Brent Budowsky: A GOP Roberts court?

Nothing is more important to American democracy than the right to vote. During arguments before the Supreme Court on Tuesday about the case of extreme partisan gerrymandering in Wisconsin, Chief Justice John Roberts offered a troubling and extraordinary statement suggesting why he may vote to uphold even hyperpartisan gerrymandering.

The chief justice expressed worry that the court’s legitimacy and authority would be hurt if the court struck down what most observers agree is extreme partisan gerrymandering by Republicans in Wisconsin. He suggested striking down this law “would cause serious harm to the status and integrity of the decisions of this court in the eyes of the country.”

{mosads}The chief justice and other justices might ask why striking down a partisan and discriminatory law that distorts democracy and devalues the votes of many citizens would politicize the image of the court, but upholding such a partisan and discriminatory law would not.

Justices might also consider whether the far greater danger to the perceived integrity and fairness of the court would be if partisan gerrymandering that benefits Republicans is upheld by a party-line vote of Republican or Republican-oriented justices, voting in a way that advances the political interests of Republicans, continuing the pattern of judicial party-line voting that occurred in crucial cases involving campaign finance and voting rights in which Republican justices voted in ways that advantaged Republican politicians.

After the extreme Republican gerrymandering in Wisconsin, in the 2012 statewide elections Republicans won only 48.6 percent of the votes but won a huge majority of seats in the state assembly.

In gerrymandering cases the offending party switches voters, often black and Hispanic voters, from one district to another to gain partisan advantage. This devalues the vote of any voters who were switched from one district to another to determine the outcome of the election before the voting. It also devalues the vote of voters who already reside in districts that were gerrymandered to destroy the democratic efficacy of voting in those districts, which were altered to achieve an outcome predetermined by the gerrymandering party.

This is how pseudo-elections are conducted in banana republics, where the winner is decided by the ruling party in advance of the voting.

Voters claiming their vote was devalued should have standing to make their case in court. No court should uphold the devaluation of any voter when the words “equal justice under law,” which includes the equal right to vote, are enshrined on the building housing the court that will decide whether this promise is true or false on matters defining American democracy.

Most Americans are offended by partisan gerrymandering. A recent poll by Democrat Celinda Lake and Republican Ashlee Rich Stephenson found that 71 percent of Americans want the court to set rules determining when partisan gerrymandering violates the Constitution. 

Creating election districts should be done by nonpartisan independent commissions.

 Party-line voting of Supreme Court justices did not enhance the court’s reputation when Republican justices united in the highly unpopular Citizens United case to give the wealthy substantial power to buy elections and when they united to dilute the Voting Rights Act while some Republican politicians practice systematic voter suppression of minority voters.

It would be a major injustice and raise further doubts about the fairness of the court if judicial party-line voting of Republican justices continues and they vote as a block to allow partisan Republican gerrymandering, after voting as a bloc to destroy campaign finance laws and to undermine the Voting Rights Act.

It is neither judicially right or democratically wise for Republican justices to continue to vote along party lines in ways that advantage partisan Republicans by failing to protect the integrity of the right of Americans to vote, the integrity of financing the elections they vote in and the integrity of the districts in which they vote.

Lets hope historians must never write about the GOP Roberts court on matters fundamental to our democratic freedoms.

Budowsky is a former aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the U.S. House of Representatives. He holds an LLM in international financial law from the London School of Economics.