Marshall H. Tanick, BridgeTower Media Newswires
“[T]he weight and worth of citizens’ votes as nearly as practicable must be the same.”
Wesberry v. Sanders,
376 U.S. 1 (1969)
Some Court observers and other savants, present company included, found it sardonic that Supreme Court Chief John Roberts joined the outvoted minority in the Supreme Court’s hurried decision in early February allowing the Republican-drawn partisan gerrymandered congressional redistricting map in Alabama to remain in effect, overruling the lower court there that deemed it invalid barely two weeks earlier.
Meanwhile, a few days later, a quintet of Minnesota state court judges devised new, slightly tweaked maps for the state’s eight congressional districts and 201 legislative seats with few murmurs of discontent.
In the prior Alabama case, a three-judge federal court panel, which included two appointees of former President Donald Trump, had unanimously held the GOP plan unconstitutional because of its blatant dilution of the votes of Black people, who overwhelmingly comprise the base of the Democratic party in that state.
But the conservative majority on the Supreme Court reversed, over the dissent of the chief justice and the three liberals in Merrill v. Milligan, Nos. 21A-375, 21A-376 (Feb. 7, 2022). The chief opined that the lower tribunal had “properly applied existing law” in throwing out the distorted GOP-devised arrangement, while he lamenting that Supreme Court precedents “have engendered considerable dispute and uncertainty” regarding claims of “voter dilution” due to partisan gerrymandering, a phrase dating back to the creation of a salamander-appearing congressional district slithering through Massachusetts in the early years of the Republic, sometimes inaccurately ascribed to the state’s then-governor, Elbridge Gerry, a one -time vice president.
The chief justice ought to know, because he was chiefly responsible as the jurist who cast the decisive vote and wrote the opinion for the court nearly three years ago in Rucho v. Common Cause, 139 S.Ct. 2484 (2019) that generally bars lawsuits in federal courts to overturn partisan gerrymandering. Although the decision left open racial discrimination challenges, which often overlap with redistricting partisanship, as well as proceedings in state courts, the thrust of the Roberts’ opinion was that such issues are “beyond the reach” of federal courts, which lack “license” or feasible “legal standards” to examine redistricting, no matter how slanted, unfair, or partisan-biased, which could warrant the specter of the analogy of an arsonist bemoaning the smoke coming from the fire he set.
But this fire seems to be burning in an unanticipated direction. While it was initially anticipated that the hands-off gerrymandering decision by the chief justice in the Rucho case would redound considerably to the benefit or Republicans, the party in control in most legislative bodies and governorships that generally control the redistricting process, as things have turned out post-2020 census, the Democrats are not taking a back seat. They have exercised their creative map drawing skills to substantially increase their advantages to pick up additional congressional seats in several “blue” Democratic-dominated jurisdictions like New York, where the party may flip two or three slots due to the new boundaries; Maryland, which is notorious in its gerrymandering genes; and Illinois, not known for its nonpartisanship, among others.
That partisanship practice has led one redistricting scholar, Claremont McKenna college professor Ken Miller to observe that “it looks like the Democrats will come out at least equal and maybe advantaged” around the country. This realization has prompted another astute observer, Trump, to blame “the Old Broken-Down Crow Mitch McConnell [who] sits back and does nothing to help the party,” even though the Republican minority leader in the Senate has nothing to do with congressional redistricting.
Nonetheless, gerrymandered aberrations persist, outside the purview of federal judicial review due to Roberts’ Rucho ruling. Wisconsin presents one example, where the GOP-devised plan, a source of ongoing litigation challenges, gives Republicans in nearly two-thirds of the state’s 99 Assembly districts a distinct advantage, even though the overall demographics of the state are nearly evenly split between Democrats and Republicans, an anomaly that the high court in a prior ruling refused to disturb in Gill v. Whitford 138 S. Ct. 1916 (2018).
The author of that opinion? None other than Chief Justice Roberts.
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Foul fowl
In his confirmation hearing in 2006, Roberts famously described how “[j]urges are like umpires,” impartially calling balls and strikes, fair and foul hits, and so forth.
But as the chickens seem to have come home to roost for Roberts, redistricting critics fear that more of that type of fowl may be lurking as these foul redistricting plans weave their way through legislative and judicial bodies while federal courts stand down due to his ruling for which the chief justice now seems remorseful. Rather than an umpire, he may be emulating singer Connie Francis, whose breakthrough song in 1958 of “Who’s Sorry Now” could be the leitmotif of his dissent in the Alabama redistricting case and, perhaps, others likely to wind their way salamander-style to the high court soon due to the partisan proliferation that he unleashed, or at least declined to defang, in his hands-off Rucho ruling.
In addition to his disdain for the outcome, which keeps the Alabama gerrymandered plan in effect pending further determination by the justices, perhaps later this year, Roberts also found the process wanting, bemoaning the majority’s expedited ruling without full-scale briefing and argumentation. The conservative quintet did so by resorting to the controversial “shadow docket,” an expedient short-cut used with increasing frequency by that group to bypass the normal route of appellate litigation.
But expediency aside, the Alabama ruling is not the only case in which the chief justice has paved the way for voter dilution, especially falling hardest on racial and ethnic minorities, poor people, and younger voters, all of whom tend to vote Democratic. He, too, authored the highly disputed decision of the tribunal nine years ago in Shelby County v Holder, 570 U. S. 529. (2013), which gutted the 1965 Voting Rights Act, making it more difficult to challenge voter suppression laws in areas with long histories of electoral chicanery based on race.
To compound the dilemma, he joined in the court’s 2008 decision in Crawford v. Marion County, 553 U.S. 181 (2008), upholding voter identification laws that many contend disadvantage those same minority, poor and youthful voters, along with some older ones, too.
So, the chief justice knows of what he speaks when he condemns the high court rulings that have created the “considerable dispute and uncertainty” forming the breeding grounds for the Alabama redistricting gerrymandering gambit and so many others like it around the nation. They are being perpetuated with increasing ardor by both Democrats and Republicans, although more so the latter due to their control of a great number of legislative chambers that do the deeds.
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Minnesota matters
Minnesota, with one of the nation’s two split legislatures, along with Alaska, fortunately has been out of the maelstrom on most of these messy matters lately and this year, too. Although competing party-oriented DFL and GOP plans have been circulated, a neutral panel of selected state court jurists recently promulgated redistricting boundaries for both congressional and legislative candidates, a process that has worked relatively well in recent cycles and was greeted generally with approval by both parties and candidates.
One of the few discordant features was the boundary-drawing that left two stalwart state Senate DFLers, both attorneys, paired in the same district in the southwest suburban areas of Edina-St. Louis Park. The overlap prompted newly christened Minority Leader Melisa López Franzen from the former to announce she will not seek reelection in the relatively-safe DFL stronghold in deference to the more senior Ron Latz from the latter.
At the congressional level, the major alteration consists of adding some 30,000 constituents from Le Sueur County to the 2nd District, currently represented by Democrat Angie Craig, who barely survived a tough election by less than a 3% margin in 2020 and is a key target of Republicans this time around.
But the relative tranquillity of the redistricting process in Minnesota this year is not to overlook this state’s long history of hotly contested redistricting undertakings, which have precipitated court battles in nearly every redrawing cycle over the past century, including a trip to the U.S. Supreme Court in 1993 in Growe v. Emison, 507 U. S. 181 (1993), a convoluted redistricting flap between competing maps drawn by federal and state court judges.
So, Chief Justice Roberts may rue his prior rulings, but they show, perhaps to his recent regret, that court decisions, like elections, have consequences.
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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
