Thursday, September 28, 2017

A Supreme chance to cage the gerrymander -- Sept. 28, 2017 column


The Supreme Court convenes Monday after its summer recess and on Tuesday takes up a case that could end extreme partisan gerrymandering.

Justices will hear arguments in Gill v. Whitford, a case from Wisconsin where, after Republicans took complete control of the state government in 2010, the state legislature redrew state Assembly districts, resulting, a federal court ruled, in unconstitutional partisan gerrymandering.

The plan purposely favored Republicans and hurt Democrats to such a degree that it violated the constitutional guarantees of the Fourteenth Amendment equal protection clause and the First Amendment right of association, the district court ruled.

Wisconsin appealed, saying its plan does not violate the Constitution and, besides, partisan gerrymandering is nothing new. The Supreme Court agreed to hear the case and granted the state’s request to block the lower court’s order to create a new redistricting plan by fall.

Justice Ruth Bader Ginsburg says Gill could be the most important case of the entire term.

And she told CBS’s Charlie Rose Tuesday: “It’s drawing a map so people think, `Why bother voting? This is a secure Republican district or this is a secure Democratic district, so my vote doesn’t count.’ That’s not a good thing for democracy.”

Gerrymandering creates “safe” political districts that make general elections uncompetitive and give party insiders greater power than constituents, a bipartisan group of current and former members of Congress said in a friend of the court brief, one of dozens filed in the case. Rep. Don Beyer, Democrat of Virginia, was among the brief’s signers.

The Supreme Court, mindful that redistricting is a state responsibility, has been reluctant to rule on political gerrymandering disputes, although it has kept a watchful eye on racial gerrymandering.

A question for the court now is how much partisan gerrymandering is too much. 
Judicial tea leaf-readers say the Supreme Court, by putting the lower court’s ruling on hold, suggests it may side with the state. Much depends on swing vote Justice Anthony Kennedy and whether a majority can agree on standards for judging whether redistricting plans are so partisan as to be unconstitutional.

Whatever the court decides, two things are clear: Gerrymandering has been with us always – and it erodes voter confidence and trust in government.  

Charles Ledyard Norton tells the story of the term gerrymander in his 1890 book, “Political Americanisms.”

Massachusetts Gov. Elbridge Gerry signed a bill in 1811 that adjusted legislative district lines. When artist Gilbert Stuart took a look at the map, he penciled in a few lines and told a Boston newspaper editor: “That will do for a salamander.”

“Salamander?” the editor riposted. “Call it a Gerrymander.”

Poor Gerry has been carrying the gerrymander burden ever since. But should he?
One of the first gerrymandering episodes actually took place years before in Virginia.

An “atmosphere of bitterness” hung over the first federal election in Virginia in 1789, following Virginia’s unconditional adoption months earlier of the Constitution, the editors of the James Madison papers explain.

Gov. Patrick Henry, a leader of the anti-Federalists, wanted revenge on the Federalists, so he changed voting lines to make Federalist James Madison run against anti-Federalist James Monroe for a seat in the U.S. House. Henry made Orange County part of an eight-county district that was strongly anti-Federalist and had opposed ratifying the Constitution.

Madison campaigned hard, and in the end he beat Monroe by 336 votes out of 2,280 cast.

In his biography of Henry in the late 1890s, Moses Coit Tyler wrote: “Surely it was a rare bit of luck in the case of Patrick Henry that the wits of Virginia did not anticipate the wits of Massachusetts by describing this trick as `henrymandering,’”

Henry “thus narrowly escaped the ugly immortality of having his name handed down from age to age in the coinage of a base word which should designate a base thing -- one of the favorite, shabby maneuvers of less scrupulous American politicians,” Tyler wrote.

Yes, Henry was lucky, but American voters are still victims of the shabby maneuver.

Gerrymandering may be as American as Patrick Henry, but if voters are lucky, the Supreme Court will agree with Ginsburg that extreme partisan gerrymandering is bad for democracy -- and end it.

©2017 Marsha Mercer. All rights reserved.

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