, the nation’s least populous state at a little over 560,000 residents as of the 2010 census, is to have even a single representative in Congress, we’d have to increase the size of the House of Representatives by over 100 members if we wanted truly proportional representation. Hence, a representative from California will represent over 700,000 constituents, more than the total population of either Wyoming or Vermont. Conversely, Montana still gets only a single Congressperson, despite a population of over 900,000. (It gets even worse when we start considering electoral votes, but that’s a rant for another day.)

There’s also “unintentional gerrymandering.” We can all agree, for example, that urban areas tend more towards the Democrats. But if New York City alone has a dozen or more congressional districts, a good number of those highly-populated districts are surrounded by other like-minded voters. There’s no way around that other than creating yet more salamander-inspired monstrosities… and ultimately disenfranchising voters forced into minority (political) status in those newly-created districts.

Anyway, back in 2000 the folks in Arizona had had enough. So they passed a ballot initiative pulling redistricting authority from the state legislature. This was fine for a while, but then, in the aftermath of the 2010 census, the AIRC had the audacity to do its job. Nothing pisses off a partisan hack like then-governor Jan Brewer more than independent commissions acting independently. She tried a variety of tactics to remove the AIRC chair, to discredit the commission, and generally to stomp her feet and hold her breath because she wasn’t getting her way. The AIRC, you see, comprised of two Republicans and two Democrats with an Independent as chair, had proposed a map which pretty much assured the GOP of four safe seats and the Democrats of two, with three seats—OMG!—actually competitive.

Even this, however, wouldn’t have been enough to cause a furor, except that in the 2012 election, all three of those competitive districts went to the Democrats. Republicans won their pretty-much-guaranteed four seats by an average of about 33 points. The Democrats won their two expected blowouts and took all of the other three seats by an average of less than three points, helped in one case by the presence of a Libertarian candidate whose vote count exceeded the victory margin by over 50%. So the GOP did about 8.5 points better than the Dems statewide, but came away with a minority of the seats. This did not make them happy.

And they also had a Constitutional argument. The United States Constitution is—or at the very least seems to be—clear on this matter. Article I, Section 4 begins: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” And the state legislature wanted to exercise that authority.

So whereas everyone on both sides of the aisle except unethical asshats like Abbott (and his counterparts among Democrats) agrees that gerrymandering is a bad thing, it just might be that the Constitution forbids this particular remedy to the problem. The question, then, is what exactly the word “legislature” meant over two centuries ago.

In a strongly worded (one might even say “snarky”) dissent, Chief Justice Roberts, joined by the other three reliable conservative votes on the Court, points out that the 17th Amendment transfers the right to select U.S. Senators from “the Legislature” of each state to “the people thereof.” Clearly, then, even as late as 1913 there was a felt need to distinguish between legislatures and the electorate. He continues by making three salient points:
that “’Legislature’ was ‘not a term of uncertain meaning when incorporated into the Constitution…. What it meant when adopted it still means for the purpose of interpretation…. ‘A Legislature’ is ‘the representative body which ma[kes] the laws of the people.’”
and that: “the people of Arizona may exercise lawmaking power under their State Constitution…. Nobody doubts that. This case is governed, however, by the Federal Constitution. The States do not, in the majority’s words, ‘retain autonomy to establish their own governmental processes,’ if those ‘processes’ violate the United States Constitution. In a conflict between the Arizona Constitution and the Elections Clause, the State Constitution must give way.”
and that: “‘the fact that a given law or procedure is efficient, convenient, and useful . . . will not save it if it is contrary to the Constitution.’”
Taken together, these arguments are pretty persuasive. The majority opinion has something going for it, too, however. Yes, it is true that words change meaning over time. In Curmie’s field, for example, the Ancient Greek word hamartia meant something different (an error of judgment) to Aristotle than it had meant earlier (to miss the target, as in archery) or than it was to mean later (“sin,” by the time of the New Testament).

So the interpretation of the word “legislature” becomes singularly important. Justice Ginsburg points out that the “Arizona Constitution ‘establishes the electorate [of Arizona] as a coordinate source of legislation’ on equal footing with the representative legislative body.” She also cites legal precedent (Davis v. Hildebrant; Smiley v. Holm; Atlantic Cleaners & Dyers, Inc. v. United States; Wood v. Broom; Eastlake v. Forest City Enterprises, Inc.; Alden v. Maine) to argue that the term “legislature” has been interpreted by SCOTUS in the past to apply to all those elements involved in the creation of legislation—including the electorate and the governor, for example—and that states retain the right to adopt whatever “republican forms” they deem appropriate. She notes also that dictionaries of the period define “legislature” as, for instance, “the Authority of making Laws, or Power which makes them,” leaving at least a foot in the door for an argument that “legislature” didn’t always means what we think it means now.

Finally, she argues that “The dominant purpose of the Elections Clause, the historical record bears out, was to empower Congress to override state election rules, not to restrict the way States enact legislation,” and that “The Clause was also intended to act as a safeguard against manipulation of electoral rules by politicians and factions in the States to entrench themselves or place their interests over those of the electorate.”

In sum, then, Justice Ginsburg argues that “Arizona voters sought to restore ‘the core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around’…. The Elections Clause does not hinder that endeavor.”

Yeah, well, maybe. There is absolutely no doubt that upholding the AIRC’s ability to draw legislative maps, taken in isolation, furthers the cause of democracy. Wresting even some power in this regard from inherently partisan clutches, be they Republican or Democratic, strikes me as an intrinsically good thing. But regardless of Court precedent, it’s difficult to argue that “legislature” doesn’t mean… well… “legislature.” Pretending otherwise, even for a good cause, also corrupts the system by yes, politicizing the Court. It is not SCOTUS’s function to bring about a “good” result, but a Constitutional one. Curmie firmly believes that the U.S. Constitution is the greatest political document ever written. But that doesn’t make it infallible, and—as Curmie has argued in the past with respect to the antics of the Westboro Baptist Church, for example—what is Constitutional and what is just do not necessarily converge. This might be one of those moments.

On the other hand, SCOTUS has used even more strained reasoning towards less admirable ends: invoking the interstate commerce clause to legitimize federal sanctions against homegrown medical marijuana even where it is legal under state law, for example (see Curmie on this issue in October of 2011). But even when Curmie agrees with the pragmatic result (e.g., Roe v. Wade), the tortured legal logic required to get to a such a positive political consequence is troubling at best. Is there a time when the ends really do justify the means? It is precisely this dilemma that is raised by Curmie’s netpal Jack Marshall at Ethics Alarms. Like Jack, I think gerrymandering is “unethical and undemocratic.” But, also like Jack, I’m more than a little skeptical of the process at play in this case. All told, I think I’m probably a little more comfortable with the SCOTUS decision than he is. But only a little. If this truly does lead to a significant reduction in gerrymandering, it’s probably worth a relatively minor hit to the purely judicial reputation of the Court, if only because the political status quo is so flawed. The decision, however, means only that states can circumvent ultra-partisan redistricting, not that they must do so (the DOJ can exercise some influence, but of course it, too, has been a functionary of a partisan politics for at least the last three administrations).

Is the SCOTUS decision a net win? I’m cautiously optimistic. Very cautiously.


manjushri924 said...

Something went wrong with the system and Jack Marshall couldn't leave a comment on the page, so he asked me to post it for him. Here it is:

Excellent post, Curmie, and I am linking to it especially for the history lesson on gerrymandering. Nobody's mentioned it---wonder why?---but that evil gerrymandering is also responsible for a lot of black representatives in neighborhoods that the GOP wanted to purge of Democratic-voting minorities. Result? Safer, monolithic GOP seats, but more minority representation in the body itself.

The best way to minimize the injustices of drawing districts---and there is no way that won't create anomalies---is to increase the size of the House dramatically---which will also reduce the power of any individual member.

Phlinn said...

Good to see you blogging again. I'm slightly on the side of the decision. When the people as a whole are creating laws, they are legislating, and thus it is the legislature for the purpose of the law being enacted by referendum.

It seems somewhat similar to the way the militia can legally be defined as the entire able bodied populace.

That being said, I think the results in this particular case also suggest that the supposedly non-partisan commission wasn't really, although it could have been honest incompetence.