Recent signals from the Court suggest extreme politics may step on voting rights.
The U.S. Supreme Court, dominated by a Republican-appointed majority, is poised to issue a series of voting rights rulings this spring that will set the stage for elections for years to come.
The majority of these cases involve gerrymandering -- a process in which legislatures, in states with one-party rule, draw electoral districts to lock down their power after the once-a-decade U.S. Census. They do that by aggressively segregating reliable voters, typically "packing" their base into easily won seats; while "cracking" their opponent's voters into multiple districts. Such mapmaking can give its author's party a starting-line advantage of 6 percent or more with likely voter turnout.
There are two kinds of gerrymandering cases before the Supreme Court. Both date to maps drawn in 2011. The first concerns race-based cracking and packing, which is illegal, but has been used by the GOP in Texas (where a case that's been litigated for years will finally be heard) and in North Carolina (where the Court last year ruled against the GOP; but that was before Justice Neil Gorsuch was seated). The second category concerns excessive partisanship, which lower federal and state courts have found goes beyond politics-as-usual and is unconstitutional.
Voting rights advocates hope those federal and state rulings would give the Supreme Court some comfort in reining in excessive partisan gerrymanders. But recent signs suggest the opposite may be in the works. Predicting what the Court will do is dicey. But the worrisome signs are coming from a series of gerrymandering-based appeals that have landed on the Court's door since December. The Court has added new cases and issued orders in others -- recent moves that make advocates of more open elections nervous.
Those gerrymander butterflies come after an early January Supreme Court hearing in a case about the GOP's overly aggressive voter purges in Ohio, which investigative reporters at Reuters showed were aimed at undermining the state's urban-centered Democratic turnout. In that case, too, the Court's swing justices appeared to ignore the purge's partisan motives.
Taken together, the signals--as seen in orders in gerrymandering cases and comments from the bench during the Ohio voter purge case--suggest the Supreme Court could soon issue what could be anti-democratic rulings affecting the 2018 election, the 2020 election and the drawing of political maps for the 2020 decade.
Worse Than Bush v. Gore?
In 2000, the Supreme Court stopped a presidential recount in Florida. It ignored one section of the U.S. Constitution saying elections are to be state-run and instead held that differing recount protocols in different Florida counties meant that the presidential candidates were not being treated equally under the law (another constitutional guarantee). Besides appointing George W. Bush president, that rationale and intervention astonished the legal profession and the public.
In recent days, the Court is suggesting it may again assert itself in a big case where the issues involve state elections and a state constitution -- in other words, where there's no federal role or law. The Pennsylvania Supreme Court recently concluded that the U.S. House districts drawn by Republican legislators in 2011 were unconstitutional under its state Constitution. Pennsylvania Republicans appealed to the U.S. Supreme Court, leading Justice Samuel Alito to order both sides to prepare legal briefs.
As Mark Stern wrote in an analysis for Slate, "Because the Pennsylvania Supreme Court decision involved only state law, Alito should've denied the request outright. Instead, he has ordered voting rights advocates to respond, raising the real possibility that a majority of the justices will vote to halt the ruling. If they do, the intervention will mark an extraordinary expansion of the court's power to prevent states from protecting their residents' voting rights."
Stern explained further:
"To understand why the U.S. Supreme Court's intrusion would be so radical here, it's important to remember a key feature of the Pennsylvania Supreme Court's holding. The court did not rule that the state's gerrymander infringes upon any provision of the U.S. Constitution. Instead, the court held that partisan redistricting runs afoul of the Pennsylvania Constitution, which guarantees 'free and equal' elections as well as an unusually robust right to free expression and association. These protections go beyond the rights of free speech and suffrage contained in the U.S. Constitution...
"And yet, here we are: Alito indicated that he takes this appeal seriously by ordering a response, suggesting that five justices may vote to freeze the Pennsylvania Supreme Court's ruling... Alito should have dismissed it immediately. His willingness to entertain this appeal instead bodes poorly for both democracy and federalism. The U.S. Supreme Court has no business forcing Pennsylvania voters to languish under a gerrymander that can't pass muster under Pennsylvania law."
Stern is not alone in sounding what could be a serious alarm should the Supreme Court step into the Pennsylvania case.
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