Much as Supreme Court Chief Justice John Roberts insists there’s no such thing as “Obama judges or Trump judges, Bush judges or Clinton judges,” his court overtly displayed its partisan favor last Thursday with two key rulings that could have an enormous impact on the future of American democracy.
In a 5-4 ruling along conservative-liberal lines, justices effectively punted the question of whether it’s legally permissible to deliberately manipulate election-district boundaries to favor one party over another. Writing for the majority, Roberts said gerrymandering complaints “present political questions beyond the reach of the federal courts,” and thus, the court had to rule against a challenge to a North Carolina case in which GOP lawmakers acted overtly to manipulate voting districts in their party’s favor. Maryland’s 6th District has also been called into question.
Local lawmakers commented this week about the ruling. “It’s pretty simple — it gives both parties the ability to continue to do what they were doing,” Del. Gerald “Jerry” Clark (R-St. Mary’s, Calvert) said in an interview with APG Media of Chesapeake. “I’m disappointed. It’s status quo.”
For Roberts to state that this is a political, not judicial, issue is disingenuous at best. The court’s own precedent disputes his contention. After all, justices have previously affirmed federal courts’ jurisdiction on gerrymandering issues.
In 2004, conservative Justice Anthony Kennedy wrote on behalf of the court majority, “If a state passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation, though still in accord with one-person, one-vote principles,’ we would surely conclude the Constitution had been violated.”
Writing for the minority on June 27, Justice Elena Kagan stated that “these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
Roberts was clear that the court isn’t defending gerrymandering — probably because there is no defense. Gerrymandering is anti-democratic at its core because it seeks to corral voters who represent a political minority specifically to dilute their voting power. Roberts acknowledged that it is a reprehensible practice. For the court to punt on this crucial question is an abrogation of its duty.
In a related matter, that day’s other major ruling concerned the Trump administration’s efforts to place a citizenship question on the 2020 census. The court ruled 5-4 that, for now, the question cannot be placed on the census questionnaire pending clarification of the administration’s reason for putting it there. It would appear at first blush to be a defeat for the president, but because of the wishy-washy nature of the court’s ruling, the issue is far from resolved. The ruling could, in fact, eventually yield exactly the result the Trump administration seeks.
The administration has set a summer deadline for the census questionnaire to be printed in time for nationwide distribution. But the deadline is flexible. The Supreme Court sent the case back for a lower court’s review, and if that court rules quickly enough in the administration’s favor, the question could still wind up on the 2020 census.
Writing again for the majority, Roberts said the administration’s justification for asking the citizenship question “appears to have been contrived.” Commerce Secretary Wilbur Ross has tried to justify it as necessary to better enforce the Voting Rights Act. Federal courts have ruled that Ross wasn’t being honest about the administration’s true motive.
Differentiating citizens from non-citizens is not inherently a bad idea, especially if it yields more precise demographic data — a major reason the census exists. In fact, the U.S. Census’ voluntary American Community Survey has previously asked the citizenship question with the approval of both Republican and Democratic administrations.
But critics fear putting it on the mandatory questionnaire would deter unauthorized immigrants from participating in the census. Federal authorities have estimated that including the question could result in an undercount of about 6.5 million people — yielding a far more inaccurate census result.