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Why Gerrymandering Matters

Gerrymandering is not going away any time soon. It will just be used in different manner, a manner in which to achieve congressional districts with a fairer representation of the district’s constituency.

Why won’t gerrymandering go away? The districts are too big at an average of 700,000 people per district. This is the result of Congress freezing the number of Congressional Representatives at 435 in 1929 and reapportioning the districts of each state based upon population every 10 years. The inequality of this methodology can be seen in a comparison between Wyoming with its one Congressional Representative and it population of 586,000 as compared to California and its average size of 700,000 for each Congressional District. If the average was set at 586,000 people per district as Wyoming has, then California would gain 15 more Congressional Representatives.

The Washington Post has an article up on the impact of both unfair gerrymandering and a fairer version of gerrymandering as dictated by the court The later achieves a much fairer split of the districts meant to represent the makeup of the population within the state and their political interests as discovered through national elections.” One state fixed its gerrymandered districts, the other did not.“

The picture depicts the change in numbers of Republicans and Democrats elected to office as determined by the Congressional districts make up. Pennsylvania had its districts redrawn by the court and “a 53 percent majority in the popular vote yielded a hair under half of the contested seats for Democrats — a big difference from 2016, when 48 percent of the vote gave Democrats 27 percent of the seats.”

In North Carolina, the districts were not redrawn. “The old maps were still in place and a electoral result in 2018 was identical to that of 2016. Despite a Democratic wave in which more than half the state’s voters opted for a Democratic House candidate, Democrats won one-quarter of the contested seats.”

Michigan passed Proposal 2 which established a civilian board to redraw the boundaries of the Congressional districts. I suspect it will still have issues as it will be selected by the legislature.

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Anthony Kennedy Adds the Fifth Vote in the Citizens United Against Gerrymandering Opinion

Tomorrow, in addition to the predictable ruling in the EPA/mercury-emissions case, and in addition to a declaration of a constitutional right to same-sex marriage—another 5-4 ruling, in Obergefell v. Hodges—the Court will issue an opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that could directly implicate continued Republican control of the House of Representatives.  So the only question is, which way will Kennedy vote—and most people expect that he will vote Republican.

Which is to say, most people think he’ll make up the fifth vote to strike down as unconstitutional an amendment to Arizona’s state constitution, passed by the state’s voters in 2000, that removed the legislature’s authority to draw boundaries for federal congressional districts away and placed that authority with an independent redistricting commission.  The legislature is challenging the amendment’s constitutionality under the Elections Clause, which states: “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”  (Scotusblog notes that California has a similar setup.)

Obviously, since state legislative gross gerrymandering is largely responsible for Republican control of the House, presumably until after the next census in 2020, the Republican justices don’t want to invite, say, Pennsylvania voters to push through something similar in a voter referendum, reversing the extreme gerrymandering there by the Republican-controlled legislature in 2011. That includes Kennedy.  But Kennedy authored Citizens United and reportedly was the one who encouraged his cohorts to take on issues that had not been raised in the case, in order to destroy the McCain-Feingold law, and he’s been on the extreme defense about it ever since.  He could see this as some sort opportunity to regain some semblance of credibility on the nonpartisan front.  I mean, you never know.

Okay, you probably do know.  It won’t happen. The CW will prove right.

— In its ACA opinion today, the Court significantly narrowed its “Chevron-deference” doctrine.  I’m glad. Even despite the immediate repercussions for EPA authority., Me, Jun. 25

Okay, well, the EPA/mercury-emissions opinion, in Michigan v. EPA, and the Arizona Independent Redistricting Commission opinion were released today rather than on Friday.  As expected, both were 5-4 opinions with Kennedy as the swing vote.

Also as expected—by me and pretty much everyone else—the EPA’s interpretation of a phrase in the Clean Air Act was stricken as beyond the reasonable meaning of that phrase within the context of the Clean Air Act.  This is a big, big win for power plants and the Koch brothers.

But as not necessarily expected, by me or (to my knowledge) many other people, was the result in the Arizona Redistricting Commission case.  Which is to say, Kennedy’s decision to join Ginsburg’s opinion interpreting the Constitution’s Elections Clause as referring not to the actual legislative body but to a state’s general authority—vis-à-vis the federal government’s—to determine such matters, in this case via a voter-led referendum in 2000 that established a bipartisan state commission for the purpose of redistricting congressional districts.

“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg said in a statement she read in the courtroom.  The full provision in the Constitution’s Article I, Section 4, Clause 1, states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.

“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg wrote.

What I find curious is the majority’s interpretation of “The Times, Places and Manner of holding Elections for Senators and Representatives” as referring to redistricting methods at all.  And theoretically, it’s interesting that Scalia, Thomas and Alito, after all the venom they spilled last week in their King v. Burwell dissents—words no longer have meaning, etc., etc.—think “Times’ means something other than “times”; “Places” means something other than “places”; and “Manner” means something other than, well, “manner”.  I haven’t read the Ginsburg opinion yet, and I don’t know whether it addresses this. And while Ginsburg wrote the opinion, Kennedy controlled the basis for it.

But in my opinion, the grounds that the majority settled on are broader and better than a decision limited to the issue of gerrymandering. Which, it seems to me, this isn’t.  I’m certainly no expert in election law, but off the top of my head the ground on which the opinion is based—that the Elections Clause as referring not to the actual legislative body but to a state’s general authority to determine such matters, including by voter-led referendum—then states (Think: Wisconsin; North Carolina; but not, of course, Texas) might reverse the uber-restrictive voter-ID laws enacted the moment that the Tea Party gained control over the state’s legislative and executive branches together.

Well, we’ll have to see what the experts say about that.  Sit tight.  But even if limited to voter referendums on creation of anti-gerrymandering commissions, this opinion is a very big deal.  I think.

Citizens united in Arizona in 2000 against extreme gerrymandering. Now citizens can unite in other states to do the same.

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UPDATE: Richard Hasen, a professor at UC-Irvine law school and a leading liberal election law expert (he blogs on election law at electionlawblog.org), just published an article on Slate on the opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which he conjectures about the reasons for Kennedy’s surprising vote and notes that, as in King v. Burwell, Kennedy seems to have changed his mind after the argument in the case this spring.  Slate notes at the bottom of the article that he has a book forthcoming called Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections.  Cool.

Added 6/29 at 3:42 p.m.

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SECOND UPDATE:  Hmm. Two terrific articles about the actual effect of the EPA decision on coal-powered power plants. One, by Michael Grunwald in Politico, discusses both the specifics of the ruling and the quickly progressing demise of the coal industry, which is rapidly being replaced by gas and solar and wind power. His article is titled “A great day for coal? Not exactly.” It’s subtitled “Why the Supreme Court’s strange EPA decision won’t matter as much as people think.”

The other, by Eric Holthaus in Slate, is called “Bad News: Supreme Court Blocked Power Plant Rules. Good News: The Era of Coal Is Over.

Since I’m one of the people referred to in Grunwald’s subtitle, I thought I should mention these articles.   This is just a  big win for coal-powered power plants, not a big, big win for them.  The Koch brothers are still pretty happy tonight, though.

Added 6/29 at 9:40 p.m.

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