So situations like in Wisconsin where the democrats won 53% of the vote but only won 36% of the seats are acceptable?
Bolding mine.
Now that SCOTUS has whiffed on this (though I appreciate your explanation, I respectfully disagree), I think the only solution is through Congress. We can’t rely on states to pass fairer districting laws piecemeal because state parties risk weakening themselves while their counterparts in other states continue to enjoy the benefits of unfair districts.
And why wouldn’t both parties get behind this on a national level? Yes, at the moment, Republicans benefit more from gerrymandering, but over time it’s helped and hurt both parties.
My take (based on explanations above) is that SCOTUS can’t dirty its hands determining what’s acceptable. If they decide 53–>36 crosses the line, what about 52–>44? 50.1–>49.9?
There also seems to be an element of party affiliation not being protected wrt voting rights as race is, although I’m sure someone could demonstrate Wisconsin’s districts weaken representation for minorities as well.
It all reminds me of a playground monitor refusing to intervene in an after-school fight where one kid is getting his ass handed to him because her union contract only lets her intervene during recess, not after school.
That’s some catch, that Catch 22.
“Unacceptable, but Constitutional.”
“Blatantly wrong, but not our problem.”
The Supreme Court does not rule what is acceptable, only what is constitutional. Given that when the Constitution was passed Rhode Island which had 1.5% of the nations population got as many senators as Virginia, which had 19% of the population, it seems like they were okay with different areas getting different levels of representation.
This is one of the best diagrams I have seen on Gerrymandering.
I think it shows that it is not necessarily a bad thing. It is a tool. It can be used for good to get a proportional representation (second from the left) or it can be used to let a party rule with a minority of votes (far right). You can also see that compact districts is not necessarily a good solution as it can give all power to a slight majority.
Even as a (moderate) Republican I don’t believe that NC republicans are right in what they have done. I wish there was an easy way to fix it, but I don’t think the USSC should just step in and say “All gerrymandering is bad and must be outlawed. All voter districts must be rectangles. Here, give me a pen and a map, I’ll do it.”
Sadly we don’t have a good way to really fix it.
I don’t care what they were ok with. As the minority in power continues to shrink in absolute numbers, this representation imbalance is going to anger more and more voters. Large numbers of voters who see their will blunted by a fortunate few. This is not the recipe for good national governance.
Baloney. See post 9.
Salami. Note in graphic that big compact blocks are not best at representing minority parties.
I’ve read the rest of what’s been posted in my absence, but I have to address this statement right here. Because it shows some horrible understanding of both what the “Founding Fathers” had in mind, and what Constitutional Law is all about. Indeed, what I am about to say should cause you to get some serious chills on the back of your neck: your statement here is almost precisely equivalent to the viewpoint of Clarence Thomas, J. regarding when Supreme Court precedent should be over-ruled.
Let us assume arguendo that the method you have linked is a desirable methodology for re-districting. You propose that the Supreme Court adopt it as being the one and only acceptable method for re-districting. To do that, the Supreme Court would have to determine that no other method was constitutionally acceptable. But, of course, the Supreme Court has already stated in prior opinions that it’s acceptable to gerrymander districts, specifically when doing so is done with the purpose of rectifying past issues of racism (see: Voting Rights Act and majority minority districts). And, we can assume that the Supreme Court would be ok with the idea that the legislators of South Carolina, say, decided that, while a “perfect” set of lines would put the panhandle of Lancaster County in the same district with the rest of the county, the nature of the development in the panhandle makes it more akin to the similar development in adjoining York County (across Sugar Creek), so that’s where they will attach it. In short, there are lots and lots of reasons that legislators (or commissions) use in deciding how to divide up the map.
And here’s the important point: very few of those reasons are not acceptable according to the Constitution of the United States. Some of them are even highly desirable.
So your attempt to limit the decennial re-districting problem to a simple algorithm, and then by fiat make that be the ONLY method acceptable runs into some troubles. Indeed, in all that you have posted, I’ve yet to see you establish exactly why your preferred method MUST be the only constitutionally acceptable method, or even that it IS constitutionally preferred.
Which brings us to the “Founding Fathers” and their “vision”. How in the world do you think that, whatever vision you’d like to ascribe to a group of men who differed radically on a number of aspects of how to run the country (see: Hamilton v Jefferson), they were of the opinion that every individual’s vote should be exactly equal in value? The system the established showed they didn’t believe that. So I’m seeing that anyone who is an “originalist” or a “contextualist” or any of that nonsense is inherently going to agree with your proposed attempt at “one man, one vote”.
Also, I agree with The Atlantic (you know, that bastion of right-wing thought) when they said:
“Finally, there is the prudential argument. If you think abortion has politicized judicial nominations, just wait until judges are in the business of approving congressional districts. Even more than today, every judicial nominee will be vetted for party loyalty. Judges will become even harder to confirm. Partisans and interest groups will redouble their all-out warfare over the courts. And politicians and pundits will redouble their court bashing.”
and
“Once the federal courts plant themselves in the middle of the partisan crossfire over redistricting, they will never extricate themselves.”
and
“The bottom line, then, is that extreme gerrymandering needs to be curtailed, but not by politicizing the courts, rewiring the Constitution, and setting off all kinds of unpredictable consequences. It needs to be done the hard way: by changing the state and federal laws that govern redistricting.”
Bratwurst! (Couldn’t resist 
.) Here I agree with you (and the Atlantic) – a federal law is the only way to solve the issue, and that part won’t be easy.
This is a completely bogus argument. It’s not clear who your “they” refers to, but the Senate is set up as equal state representation. It is Constitutional because he Constitution says so. State Legislatures are not permitted to be set up in a similar fashion.
In addition, the Supreme Court has essentially ruled that the way the Electoral College currently works is unconstitutional. In Gray Vs Sanders, they ruled that Georgia could use the county unit voting system. The candidate receiving the highest number of votes within a county was declared the winner of that county’s unit votes. The candidate receiving a majority of the available county unit votes was declared the winner. The Electoral College system as currently applied is unconstitutional Except for Presidential Elections.
This is really the meat of the issue and helps correct some misunderstandings about what the Supreme Court does. It is not the “Mr. Fixit Clinic.” It doesn’t look at things that legislatures do and try to make them better.
If what the legislature has done doesn’t violate the constitution, it leaves it alone. And even if it could say that what Maryland and North Carolina did violated the Constitution, it must find some principled way to fix it with something that has general applicability.
It cannot just say that those districts are unconstitutional because they are SOOOO BAD without specifying how bad they can be and still be okay, and further specifying why the standard of “how bad” is based upon something of principle and not just what gets 5 votes.
Doing so is not deciding to shirk its duty. It is easy to assume power by claiming a duty. The Supreme Court is not the master of society, capable of solving all ills. A ruling the other way would have been an absolute disaster.
Flip it around - where does the Constitution say that very issue is justiciable? It doesn’t. The principle that not all questions are justiciable isn’t new - it dates back to 1849, at least, when the Supreme Court held that the courts had no jurisdiction to enforce the “republican form of government clause”: Luther v. Borden.
That clause states that “the United States” shall guarantee a republican for of government for each state, but that does not mean that the judicial branch of the United States is charged with enforcing that clause. The Court held that it was the elected branches which had that duty.
There is an argument that the elected branches of the federal government were in fact exercising that authority in the Reconstruction when they (briefly) tried to force the Southern states to enfranchise the black populations of those states, and include the new black citizens in the machinery of government. A broader franchise was more consistent with the concept of a republican form of government, in light of the 14th Amendment.
Said the 5 conservative judges when presented with evidence of conservatives cheating at democracy.
If the democrats want the courts to overturn gerrymandering they need to really use the process themselves. And not just Maryland. I believe virtually every state where the GOP was able to gerrymander in 2010, they did so. The democrats do not. If democrats win big in 2020 on the state level they need to gerrymander the hell out of every district they can.
Only after the 5 conservative judges see that democrats are benefiting from gerrymandering will 1+ of them join the 4 leftist judges to rule gerrymandering unconstitutional.
There is a way to change what is constitutional. Just pass a constitutional amendment. Every state knew what the constitution said when they entered the union. The way to change the constitution is by amendment and not the Supreme Court acting as a superlegislature.
Actually, goes back earlier than that. The first examples of the Supreme Court deferring to the other branches and refusing to decide a case include Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) and Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827). But the prime starting point is that seminal case Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803), where Justice Marshall stated,
People complaining here about this decision have two basic complaints, neither of which is supported in my opinion. The first is that the Constitution must be violated by a system that works to advantage one political group at the expense of another in a way that frustrates the voting “power” (if you will) of that other group. And, yet, this particular methodology of frustrating political power has been in existence in our country for over 200 years, which doesn’t, of course, justify it inherently, but serves to suggest that it isn’t seen as being adverse to the provisions of the Constitution. Indeed, gerrymandering has been used in a “positive” way to help undo the effects of past racist voting systems. Thus, gerrymandering per se is probably not unconstitutional, even if it isn’t always desirable.
The second is that the federal court system must be able to remedy the perceived defect in the system caused by such actions. This is an even more basically incorrect assumption. The federal court system has limited powers by intent. There are many things that are best remedied by using systems other than that court system. State courts, for example, are available to handle this issue (if it’s truly “unconstitutional” as a violation of, for example, the due process or equal protection clauses, then it’s most likely similarly unconstitutional in virtually every state where it is practiced). Congress is another avenue for addressing these issues, since Congress already has at times used its inherent power over the process to set standards on the drawing of districts. And, of course, ultimately, the ballot box is available, because if the practice is so heinous that it must be corrected, then that will be clear to more than just a slight majority of the population, and eventually will be undone at the will of the people.
We put much too much of our political aspirations on the decisions of the federal judiciary. This is why the process of picking members of that system is now so fraught with political combat.