On The Gerrymandering Decision: Don't Mourn, Organize--And Ascent Up

Thursdays determination yesteryear the Supreme Court declared that partisan gerrymandering is “non-justiciable.”  Federal courts have got been ordered to expect the other way, regardless of the egregiousness of the endeavor yesteryear entrenched political elites to select their voters together with thence keep themselves inward power.  Almost all “progressive” groups, summation to a greater extent than non-partisan “good government” groups rightly bewail the decision.  As Justice Kagan writes inward dissent, the widespread exercise of ever-more sophisticated techniques of gerrymandering is a right away threat to our self-description equally a democracy.  But it is non that all of her conservative Republican colleagues necessarily disagree alongside her virtually the cancerous threat posed yesteryear partisan gerrymandering. Instead, they say, alongside about plausibility, that it is impossible for the judiciary to figure out proper standards, which inward plough could move effectively enforced, of “fair districting.”  Gerrymandering requires full-scale entrance into Felix Frankfurter's "political thicket," together with 1 tin strength out empathize why about judges would move wary to produce so.  The Court most definitely did non say that partisan gerrymandering is desirable or, to a greater extent than to the point, fifty-fifty that it is non unconstitutional.  Instead, this is 1 of those parts of the Constitution that must move enforced yesteryear other parts of the political system, including, ultimately, ordinary citizens.   

Although 1 tin strength out sure criticize Chief Justice Roberts’s determination together with concealment Justice Kagan’s eloquent dissent, 1 should realize that a determination adopting her watch would non inward fact have got provided a genuine cure for what ails us equally a political system.  Instead, the Court would undoubtedly have got laid downwardly somewhat opaque standards that would have got served mainly to generate farther litigation that would have got years to resolve. One tin strength out imagine that the architects of the most evidently egregious cases, equally inward North Carolina, 1 of the beneficiaries of the Supreme Court’s withdrawal from the battlefield, mightiness have got been reined in, but it is illusory to believe that a genuine reapportionment “revolution” would have got ensued.  In many ways, a determination going the other agency would have got only dampened whatever on-going combat virtually the kinds of structural reforms that are necessary inward the mistaken belief that the federal judiciary could move trusted to supply adequate solutions. That is, alas, false.  The kinds of reforms that are really necessary must move done yesteryear “We the People” ourselves through effective political scheme together with movements.

One tin strength out already consider this happening at the province level, where aroused citizens have got taken wages of the “initiative together with referendum” to engage inward important together with welcome reform.  This has happened inward states ranging from California together with Arizona to Maine.  In a really scandalous (and, fortunately, entirely dissenting) opinion, Roberts would have got held that the wishing yesteryear Arizona voters to house redistricting inward the hands of a (relatively) non-partisan committee instead of leaving it upward to rabidly self-interested partisan legislatures was itself unconstitutional, because the tidings "legislature" has a real specific meaning.  Given his assurances, sincere or not, that at that topographic point are alternatives to federal litigation to run into the challenge of partisan gerrymandering, possibly he is signaling a alter of heart together with mortal on this point, which would move most welcome.  If he adheres to his previous view, together with gets the back upward of Brett Kavanaugh to supply the 5th vote to overrule the before Arizona case, together with so he would legitimately move described equally the most really awful Chief Justice since Roger Taney.

Unfortunately, many states emulate the national Constitution inward rejecting whatever existent run for “direct democracy.” In those states, 1 must promise that province courts enforcing their ain constitutions—the the States constitution is 1 of entirely 51 inward the entire United States, together with the other 50 constitutions all differ from the the States Constitution inward of import ways—to foreclose partisan gerrymandering.  This has happened, for example, inward Pennsylvania.

But, ultimately, it volition have got an energized country-wide motion willing to inquire cardinal questions virtually how best to organize our electoral scheme inward the 21^stcentury.  To have got an absolutely slow example, most Americans since 1944 have got agreed that the electoral college should go; it has non because of both the inordinate difficulty of amending the national constitution (unlike many province constitutions) coupled alongside the all-important fact that at that topographic point has been no genuine national mobilization of an aroused world demanding action.  With regard to the issues raised yesteryear electing members of province together with national legislatures, the topic of the gerrymandering instance decided on Thursday, nosotros should move having a national give-and-take of whether nosotros are good served today yesteryear our rigorous adherence to a congressional statute passed inward 1842, together with reaffirmed yesteryear Congress inward 1967, that requires single-member congressional districts.  Just equally problematic is that almost all of these districts elect their unmarried members yesteryear a so-called “first-past-the-post” scheme giving victory to whoever comes inward first, fifty-fifty if that is distinctly less than a bulk of the overall vote. The latter is not required; Maine has adopted a voting scheme that assures that the winner volition inward fact move able to claim bulk support.  It worked final twelvemonth to elect a Democrat over his Republican opponent who had received to a greater extent than votes inward the outset circular of counting the votes.  

There are many reasons for the cultural ability of Lin-Manuel Miranda’s depiction of Alexander Hamilton together with his compatriots.  One of them is the repeated emphasis on the necessity of American patriots to “rise up” against what British tyranny.  Our acquaint scheme of electing world officials has its ain elements of tyranny.  Now that nosotros know that the federal courts volition move no aid whatsoever inward responding to 1 of its most obvious manifestations, it is fourth dimension that earth realize their ain responsibilities to protect what the Declaration of Independence ordained equally authorities “by the consent of the governed” or Lincoln inward the Gettysburg Address equally authorities "by the people."  If political “leaders” won’t respond, together with so “We the People” should practise our correct nether Article V of the Constitution to need a novel constitutional convention that would produce what the Supreme Court refuses to do—safeguard our democracy. Nothing less than the legitimacy of the American scheme of authorities is at stake.