In gerrymandering case, Supreme Court punts on politics

When is a decision not a decision? When the Supreme Court shies away from politics. Historically, the justices have been loath to get their hands dirty by intervening in political disputes. Bush v. Gore was a rare exception and they only intervened when there was seemingly no end to the election outcome. Campaign finance reform was a free speech issue that the justices could sink their teeth into. But the issue of redistricting is pure politics and has been handled as such by both political parties in the states since time immemorial.

In this case, or I should say cases, since two were handled at once, the issue was down and dirty politics.

{mosads}In Wisconsin, the case was named Gill vs. Whitford. Democrats claimed the Republican-controlled legislature packed Democrats into a few districts, leaving a majority of Republicans with outsize influence in most of the state. Ironically, Chief Justice Roberts used that argument in not deciding on the merits of the case, saying the plaintiff had not shown he was personally harmed by being stuck in a district that is overwhelmingly Democrat. The chief justice sent the case back to the lower courts where the petitioner will get another chance to show that harm.

In the case of Maryland, Benisek vs. Lamone, Republicans said “they wuz robbed” when Democrats took a district centered in western Maryland and looped it to the south to pick up votes in heavily Democratic Montgomery County which includes the Washington, D.C., suburbs. Even the former Democratic governor, Martin O’Malley, said the district was gerrymandered, but it was ok because it was in response to Republican gerrymandering and, anyway, he is now all for the Supreme Court to rule against all gerrymandering. In Maryland’s case, the court just reaffirmed a lower court ruling denying a preliminary injunction throwing out the district in question.

The real winner in all this is the advocates who won in Pennsylvania, where the Democrats cleverly went to state court, having elected a 5-2 Democrat majority (judges are elected in Pennsylvania) and got them to write their own plan after the governor, a Democrat, refused to accept a Republican legislative plan, prompted by the court’s throwing out the old district lines.

The 4-3 majority in Pennsylvania indicates that one of the Democrats on the court thought writing their own plan was going too far, but C’est la vie, as the French say. Now that the Supreme Court has rid itself of having to make a decision on the merits, that is, whether there is a Constitutional question involved in what is known as gerrymandering. (I wonder what old Elbridge Gerry would think of all this, having only signed the first gerrymander reluctantly and who advocated indirect elections, but I digress).

The districts in Pennsylvania, which help the Democrats in a number of districts, are safe for now, and may be safe until the next round of redistricting in 2021. As of this writing, however, Republicans still have a few days to decide if they want to appeal the state decision to the federal level. If they do, I don’t find it hard to envision another decision that isn’t on the merits.

That brings us to the main question, is there a case that will force the justices to deal with the merits of the issue? Some say North Carolina, and some say they can regroup in the Wisconsin case but I’m not so sure. I think that if there’s a way of dodging the issue, the court will find it.

There’s another factor at play in the future, as well. Once again, there are retirement rumors swirling around Justice Anthony Kennedy. Should these rumors prove to be true, the one justice, who in the past has shown an interest in the issue, won’t be there and, depending on the makeup of the Senate, either conservatives will strengthen their majority, or there will be a prospect of a 4-4 deadlock, which will make both sides unhappy. As they say in the news business, time will tell.

Larry Hart is a senior fellow with the American Conservative Union Foundation’s Center for Government Reform.