James W. Pfister: Can the federal judiciary save our democracy?

When gerrymandering (drawing electoral district maps for political advantage) wastes votes of an opponent political party through “packing” that opponent into a district, thus wasting the “extra” votes, or by “cracking” into an opponent’s strength, causing that party to waste votes in a losing cause, democracy is undermined. The result is a distortion of representation which causes a polarization of political extremes instead of politics of the center where bipartisan compromise is possible.

The Supreme Court case of Rucho v. Common Cause (2019) was a chance for the Supreme Court to allow the federal judiciary to save the integrity of our democracy by overseeing electoral districts to make sure they are fair and reasonable using “neutral” and “manageable” and “strict” standards. (Associate Justice Elena Kagan in dissent). Instead, the Court in a 5-4 ruling in an opinion by Chief Justice John Roberts rejected such a role for the judiciary as being “political,” not legal.

My purpose is to analyze the opinions of Roberts and Kagan in dissent and to advocate for an active federal judiciary in this matter.

Roberts points out that the Constitution in Article III limits federal courts to “Cases” and “Controversies,” meaning disputes that can be resolved through a judicial process, in James Madison’s words, “of a Judiciary Nature.” This is distinguished from a “political question,” where courts lack judicial standards.

Gerrymandering of districts goes back to pre-constitutional days. Thus, according to Roberts, it is important to note that nothing in the Constitution gives the federal judiciary power to deal with elections. The Election Clause, Article I, Section 4, Clause 1, assigns to state legislatures the power to hold elections for members of Congress while giving to Congress power to alter such regulations: “At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of such a thing.”

The issue of the number of people in districts or racial discrimination are different from the partisanship issue: They are more easily determined by standards. But since the Framers gave the drawing of districts to politicians, they must have expected that political considerations would occur. So the question becomes how far is “too far.” According to Roberts, there are no clear judicial standards here. It is like “fairness” to Roberts: “The Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly.” In contrast to individuals, where each vote must count the same, that “requirement does not extend to political parties.”Roberts admits the results may be unjust and non-democratic: “Excessive partisanship in districting leads to results that reasonably seem unjust (and) incompatible with democratic principles (but this) does not mean that the solution lies with the federal judiciary.” Roberts states these are “political questions beyond the reach of federal courts.” Roberts stated that Congress could solve the problem. Kagan responded: “Those harms arise because politicians want to stay in office. No one can look to them for effective relief.”

Kagan believed that a legal analysis of the issue is possible with “neutral and manageable — and eminently legal — standards….” Kagan pointed out that the district courts below made decisions in an unbiased and legal way. It was law, not politics. Statistical and mathematical techniques can be used. “By any measure, a map that produces a greater partisan skew than any of 3,000 randomly generated maps … reflects ‘too much’ partisanship.” Using a map which is an “outlier” would not meet the constitutional standard. The plaintiffs were not asking for abstract fairness: “The plaintiffs asked only that courts bar politicians from entrenching themselves in power by diluting the votes of their rivals’ supporters.” The courts below gave this relief. “This Court should have cheered, not overturned, that restoration of the people’s power to vote.” (Kagan dissenting).

Clearly, the voters of a party which has been gerrymandered, wasting their votes with knowledge and intent of the drafters, are not being treated equally or fairly compared to non-gerrymandered voters. Our federal courts should have the power to protect voters from this inequality to save the integrity of our democracy. The Rucho majority approach should be changed.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Can the federal judiciary save our democracy?