Sure–but in a reasonably fair system (and here I’m not talking constitutional issues, I’m talking about what’s desirable in a republic, BRICKER), you’d expect the percentages of representatives to map roughly to the percentage of people who vote for that representative’s party.
I know, I know, we vote for people, not party, or at least we should. But that’s not our reality now, and given the reality of party politics, I think what I said holds.
We can look at extremes: if Republicans got 90% of the votes but 0% of representation due to some bizarre trick Democrats pulled, I think we’d all agree that that’s not a healthy way to run a republic. Where do we draw the line on what IS fair?
Wherever it is, a situation like this–in which, if septimus’s math is right (and I’m too tired to make sense of it), Democrats receive about 1/3 of the representation you’d expect–is over the line.
I argue that the three-judge district court in Common Cause v Rucho and League of Women Voters v Rucho, consolidated, failed to correctly apply existing precedent, and the the Supreme Court will ultimately overturn their finding.
I also argue that the question of gerrymandering (absent violation of a statute) is non-justicible, meaning that it’s a political question that the courts should not decide.
This case got returned to the district court to be reconsidered in light of Gill v Whitford. Gill did not address the issue of justiciability, because it was resolved on other grounds. I am firmly convinced that had SCOTUS confronted the issue squarely, they would have – and will, when the case returns to them – decide thusly. But even absent that get-out-of-jail free card, I think there is a standing problem here.
Standing generally means that the federal constitution requires that federal courts cannot provide remedies except to plaintiffs that have cognizeable injuries in fact. Quoting Lujan v Defenders of Wildlife:
The plaintiffs here assert two theories: first, that they have a right to not be “packed,” into a district in which their preferred Democratic candidates will overwhelming win – the “wasted vote,” theory. This is complaint about the process, but NOT about an injury in fact. They have elected their favored candidate and any harm is not the sort of “particularized” injury that the courts can address.
Secondly, they claim a generalized, state-wide injury resulting from districts in which they are unable to elect a Democrat. But this is what Gill discussed:
I am open to the theory that an individual plaintiff may have standing to claim an individual district has done him individualized, particularized harm. I’m not seeing that case made here, however. The Constitution explicitly does NOT prohibit the kind of gerrymandering that is done for political benefit, and we know this from the 2004 SCOTUS case Vieth v. Jubelirer: “…[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended…” (quoting Davis v. Bandemer). There is no real question that at some level, EVERY redistricting plan made by a legislature carries some element of political advantage.
In Vieth, the plaintiffs proposed that the court adopt a “predominant interest,” test – sure, they said, we admit that there’s no getting away from political intrigue, but when the legislature’s predominant intent was political advantage, that’s when courts must step in, to prevent the denial of proportional representation to proportionately-sized groups.
But the Vieth decision rejected that invitation:
That’s the settled law of the land.
Now comes the district court, in a non-precendential option, and seeks to again craft a new standard that will allow courts to tweak district lines. They cannot do this, though, without rejecting the SCOTUS guidance laid out for standing in Lujan and districting in Vieth.
I predict that the final result of this case will be the overturning of the current ruling.
Taking no position on whether that’s actually what’s desirable in a democratic republic, the Supreme Court rejected that view in 2004:
In other words, I AM talking constitutional issues. I invite you to continue a discussion of what “should,” be, in your ideal world, without expecting me to weigh in on that thread of discussion.
(Post shortened in deference to our long-suffering hamsters…)
And no legal scholars of any merit disagree with your assessment? This is the legal equivalent of the slam-dunk, then?
And do you approve? One could read your analysis as regretful, this is wrong, it is unjust for legislators to vote themselves power above and beyond the will of the voter. But alas! there is no option, shucks, darn it.
Reason I ask, you were so fervent and fierce in your defense of the vote when it comes to voter ID, yet accept this sort of corrupt gamesmanship without any problem. To all appearances, you endorse it.
To be ruthlessly fair, you have offered solutions, all we need to do is concentrate whatever power we are permitted to keep (thanks for that, by the way, damn white of you…) and overwhelm the opposition, then pass Constitutional amendments.
A daunting prospect. I would be better assured of your sincerity if you weren’t chuckling.
Shockingly, there is no universal agreement on what “the right thing,” is.
But we do have an agreement, nearly universal except for disgruntled liberals, about how to pass laws, and that’s our substitute.
Now, if you’d like to switch to a system in which we simply do the right thing, and forget all the laws, and you’re willing to grant me the sole power to decide what the right thing is, then I humbly accept.
As part of the agreement on how to pass laws, there is also a part on how to challenge laws, that are thought by the citizenry harmed by those laws to be unjust. Why do you insist that only the part about passing laws is legitimate, and not the part on challenging laws?
Is it only disgruntled liberals, or is it anyone who does not feel as though the laws passed by duly elected congress persons fulfill their obligations under the constitution, the laws, and yes, fairness?
If it were only liberals, then we would not have cases like Heller, Trinity Lutheran Church, or Citizen’s United, turning over laws that were passed using “the agreement.”
Do you think it’s fair to call deliberate attempts to make it harder for black people to vote (these efforts in general, which include closing polling places, changing hours, and more) morally wrong?
Tampering with the electoral system is not only justicible, it is the single most justicible issue possible. If the legislature makes it impossible for opposing voters’ voices to be heard, then they cannot be voted out for that action. The only possible avenues for correction are the courts, and armed rebellion, and of the two, I far prefer the courts.
Certainly, trying to do the right thing can sometimes give bad results. But the judicial philosophy you espouse, of ignoring what is right and wrong in favor of what the law says, also gives bad results. It was your approach to jurisprudence that gave us Dred Scott.
Is there disagreement that fair elections are the “right thing”? Certainly some (many) benefit from unfair elections but do they argue that unfair elections are the “right thing”?
You would think so but the courts are weird about this.
I listened to a podcast called “More Perfect” some time ago and one of the episodes related a supreme court case called Baker v. Carr.
Chief Justice Earl Warren was asked at the end of his career, “What was the most important case of your tenure?” and his answer was this case. It was a redistricting case and it was so fraught with vehement opposition among the justices that it ultimately wrecked two justices (put one in the hospital and I think the other died shortly after).
When listening to it I was amazed…OF COURSE this is something the court should decide on but there were some on the court passionately opposed to it (and that puts it mildly…as I noted this wrecked two justices so vehement was the battle). Opposed as in they felt it was not a question for the court to decide. Nevermind the facts of the case.
I encourage you to listen to the episode (I linked to it above). It is fascinating.
I think my moral sense either is dispositive, or it’s not. You can’t elect my wise guidance on this issue and then declare my moral reaction to abortion, for example, has no suasion.
I’m interested in your opinion. As far as abortion, I couldn’t care less about your beliefs (or anyone’s) about its morality, only whether it should be legal.
I’m interested in Bricker’s legal opinions, since he can opine cogently and concisely and informatively in that area.
When he ventures into the area of morality, his opinions tend toward the ultra-relativistic, self-righteous, and petulant.
So no, I’m not particularly interested in those, and if he can only stick to his patronizing promise to leave that part of the discussion to others, we can all be happy.