Another Loss for Gerrymandering

In an audacious move by a political leader who could potentially be held in contempt of court, Pennsylvania Senate President pro tempore Joseph Scarnati (R) informed the state supreme court on Wednesday that he will openly defy one of the court’s recent orders in a gerrymandering case.

On January 22, the state supreme court struck down the state’s gerrymandered congressional maps — maps which enabled the GOP to win 13 of the state’s 18 congressional districts even in years when Democrats won the statewide popular vote. That order explained that the state’s maps must be “composed of compact and contiguous territory” and must not “divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.” It also gave the legislature until February 9 to draw new maps, and the governor until February 15 to approve the maps and submit them to the court for review.

If either deadline is not met, “this Court shall proceed expeditiously to adopt a plan based on the evidentiary record developed in the Commonwealth Court.”

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Republican lawmakers from Pennsylvania who lost a gerrymandering case before the state's Supreme Court are now calling for justices who issued the ruling to be impeached.

The court ruled this year that the congressional map drawn by Republican legislators in 2011 was a partisan gerrymander that "clearly, plainly, and palpably" violated the state constitution, and the justices ordered the state's legislature and governor to draw a new map.

Shortly thereafter, Republican state Rep. Cris Dush circulated a letter to his colleagues saying the court's majority "engaged in misbehavior in office" because the ruling "overrides the express legislative and executive authority" to create laws.

"Wherefore," Dush concluded, "each is guilty of an impeachable offense warranting removal from office and disqualification to hold any office or trust or profit under this Commonwealth."

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Harvard law professor Lawrence Lessig said:

Almost a year ago, a bunch of us began talking about how to fix an increasingly dangerous flaw in the mechanics of our Republic — the Electoral College. We had just witnessed the second in the last three Presidents get elected without winning the popular vote. It was quickly becoming apparent that this was not a once-in-a-century problem, but an increasingly likely part of our democratic future.

I started reading the work of both lawyers and political scientists who had thought more carefully about this question. They saw something I had missed: The real problem with the College was not the College. The real problem was in the states. The College certainly made our votes unequal. But the real damage from that inequality was produced by the states.

That damage was winner-take-all — the rule that says that the winner of the popular vote gets all of the Electoral College votes. It was because (all but two of) the states allocated their electors in a winner-take-all manner that the real harm of the College was done. Winner-take-all meant that presidential campaigns were focused on a dozen states only; winner-take-all meant that the chance of a minority-elected president was high; and winner-take-all made America vulnerable to the games evil foreign governments might play, to hack our democracy and defeat majority will.

But the point most miss is this: winner-take-all is not part of the Constitution. The states started adopting the method after the Constitution was ratified; many bemoaned that decision from the very start. And while for most of our history, the constitution provided no enforceable principle to check winner-take-all, what this writing showed me was that the most recent decisions by the Supreme Court, applying the “one person, one vote” principle to the “presidential selection process,” gave us a way to get the Court to address this critical question for our democracy — does winner-take-all violate the principle of equality built into the 14th Amendment?

The more I looked, the more I became convinced it did, and more importantly, that we could get a Court to see it. The critical change that made this possible was (ironically) the Supreme Court’s decision in Bush v. Gore (2000). Until Bush, structures that rendered voting systems unequal were tested under an “invidiousness” standard — does the rule betray invidious discrimination?—meaning basically, can you show it was adopted for some illicit purpose?

That standard would be hard to meet with winner-take-all (except in the south, where it turns out the standard was adopted in some states for the express purpose of suppressing the influence of African Americans). But in Bush, the Court found the method the Florida Supreme Court had adopted to recount votes violated the one-person, one vote principle, without any finding of invidiousness. If this is the standard now, then winner-take-all is vulnerable.

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Tidewater said:

You may not like the EC, but to argue suddenly that it is unconstitutional is mind-bogglingly stupid.

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Tidewater said:

My bad. When the author wrote, "unconstitutional" I thought she meant "unconstitutional."

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The EC was part of the compromise between the big states and the small states in the constitutional convention. In exchange for small state ratification, the small states got a slight bump in their say in electing president.

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I'll tell you what does violate the Constitution: a Federal judge taking a case over which the Federal government has no jurisdiction.

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What they are doing is saying, in effect, "we don't like the Constitution, but we cant win the argument in the more democratic branches of government, so we want the unelected and unaccountable branch of the federal government to simply declare us the winner without having to win the argument."

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The Supreme Court has already heard a major case about political line-drawing that has the potential to reshape American politics. Now, before even deciding that one, the court is taking up another similar case.

The arguments justices will hear Wednesday in the second case, a Republican challenge to a Democratic-leaning congressional district in Maryland, could offer fresh clues to what they are thinking about partisan gerrymandering, an increasingly hot topic before courts.

Decisions in the Maryland case and the earlier one from Wisconsin are expected by late June.

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