Commentary

Judicial Gerrymandering: A Political Storm Into Which Federal Judges Ought Not Wade

By Richard Kelsey | November 22, 2016 | 12:32pm EST
In Wisconsin, a special federal panel ruled that the 2001 redistricting plan by the Republican legislature was unconstitutional. (AP Photo/Scott Bauer)

Federal Judges have no authority, mandate, or business in drawing Congressional districts.  It’s bad enough that politicians do it.  The question of Congressional districts and the lines that define them is political.  The historic and dangerous 2-1 ruling of a federal panel in Wisconsin is the type of legal decision that will be little understood, grossly under-covered, and profoundly damaging to our representative republic.

In Wisconsin, a special federal panel ruled that the 2001 redistricting plan by the Republican legislature was, well, too Republican.  It held that voters who were Democrats were not properly given the chance to be represented in districts by elected Democrats.  Mind you, the Court doesn’t tell us how they know who the Republicans and Democrats are.  Ironically, the Court bought into a statistical model predicting voter patterns.  Does that sound familiar?  Oh, by the way, if Wisconsin was so predictably Democratic, why was there a statewide Republican majority in 2001?  Why is the Republican Speaker of the House from Wisconsin?  How did the Republican Governor win three elections in four years?  And, how did Mr. Trump just win the state for the Republicans for the first time in 32 years?  Is it possible that voting is not an immutable characteristic, and despite the rise of identity politics, predictions on how people will vote for their life are not always right?  Moreover, in every Congressional district in this country, a quarter of the voters voted for the other guy or gal, and half of the eligible voters didn’t even vote. Somehow, however, this panel determined who the Democrats are in Wisconsin, and that those people ought not live under the yoke of oppression that is being represented by the opposite party.

Judicial gerrymandering is likely less competent than political gerrymandering because federal judges are not politicians, and they are not subject to the vote of the people when the rules or districts they create produce unwanted outcomes.  Judicial gerrymandering is not new.  However, doing it solely to purportedly address “partisan” map drawing is brand new.  Federal judges first tiptoed into the political system of district drawing when they created majority-minority voting districts. These race-based, unconstitutional districts were, like most ill-conceived judicial interventions, the product of being wrong for the “right” reasons.   The concept was that using race to remediate prior racism was permissible, and that creating majority-minority districts would ensure minority representation.  It is a frighteningly racist assumption and paternalistic view that minorities would only vote for minorities and that minorities can only be represented by minorities.  These race-based districts were the first political misstep of judicial gerrymandering, and they are alive and well today.

Perhaps one of the great ironies of judicial gerrymandering is that in states across the south, including Virginia, Democrats are now challenging these very same race-based, judicially sanctioned, minority districts. Why?  It is because the Democratic Party has determined that while they like having safe districts of voters on whom they believe they can always rely, they now don’t want too many minorities in those districts.  That, they think, is racist.  Remember, they fought to pack minorities into these districts and begged courts to sanction them.  Now, they want Courts to find, in essence, that these majority-minority districts are still constitutional, but only so long as the district provides just enough political advantage to keep the seat.  Once the seat is safe, placing other minorities in it is racist, so the argument goes.  And, if you are a minority voter, know this, the fight is not for you, it is about what politicians think is your reliable vote.  That’s the real outrage.  The Virginia majority-minority district case is before the Supreme Court, with arguments coming this December.  It would be ironic, indeed, if the Supreme Court struck these districts down entirely, as it should, and found that majority-minority districts are unconstitutional, per se. That’s the right legal result no matter what party it favors.

The Wisconsin case is a bird of a different feather. Indeed, it’s more fowl than eagle. Gerrymandering is a dirty word, unless you or your preferred party is drawing “favorable” political maps to take advantage of “partisanship.”  The best way to combat the over-stepping of any politician is to vote him or her out.  It’s the only method we have for accountability, and in every state in the union more people don’t vote than do vote.  Hence, it is a complete fabrication to argue that maps are “unfair” because of politics.  In addition, while we are increasingly partisan, and while most people in this country view the world through their own partisan lenses, picking and choosing their news the same way, political affiliation is neither a birthright nor a permanent condition. Ask the voters of Wisconsin, whom many thought were all Democrats, including a misguided three judge panel.

We don’t get to vote for Federal Judges.  And, they should not have a vote in how Congressional districts are drawn.  That’s a political question, which previous courts recognized as the very type of political storm into which they would not wade.  The reason for that is obvious, we can’t vote out the wrongdoers.  This country may be deeply divided politically, but the answer to our problems lie with us, not with people who do not answer to us.  Gerrymandering is an imperfect political system, fraught with political chicanery.  It can use reform by the people.  In the end, however, it is a system to which politicians must answer.  In that sense, it is always preferable to judicial gerrymandering.

Richard Kelsey is an attorney practicing with The Impresa Legal Group. A former Assistant Law School Dean and a former Virginia state court law clerk and commercial litigator, Kelsey was also the CEO of a technology company.  He has previously taught legal writing and pre-trial practice.  He is a regular commentator on legal and political issues in print, and on radio and TV. His opinions are his own, and do not represent any institution or entity.

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