We Could Have Been Worse Off

Last week the Supreme Court wrapped up its session and the justices left town for their summer vacations. As has become tradition they announced their most controversial and impactful decisions on the last few days. Thursday they announced two decisions impacting elections. One definitely didn’t go the way of progressives; the other was a temporary win that concerns me. Let’s explore.

The first decision entailed gerrymandering by state legislatures. The cases came from North Carolina where Republicans took advantage of their control and Maryland where the Democrats committed the same sin. The Court basically ruled that it didn’t have authority over the issue and therefore kicked the cases back down to the state courts. Regrettably I can see some justification for the move in that Section V of the Voting Rights Act of 1965 had been previously neutered by the Court along with consideration of Article I, Section 4 of the Constitution.

The North Carolina case was clearly one of suppressing the votes of African-Americans which would have never been allowed under the original Voting Rights Act. But in their effort to help the GOP win elections the Court kneecapped that law a while back. Article I; Section 4 of the Constitution gives most authority for conducting elections to the states. The Constitution decides Election Day and gives Congress the right to pass specific election laws; otherwise the states have pretty much free reign. That actually is an advantage as foreign entities try to hack our elections in that we have a multitude of independent systems. This is a case of diversification lessening vulnerability.

Over recent years a pattern has emerged in that the Supreme Court almost always decides in favor of Republican voter suppression and I contend that was the motivation in this instance. Over the course of becoming a more perfect union – which despite setbacks America is doing – we are getting close to a one person equals one vote situation. (Currently we are in a “one step backwards phase” which this ruling exemplifies.)

At some point Americans are going to have to demand severe constraints on gerrymandering. I do not feel we can eliminate it. Over time both political parties have done it and I see no reason that will stop in the foreseeable future. The problem we currently face is that computer programs and ability to crunch data has progressed to the point of almost optimal ability to gerrymander. “Independent” panels appear to be the closest we can get to a completely fair system. I put the word independent in quotation marks because I don’t see these panels every being completely independent. They will be comprised of former operatives of either political party or else we will simply get people who have no idea of what they are doing. The best we can do is balance them and hope the members are “sufficiently retired” to do a fair job. As an example would Republicans be comfortable with me on such an independent commission?

Now we come to the census ruling in which John Robert had to join the four liberal justices to at least temporarily stop the Trump administration from adding the citizenship question to the 2020 census. Like Chief Justices before him, Roberts appears to care about the legacy of what will be known in history as the Roberts Court. The Trump administration presented such a flawed case based upon obvious lies that he could not rule in their favor. Therefore, for at least the time being the Court ruled against inclusion of the citizenship question. Don’t expect the Trump administration to simply accept the Court’s ruling and obey. I see much more to be written before this chapter reaches its conclusion.

I would have preferred a definitive ruling based on the Constitution and the continuing perfection of the union. The census is included in the original text of the Constitution; it is not an amendment or Supreme Court interpretation. The idea is that every ten years a census will count every person living in the United States in order to apportion Congressional representation. Today the stats are also used to distribute federal aid. With the ratification of the 14th Amendment in 1868 and the 19th Amendment in 1920 theoretically blacks and women over the age of 21 became eligible to vote and thereby full citizens. With the ratification of the 26th Amendment in 1971 the age was lowered to 18. That aside, the intent of the census was to count population regardless of eligibility to vote.

It seemed Roberts was leaving the door open for the Trump administration to have a do over. That concerns me!

Here is what we should learn from these decisions: All elections matter at all levels! If you vote for president every four years and think you did your civic duty you are not only mistaken; you are part of the problem! Evil thrives when ignored. Laws vary from state to state but for the most part state legislatures draw the district maps. Most Americans do not know who represents them in their state capital. While it is basically a case of baring the door after the horse has escaped, Democrats are finally realizing the importance of the Supreme Court. Republicans have been working on seating friendly judges on federal and state benches since the Reagan administration.

Come this November in addition to the presidency and House race in your district (possibly supplemented by a United States Senate race) you need to pay attention to your state legislature races. The 2020 state legislature winners will draw the legislative district maps for the next ten years. In many states the state level judges, including the state supreme court justices, are elected. If the federal courts stay out of gerrymandering questions, as this ruling would indicate, they will be the ultimate arbiters of the maps.

At best, the Court punted. I certainly don’t expect Congress to show courage and step up with legislation. Is it really reasonable to expect the state legislatures to consider equity over self-interest? Like so many other things in the current state of our representative democracy it all falls on the last check – you, the voter. Freedom isn’t free and that is not limited to the role of the citizen soldier.

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