The Supreme Court isn't responsible for partisan gerrymandering. But current events in Texas underscore how much its 2019 ruling in Rucho has left (some) states free to radically abuse the practice.
After the 1910 census the number of representatives increased from 386 to 435, and so it has remained to this day. Meanwhile the population has more than tripled – going from 92 million to 331 million. While the Senate and the Electoral College are often identified as threats to democracy, the House–the Constitution’s designated representative democracy–has been ignored as each citizen’s vote is watered down to near pointlessness.
Freezing House membership violated the intent of the drafters and ratifiers as well as the actual text of the Constitution. It has made apportionment of seats based on population mathematically impossible. Today, 991,000 people in Delaware share a representative while in Montana the number is 543,000 – an 83 percent discrepancy.
This website ( https://twoyearstodemocracy.com/ ) is a personal essay which describes and documents the 1929 usurpation, its consequences and the potential for reform. It is brief -- 1,700 words (8 to 10 minutes) and thought-provoking.
As Thomas Paine wrote in Common Sense, "… a long Habit of not thinking a Thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defence of Custom. But the Tumult soon subsides. Time makes more Converts than Reason."
Gail, you and Paine raised a profound point that puts the pretense by the SCOTUS majority in Rucho (and in Alexander in 2024) into its proper perspective. "Custom" cannot (and cannot even rationally be believed by SCOTUS justices) to justify violating the plain text and plain purpose of our Constitution.
Federal criminal law (18 U.S.C. Section 242) even specifically and expressly emphasizes that invoking "custom" to justify "the deprivation" to "any person" of "any rights, privileges, or immunities secured or protected by the Constitution or [federal] laws" is actually an element of the crime.
In Rucho (in 2019) and in Alexander (in 2024), the SCOTUS majority was correct that gerrymandering is a custom that has a history dating back to the first days of this nation. Not only is that not a defense, it is an obviously absurd defense. Partisan gerrymandering is essentially the same as discriminating against women by arbitrarily denying them the right and power to vote. That unconstitutional and anti-constitutional "custom" continued even long after it was expressly outlawed by an amendment to our Constitution. Such "custom" hardly made it constitutional or not criminal.
Long before the Nineteenth Amendment (again) outlawed discriminating "on account of sex" against certain "citizens" regarding the "right" to "vote," the Fourteenth Amendment prominently emphasized that arbitrary discrimination against ANY class of citizens--especially regarding the right and power to vote--was illegal and unconstitutional in multiple respects.
"All persons born or naturalized in the United States" are "citizens of the United States and of the State wherein they reside. No State" does or can have any power to "make or enforce any law" that "abridge[es any] privileges or immunities of citizens of the United States" (obviously and necessarily including the right to vote). "No State" does or can have any power to "deprive any person" (citizen or not) "of life" or any "liberty' (obviously and necessarily including the right to vote) or any "property, without due process of law." "No State" does or can have any power to "deny to any person" (citizen or not) "the equal protection of the laws" (obviously and necessarily including regarding the right to vote).
SCOTUS's words (and the rights and principles asserted) in Williams v. Rhodes, 393 U.S. 23, 30-31 (1968) apply with equal force to yesterday's political gerrymandering (depriving women of the right and power to vote) and today's political gerrymandering (abusing the political content of speech (people's actual votes) to pretend to justify depriving them of "the freedom of speech" and "the right of the people" to "assemble" to vote, which the First Amendment expressly and emphatically has secured since 1791):
"In the present situation the state laws place burdens on two different, although overlapping, kinds of rights -- the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States."
Immediately after the foregoing, SCOTUS reiterated a crucial explanation of how "the freedom of speech" and "the right of the people" to "assemble" (including to vote) in the First Amendment actually is part of the "due process of law" that is further secured by the Fifth Amendment. Our right and freedom to speak, associate and assemble (including for voting) is part of the very process by which We the People influence how law is made in America:
"the right to vote" has peculiar power under our Constitution "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined."
Yep. Much as I agree with Prof. Vladeck's comments about what a healthy democracy requires, that's a topic for a hypothetical reconstruction of the US.
Now is our moment—take action against this harmful government. Covering up a pedophile ring. Ignoring court orders. Blatant corruption. The poor, the needy, and children are being abused—by our government. In the streets we must protest outright crooks and the pedophiles until after their shooting us starts, until we go down or we oust tyrants. I made 54 protest signs, and will make many more to share. You will see something different in these signs! Help yourself to this second batch, and share them as far as you can.
One of my eternal frustrations of SCOTUS in the Roberts era is its absolute refusal to deal with the real world. Frankly courts should not intervene in areas that must be solved politically. And yet, they *routinely* intervene!
A lot of politics went into broadening voting rights. People give SCOTUS credit for integration, but both of my parents graduated from segregated South Carolina schools more than 10 years after Brown. Black folks gaining political power through the Voting Rights Act probably had more practical effect than Brown, and Roberts' SCOTUS has done everything in its power to undo that political work.
Improving our healthcare economy is another area that should be solved with politics with very little intervention from the court, and yet Roberts' SCOTUS has taken every opportunity to make the political solutions that passed into law worse.
Allowing politicians in power to stay in power by picking their voters, on the other hand, is something that would be incredibly difficult to undo with politics. That's the whole point! In the real world, this is where the court, allegedly removed from politics, simply must intervene. It cannot be non-judiciable simply because it cannot be solved another way within our system. Just because it's hard and will upset folks on your cocktail party circuit doesn't mean it's not your job.
Rucho seemed to say that the lack of judicially manageable standards for determining how much partisan motive in redistricting is "excessive" was the problem. Well then, drop the "excessive" standard and make it illegal when a partisan motive is a "substantial" factor in the lines drawn. That standard seems to work in Title VII cases; why not here? If it results in rejection of maps until the partisan finagling is put to rest, so much the better.
This is a SCOTUS-focused blog, but we cannot let Congress off the hook here. Dems have talked a good game about fair maps (though they have been guilty of unfair ones). Expand the House! Enact multimember districts with ranked choice! An expanded House would be more representative and could ameliorate the Electoral College problem. There are methods to moot extreme partisanship and ideological sorting that are well within Congress's immense powers. This (and not Jill Stein running for Pres anytime Trump could win) could also break the duopoly in our system that many find so distasteful.
I thought mid-decade districting as a whole was a problem in the past, and still do. The Constitution sets it once a decade for a good reason. Doing so now is bad constitutional policy.
On some Frankfurter level, I understand up to a point about the Supreme Court wanting to stay out of this. But with Shelby v. Holder and so on, they keep out of the political thicket cynically.
Kamala Harris says the system is "broken." We need a national voting rights law (I agree with Rick Hasen -- a voting amendment would be a good idea), including a limit on gerrymandering.
For now, Democrats would be fools to unilaterally disarm. Yes, tit for tat is a necessary evil.
Joe, as Professor Vladeck highlighted (and I did in my comments to Professor Vladeck's piece), SCOTUS has not decided "to stay out of this." They knowingly violated our Constitution to help state legislators violate our Constitution. And "Democrats" violating our Constitution in the same manner is not "necessary." No matter who does it, we all should highlight how extremely unconstitutional and even criminal partisan gerrymandering actually is.
I spoke in terms of the possible -- my reference to Shelby underlines they did not "stay out of this." I was thinking about Earth 2, where they DID stay out of it.
Unilateral disarmament in the short term is problematic. Also, as of now, "violate our Constitution" has a natural law feel. I acknowledge that it has some validity, as it did in the days of Jim Crow. Long term, a national ban should be sought out.
Still, the current law, as accepted by the Supreme Court, allows partisan gerrymandering.
Joe, I was addressing the SCOTUS majority's pretense that because judges cannot well regulate exactly where to draw lines when gerrymandering, judges must "stay out of" declaring partisan gerrymandering unconstitutional.
Even if you call it "disarmament," it's extremely counterproductive and dangerous to pretend that public servants KNOWINGLY attacking and undermining the most fundamental and precious principles of our Constitution (to deprive people of the power of the most precious and fundamental rights secured by our Constitution and federal law) should be considered "armament." It's not armament. It's unconstitutional and it's criminal.
As to the first paragraph, fine with your messaging as such.
What are the Democrats supposed to do in the short term, when partisan gerrymandering is accepted by the institution that ultimately has the power to say what the (official) law is per Marbury v. Madison, be purity ponies?
Red states can add a chunk of new members of the House, and it is "extremely counterproductive and dangerous" (need more adjectives!) to return serve, by again following the accepted law as handed down by the Supreme Court of the United States?
I don't think allying with Stalin during WWII was "criminal," and given the stakes, doing this (which is significantly less allying with evil) is not either.
The same people who are not unilaterally disarming are also passing other laws protecting voting rights. So, net, they are not acting in the "same" manner anyway, since just looking at one aspect of voting rights is artificial.
Many people who are now litigating to oppose gerrymandering are far better positioned than I am to say what opponents of gerrymandering should do now. But I believe what we should do now involves lots of litigation and lots of other exercises of the freedom of speech to accentuate the rights and principles already highlighted by SCOTUS, SCOTUS justices, the people who wrote and ratified our Constitution and John Locke.
I'm trying to help by highlighting the dispositive principles that others are failing to address. We don't need to waste time on more laws to preclude partisan gerrymandering. Our Constitutions (state and federal) already outlaw this practice. Americans need only rediscover what our state and federal Constitutions already clearly say and clearly mean.
Professor Vladeck, thank you very much for highlighting how the SCOTUS majority in Rucho (and in Alexander v. South Carolina State Conference of the NAACP in 2024) violated their oaths (5 U.S.C. 3331) to "support and defend" our "Constitution against all enemies, foreign and domestic" and "bear true faith and allegiance to" our "Constitution."
In Rucho and in Alexander, the SCOTUS majority deliberately and viciously undermined our Constitution by defrauding Americans of our rights and powers as sovereigns. The SCOTUS majority merely pretended that mere state public servants in legislatures are the true sovereign in America.
The misconduct of the SCOTUS majorities in Rucho and Alexander was not only unconstitutional, it was criminal. Cf. 18 U.S.C. Sections 241, 242. It calls to mind the prescient warning of the brilliant Edmund Burke in 1774 to the British Parliament. Parliament then (like state legislators now) asserted the sovereignty of mere legislators over Americans in a way that truly was intolerable. This was the true cause of the American Revolution and the Revolutionary War. The Founders of this nation actually called the relevant laws of Parliament "The Intolerable Acts."
In 1774, Edmund Burke foresaw why Americans would revolt:
“If [the legislature's] sovereignty and [American] freedom cannot be reconciled, which will they take? They will cast your sovereignty in your face. Nobody will be argued into slavery.”
This is what the whole shooting match was all about. The entire Revolutionary War and even the entire American Revolution (from 1775 through 1791 (when the Bill of Rights was ratified and became part of our Constitution)) was all about who would be sovereign and what would be the supreme law of the land. In Britain, Parliament (a body of men) was both sovereign and the supreme law of the land. Parliament (mere men) could change the law when they wanted. In the U.S., the people are sovereign and our Constitution is the supreme law of the land. No public servant (and no collection or conspiracy of public servants) has the power to make, change or enforce any law in violation of our Constitution.
In Rucho and Alexander, SCOTUS justices essentially and intolerably asserted the sovereignty of state legislatures over the People. They KNEW their conduct violated our Constitution and their Oaths, in part, because the dissent (and many of the best and brightest of the Framers of the Constitution) highlighted that fact. The truth told by the dissenting justices deserves much more attention much more often:
“Governments,” the Declaration of Independence states, “deriv[e] their just Powers from the Consent of the Governed.” The Constitution begins: “We the People of the United States.” The Gettysburg Address (almost) ends: “[G]overnment of the people, by the people, for the people.” If there is a single idea that made our Nation (and that our Nation commended to the world), it is this one: The people are sovereign. The “power,” James Madison wrote, “is in the people over the Government, and not in the Government over the people.” 4 Annals of Cong. 934 (1794).
Free and fair and periodic elections are the key to that vision. The people get to choose their representatives. And then they get to decide, at regular intervals, whether to keep them. Madison again: “[R]epublican liberty” demands “not only, that all power should be derived from the people; but that those entrusted with it should be kept in dependence on the people.” 2 The Federalist No. 37, p. 4 (J. & A. McLean eds. 1788). Members of the House of Representatives, in particular, are supposed to “recollect[ ] [that] dependence” every day. Id., No. 57, at 155. To retain an “intimate sympathy with the people,” they must be “compelled to anticipate the moment” when their “exercise of [power] is to be reviewed.” Id., Nos. 52, 57, at 124, 155. Election day—next year, and two years later, and two years after that—is what links the people to their representatives, and gives the people their sovereign power. That day is the foundation of democratic governance.
And partisan gerrymandering can make it meaningless. At its most extreme—as in North Carolina and Maryland—the practice amounts to “rigging elections.” Vieth v. Jubelirer, 541 U. S. 267, 317, 124 S. Ct. 1769, 158 L. Ed. 2d 546 (2004) (Kennedy, J., concurring in judgment) (internal quotation marks omitted). By drawing districts to maximize the power of some voters and minimize the power of others, a party in office at the right time can entrench itself there for a decade or more, no matter what the voters would prefer. Just ask the people of North Carolina and Maryland. The “core principle of republican government,” this Court has recognized, is “that the voters should choose their representatives, not the other way around.” Arizona State Legislature v. Arizona Independent Redistricting Comm’n, [576 U. S. 787] 2015) (internal quotation marks omitted). Partisan gerrymandering turns it the other way around. By that mechanism, politicians can cherry-pick voters to ensure their reelection. And the power becomes, as Madison put it, “in the Government over the people.” 4 Annals of Cong. 934.
The majority [in Rucho] disputes none of this. I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is “incompatible with democratic principles.” Ante, at ___, 204 L. Ed. 2d, at 955 (quoting Arizona State Legislature [ ]).
The race to the bottom on gerrymandering reminds me of the absence of gun control. The right insists that the only thing to do about gun deaths is to make guns more available. (Leading, unsurprisingly, to more gun deaths.) So is extreme gerrymandering going to be the gun that finally kills the republic?
Partisan gerrymandering was a classic "Kennedy couldn't make up his mind" case, similar to abortion rights.
My hot-take (worth what you're paying for it) is the text of the 14th Amendment doesn't prohibit gerrymandering at all. (And I don't think it prohibits malapportionment either — Wesberry and Reynolds were wrongly decided.) A prohibition on *racial* gerrymandering should be found in the 15th Amendment instead. In other words, the court reached the right conclusions for the wrong reasons.
Chris, please consider Gail's post (re: "custom") and my reply (and my other comments regarding this piece). The First, Fifth and Fourteenth Amendments emphatically and irrefutably outlaw partisan gerrymandering.
The Rucho opinion is egregiously wrong and should be overruled. The way to do it is for some state to enact a redistricting so ridiculously one sided and completely preposterous that not even the lazy nitwits on the Supreme Court can tolerate it. Gentlemen and AI: start your engines!
The only way that would happen with the current Court would be for California or New York to gerrymander Republicans out of existence (I've seen a map of New York that has no Republican seats at all).
Rucho is the most consequential ruling of the Roberts Court with Trump v US being a close 2nd. Kagan presciently saw the downward spiral that undermines our democratic system. States that statutorily tried to overt it going forward will not be able to offset TX like moves. Gerrymandering has always existed and will continue on a partisan basis, but Rucho greenlighted the evident cancer that was coming in the House elections. Gerrymandered majorities do not give up power (e.g. NC).
Brooks, please consider Gail's post (re: "custom") and my reply (and my other comments regarding this piece). The mere fact that partisan "[g]errymandering has always existed" does not (and cannot and should not) mean that it "will continue on a partisan basis."
I think in the context of party separation starting in the 80s, it's useful to acknowledge the role of Reagan and his 'states' rights' platform had in separating the effectively FOUR party system, Southern Democrats, Northern Republicans, Western Republicans, Urban Democrats, into two parties. Southern Democrats and Northern Republicans existed for one reason: Lincoln was a Republican.
After that, yes, I have long recognized Bandemer (the Indiana Case) as a problem. It effectively reduced the saliency of Baker v. Carr and Brown v. Board II, where the Warren Court kicked ass, took names, and recognized that problems to the gearbox of the Legislative branch was not self-solving. That, more than anything, was why Earl Warren's favorite decision was Baker v. Carr (also because it was one where his ability to legislate among the 8 other Justices produced a decisive opinion).
Although Steve's analysis is cogent as always, looking at party registration of a state as a whole isn't always helpful when examining possible partisan gerrymanders. Just look at my home Massachusetts: although most voters are unenrolled with a party, you can get a sense of the overall partisan split by looking at state-wide votes which gives you ~68% Democrats/36% Republicans. With that kind of support, you would expect 2-3 Republican representatives among our total delegation of 9, but we have 9 Democrats instead. This isn't due to partisan gerrymanders: it's just because the Republican voters are well-distributed across the state and there is literally no sensible way to draw a Republican-majority district.
Which isn't to say what Texas isn't doing is a partisan gerrymander: it clearly is.
Given that (the current) SCOTUS has abdicated any responsibility over partisan gerrymanders (unless it benefits minorities under the VRA, in which case SCOTUS may well find problems with them), how do we get past this morass?
The only ways I see out are political and require Congressional action (which is to say they will never happen): expand SCOTUS with more liberal justices who may view recent precedent unsatisfactory and/or pass new laws legislating gerrymanders (which might be struck down by the current SCOTUS anyway)
Republican vs. Democratic distribution is pretty easy. Major urban areas and limited suburban areas are heavily Democratic. Ex-urbs and rural areas are heavily Republican. There are some rural areas with stronger Democratic presence along the Rio, and some urban areas, notably Panhandle, are stronger Republican, but it's self-selection.
And the solution I've seen presented IS to "make the problem bigger." Eisenhower saying. Make it impossible to ignore and encompasses so much that ignoring facets doesn't work.
"In its 1995 decision in U.S. Term Limits v. Thornton, the Court explained: “[T]he Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”"
Partisan gerrymandering's sole purpose is to dilute the power of some voters and increase the power of others to "favor or disfavor a class of candidates". Therefore, all partisan gerrymandering violates the principle of one person one vote and is unconstitutional. Zero tolerance for partisan gerrymandering is the very workable standard that should be applied by the Supreme Court.
This is a weird and utterly unimportant question about adverbs and other modifying phrases. I've noticed the minority dissenting "sadly", "respectfully", etc. What have been the most "out there" types of modifiers in dissents? Have you ever seen "furiously", "incredulously" (I think I remember one of those??), I don't know, "witheringly"? Just curious. Thanks for writing so I can understand things that I otherwise wouldn't be able to.
Texas Republicans are clearly not interested in what is best for the US democracy. Their actions indicate they are only interested in keeping Trump in power and in how much Trump largess will flow their way.
This may be true, "But there are reasons why we should all be averse to such a race to the bottom—even if, in a specific election cycle and/or in a particular state, it happens to benefit the party we support." And I say may be true for the reason if the Democrats do not retake the house, we may never have another election! Dramatic, yes, but we are living in an ultra-dramatic politics. I'm for the Dems amping up gerrymandering in present time. I'd like our democracy back.
After the 1910 census the number of representatives increased from 386 to 435, and so it has remained to this day. Meanwhile the population has more than tripled – going from 92 million to 331 million. While the Senate and the Electoral College are often identified as threats to democracy, the House–the Constitution’s designated representative democracy–has been ignored as each citizen’s vote is watered down to near pointlessness.
Freezing House membership violated the intent of the drafters and ratifiers as well as the actual text of the Constitution. It has made apportionment of seats based on population mathematically impossible. Today, 991,000 people in Delaware share a representative while in Montana the number is 543,000 – an 83 percent discrepancy.
This website ( https://twoyearstodemocracy.com/ ) is a personal essay which describes and documents the 1929 usurpation, its consequences and the potential for reform. It is brief -- 1,700 words (8 to 10 minutes) and thought-provoking.
As Thomas Paine wrote in Common Sense, "… a long Habit of not thinking a Thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defence of Custom. But the Tumult soon subsides. Time makes more Converts than Reason."
Gail, you and Paine raised a profound point that puts the pretense by the SCOTUS majority in Rucho (and in Alexander in 2024) into its proper perspective. "Custom" cannot (and cannot even rationally be believed by SCOTUS justices) to justify violating the plain text and plain purpose of our Constitution.
Federal criminal law (18 U.S.C. Section 242) even specifically and expressly emphasizes that invoking "custom" to justify "the deprivation" to "any person" of "any rights, privileges, or immunities secured or protected by the Constitution or [federal] laws" is actually an element of the crime.
In Rucho (in 2019) and in Alexander (in 2024), the SCOTUS majority was correct that gerrymandering is a custom that has a history dating back to the first days of this nation. Not only is that not a defense, it is an obviously absurd defense. Partisan gerrymandering is essentially the same as discriminating against women by arbitrarily denying them the right and power to vote. That unconstitutional and anti-constitutional "custom" continued even long after it was expressly outlawed by an amendment to our Constitution. Such "custom" hardly made it constitutional or not criminal.
Long before the Nineteenth Amendment (again) outlawed discriminating "on account of sex" against certain "citizens" regarding the "right" to "vote," the Fourteenth Amendment prominently emphasized that arbitrary discrimination against ANY class of citizens--especially regarding the right and power to vote--was illegal and unconstitutional in multiple respects.
"All persons born or naturalized in the United States" are "citizens of the United States and of the State wherein they reside. No State" does or can have any power to "make or enforce any law" that "abridge[es any] privileges or immunities of citizens of the United States" (obviously and necessarily including the right to vote). "No State" does or can have any power to "deprive any person" (citizen or not) "of life" or any "liberty' (obviously and necessarily including the right to vote) or any "property, without due process of law." "No State" does or can have any power to "deny to any person" (citizen or not) "the equal protection of the laws" (obviously and necessarily including regarding the right to vote).
SCOTUS's words (and the rights and principles asserted) in Williams v. Rhodes, 393 U.S. 23, 30-31 (1968) apply with equal force to yesterday's political gerrymandering (depriving women of the right and power to vote) and today's political gerrymandering (abusing the political content of speech (people's actual votes) to pretend to justify depriving them of "the freedom of speech" and "the right of the people" to "assemble" to vote, which the First Amendment expressly and emphatically has secured since 1791):
"In the present situation the state laws place burdens on two different, although overlapping, kinds of rights -- the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States."
Immediately after the foregoing, SCOTUS reiterated a crucial explanation of how "the freedom of speech" and "the right of the people" to "assemble" (including to vote) in the First Amendment actually is part of the "due process of law" that is further secured by the Fifth Amendment. Our right and freedom to speak, associate and assemble (including for voting) is part of the very process by which We the People influence how law is made in America:
"the right to vote" has peculiar power under our Constitution "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined."
Agreed, but as a TX resident, I do not wish to imagine the contortions of that 4:1 or worse map.
Nothing to see or hear here -- just the end-stage respiratory gurgling of a dying patient.
Yep. Much as I agree with Prof. Vladeck's comments about what a healthy democracy requires, that's a topic for a hypothetical reconstruction of the US.
Now is our moment—take action against this harmful government. Covering up a pedophile ring. Ignoring court orders. Blatant corruption. The poor, the needy, and children are being abused—by our government. In the streets we must protest outright crooks and the pedophiles until after their shooting us starts, until we go down or we oust tyrants. I made 54 protest signs, and will make many more to share. You will see something different in these signs! Help yourself to this second batch, and share them as far as you can.
https://hotbuttons.substack.com/p/free-protest-signs?r=3m1bs
One of my eternal frustrations of SCOTUS in the Roberts era is its absolute refusal to deal with the real world. Frankly courts should not intervene in areas that must be solved politically. And yet, they *routinely* intervene!
A lot of politics went into broadening voting rights. People give SCOTUS credit for integration, but both of my parents graduated from segregated South Carolina schools more than 10 years after Brown. Black folks gaining political power through the Voting Rights Act probably had more practical effect than Brown, and Roberts' SCOTUS has done everything in its power to undo that political work.
Improving our healthcare economy is another area that should be solved with politics with very little intervention from the court, and yet Roberts' SCOTUS has taken every opportunity to make the political solutions that passed into law worse.
Allowing politicians in power to stay in power by picking their voters, on the other hand, is something that would be incredibly difficult to undo with politics. That's the whole point! In the real world, this is where the court, allegedly removed from politics, simply must intervene. It cannot be non-judiciable simply because it cannot be solved another way within our system. Just because it's hard and will upset folks on your cocktail party circuit doesn't mean it's not your job.
Rucho seemed to say that the lack of judicially manageable standards for determining how much partisan motive in redistricting is "excessive" was the problem. Well then, drop the "excessive" standard and make it illegal when a partisan motive is a "substantial" factor in the lines drawn. That standard seems to work in Title VII cases; why not here? If it results in rejection of maps until the partisan finagling is put to rest, so much the better.
This is a SCOTUS-focused blog, but we cannot let Congress off the hook here. Dems have talked a good game about fair maps (though they have been guilty of unfair ones). Expand the House! Enact multimember districts with ranked choice! An expanded House would be more representative and could ameliorate the Electoral College problem. There are methods to moot extreme partisanship and ideological sorting that are well within Congress's immense powers. This (and not Jill Stein running for Pres anytime Trump could win) could also break the duopoly in our system that many find so distasteful.
I thought mid-decade districting as a whole was a problem in the past, and still do. The Constitution sets it once a decade for a good reason. Doing so now is bad constitutional policy.
On some Frankfurter level, I understand up to a point about the Supreme Court wanting to stay out of this. But with Shelby v. Holder and so on, they keep out of the political thicket cynically.
Kamala Harris says the system is "broken." We need a national voting rights law (I agree with Rick Hasen -- a voting amendment would be a good idea), including a limit on gerrymandering.
For now, Democrats would be fools to unilaterally disarm. Yes, tit for tat is a necessary evil.
Joe, as Professor Vladeck highlighted (and I did in my comments to Professor Vladeck's piece), SCOTUS has not decided "to stay out of this." They knowingly violated our Constitution to help state legislators violate our Constitution. And "Democrats" violating our Constitution in the same manner is not "necessary." No matter who does it, we all should highlight how extremely unconstitutional and even criminal partisan gerrymandering actually is.
I spoke in terms of the possible -- my reference to Shelby underlines they did not "stay out of this." I was thinking about Earth 2, where they DID stay out of it.
Unilateral disarmament in the short term is problematic. Also, as of now, "violate our Constitution" has a natural law feel. I acknowledge that it has some validity, as it did in the days of Jim Crow. Long term, a national ban should be sought out.
Still, the current law, as accepted by the Supreme Court, allows partisan gerrymandering.
Joe, I was addressing the SCOTUS majority's pretense that because judges cannot well regulate exactly where to draw lines when gerrymandering, judges must "stay out of" declaring partisan gerrymandering unconstitutional.
Even if you call it "disarmament," it's extremely counterproductive and dangerous to pretend that public servants KNOWINGLY attacking and undermining the most fundamental and precious principles of our Constitution (to deprive people of the power of the most precious and fundamental rights secured by our Constitution and federal law) should be considered "armament." It's not armament. It's unconstitutional and it's criminal.
As to the first paragraph, fine with your messaging as such.
What are the Democrats supposed to do in the short term, when partisan gerrymandering is accepted by the institution that ultimately has the power to say what the (official) law is per Marbury v. Madison, be purity ponies?
Red states can add a chunk of new members of the House, and it is "extremely counterproductive and dangerous" (need more adjectives!) to return serve, by again following the accepted law as handed down by the Supreme Court of the United States?
I don't think allying with Stalin during WWII was "criminal," and given the stakes, doing this (which is significantly less allying with evil) is not either.
The same people who are not unilaterally disarming are also passing other laws protecting voting rights. So, net, they are not acting in the "same" manner anyway, since just looking at one aspect of voting rights is artificial.
Many people who are now litigating to oppose gerrymandering are far better positioned than I am to say what opponents of gerrymandering should do now. But I believe what we should do now involves lots of litigation and lots of other exercises of the freedom of speech to accentuate the rights and principles already highlighted by SCOTUS, SCOTUS justices, the people who wrote and ratified our Constitution and John Locke.
I'm trying to help by highlighting the dispositive principles that others are failing to address. We don't need to waste time on more laws to preclude partisan gerrymandering. Our Constitutions (state and federal) already outlaw this practice. Americans need only rediscover what our state and federal Constitutions already clearly say and clearly mean.
Professor Vladeck, thank you very much for highlighting how the SCOTUS majority in Rucho (and in Alexander v. South Carolina State Conference of the NAACP in 2024) violated their oaths (5 U.S.C. 3331) to "support and defend" our "Constitution against all enemies, foreign and domestic" and "bear true faith and allegiance to" our "Constitution."
In Rucho and in Alexander, the SCOTUS majority deliberately and viciously undermined our Constitution by defrauding Americans of our rights and powers as sovereigns. The SCOTUS majority merely pretended that mere state public servants in legislatures are the true sovereign in America.
The misconduct of the SCOTUS majorities in Rucho and Alexander was not only unconstitutional, it was criminal. Cf. 18 U.S.C. Sections 241, 242. It calls to mind the prescient warning of the brilliant Edmund Burke in 1774 to the British Parliament. Parliament then (like state legislators now) asserted the sovereignty of mere legislators over Americans in a way that truly was intolerable. This was the true cause of the American Revolution and the Revolutionary War. The Founders of this nation actually called the relevant laws of Parliament "The Intolerable Acts."
In 1774, Edmund Burke foresaw why Americans would revolt:
“If [the legislature's] sovereignty and [American] freedom cannot be reconciled, which will they take? They will cast your sovereignty in your face. Nobody will be argued into slavery.”
This is what the whole shooting match was all about. The entire Revolutionary War and even the entire American Revolution (from 1775 through 1791 (when the Bill of Rights was ratified and became part of our Constitution)) was all about who would be sovereign and what would be the supreme law of the land. In Britain, Parliament (a body of men) was both sovereign and the supreme law of the land. Parliament (mere men) could change the law when they wanted. In the U.S., the people are sovereign and our Constitution is the supreme law of the land. No public servant (and no collection or conspiracy of public servants) has the power to make, change or enforce any law in violation of our Constitution.
In Rucho and Alexander, SCOTUS justices essentially and intolerably asserted the sovereignty of state legislatures over the People. They KNEW their conduct violated our Constitution and their Oaths, in part, because the dissent (and many of the best and brightest of the Framers of the Constitution) highlighted that fact. The truth told by the dissenting justices deserves much more attention much more often:
“Governments,” the Declaration of Independence states, “deriv[e] their just Powers from the Consent of the Governed.” The Constitution begins: “We the People of the United States.” The Gettysburg Address (almost) ends: “[G]overnment of the people, by the people, for the people.” If there is a single idea that made our Nation (and that our Nation commended to the world), it is this one: The people are sovereign. The “power,” James Madison wrote, “is in the people over the Government, and not in the Government over the people.” 4 Annals of Cong. 934 (1794).
Free and fair and periodic elections are the key to that vision. The people get to choose their representatives. And then they get to decide, at regular intervals, whether to keep them. Madison again: “[R]epublican liberty” demands “not only, that all power should be derived from the people; but that those entrusted with it should be kept in dependence on the people.” 2 The Federalist No. 37, p. 4 (J. & A. McLean eds. 1788). Members of the House of Representatives, in particular, are supposed to “recollect[ ] [that] dependence” every day. Id., No. 57, at 155. To retain an “intimate sympathy with the people,” they must be “compelled to anticipate the moment” when their “exercise of [power] is to be reviewed.” Id., Nos. 52, 57, at 124, 155. Election day—next year, and two years later, and two years after that—is what links the people to their representatives, and gives the people their sovereign power. That day is the foundation of democratic governance.
And partisan gerrymandering can make it meaningless. At its most extreme—as in North Carolina and Maryland—the practice amounts to “rigging elections.” Vieth v. Jubelirer, 541 U. S. 267, 317, 124 S. Ct. 1769, 158 L. Ed. 2d 546 (2004) (Kennedy, J., concurring in judgment) (internal quotation marks omitted). By drawing districts to maximize the power of some voters and minimize the power of others, a party in office at the right time can entrench itself there for a decade or more, no matter what the voters would prefer. Just ask the people of North Carolina and Maryland. The “core principle of republican government,” this Court has recognized, is “that the voters should choose their representatives, not the other way around.” Arizona State Legislature v. Arizona Independent Redistricting Comm’n, [576 U. S. 787] 2015) (internal quotation marks omitted). Partisan gerrymandering turns it the other way around. By that mechanism, politicians can cherry-pick voters to ensure their reelection. And the power becomes, as Madison put it, “in the Government over the people.” 4 Annals of Cong. 934.
The majority [in Rucho] disputes none of this. I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is “incompatible with democratic principles.” Ante, at ___, 204 L. Ed. 2d, at 955 (quoting Arizona State Legislature [ ]).
The race to the bottom on gerrymandering reminds me of the absence of gun control. The right insists that the only thing to do about gun deaths is to make guns more available. (Leading, unsurprisingly, to more gun deaths.) So is extreme gerrymandering going to be the gun that finally kills the republic?
Partisan gerrymandering was a classic "Kennedy couldn't make up his mind" case, similar to abortion rights.
My hot-take (worth what you're paying for it) is the text of the 14th Amendment doesn't prohibit gerrymandering at all. (And I don't think it prohibits malapportionment either — Wesberry and Reynolds were wrongly decided.) A prohibition on *racial* gerrymandering should be found in the 15th Amendment instead. In other words, the court reached the right conclusions for the wrong reasons.
Chris, please consider Gail's post (re: "custom") and my reply (and my other comments regarding this piece). The First, Fifth and Fourteenth Amendments emphatically and irrefutably outlaw partisan gerrymandering.
The Rucho opinion is egregiously wrong and should be overruled. The way to do it is for some state to enact a redistricting so ridiculously one sided and completely preposterous that not even the lazy nitwits on the Supreme Court can tolerate it. Gentlemen and AI: start your engines!
The only way that would happen with the current Court would be for California or New York to gerrymander Republicans out of existence (I've seen a map of New York that has no Republican seats at all).
Exactly what I have in mind.
Rucho is the most consequential ruling of the Roberts Court with Trump v US being a close 2nd. Kagan presciently saw the downward spiral that undermines our democratic system. States that statutorily tried to overt it going forward will not be able to offset TX like moves. Gerrymandering has always existed and will continue on a partisan basis, but Rucho greenlighted the evident cancer that was coming in the House elections. Gerrymandered majorities do not give up power (e.g. NC).
Don't underestimate Shelby County, or the presaged finding that Section 2 of the VRA is unconstitutional.
Yes, so much to choose from and its still not done with VRA.
Brooks, please consider Gail's post (re: "custom") and my reply (and my other comments regarding this piece). The mere fact that partisan "[g]errymandering has always existed" does not (and cannot and should not) mean that it "will continue on a partisan basis."
It may not be what I would want, but I am realistic about politicians.
I think in the context of party separation starting in the 80s, it's useful to acknowledge the role of Reagan and his 'states' rights' platform had in separating the effectively FOUR party system, Southern Democrats, Northern Republicans, Western Republicans, Urban Democrats, into two parties. Southern Democrats and Northern Republicans existed for one reason: Lincoln was a Republican.
After that, yes, I have long recognized Bandemer (the Indiana Case) as a problem. It effectively reduced the saliency of Baker v. Carr and Brown v. Board II, where the Warren Court kicked ass, took names, and recognized that problems to the gearbox of the Legislative branch was not self-solving. That, more than anything, was why Earl Warren's favorite decision was Baker v. Carr (also because it was one where his ability to legislate among the 8 other Justices produced a decisive opinion).
Although Steve's analysis is cogent as always, looking at party registration of a state as a whole isn't always helpful when examining possible partisan gerrymanders. Just look at my home Massachusetts: although most voters are unenrolled with a party, you can get a sense of the overall partisan split by looking at state-wide votes which gives you ~68% Democrats/36% Republicans. With that kind of support, you would expect 2-3 Republican representatives among our total delegation of 9, but we have 9 Democrats instead. This isn't due to partisan gerrymanders: it's just because the Republican voters are well-distributed across the state and there is literally no sensible way to draw a Republican-majority district.
Which isn't to say what Texas isn't doing is a partisan gerrymander: it clearly is.
Given that (the current) SCOTUS has abdicated any responsibility over partisan gerrymanders (unless it benefits minorities under the VRA, in which case SCOTUS may well find problems with them), how do we get past this morass?
The only ways I see out are political and require Congressional action (which is to say they will never happen): expand SCOTUS with more liberal justices who may view recent precedent unsatisfactory and/or pass new laws legislating gerrymanders (which might be struck down by the current SCOTUS anyway)
Republican vs. Democratic distribution is pretty easy. Major urban areas and limited suburban areas are heavily Democratic. Ex-urbs and rural areas are heavily Republican. There are some rural areas with stronger Democratic presence along the Rio, and some urban areas, notably Panhandle, are stronger Republican, but it's self-selection.
And the solution I've seen presented IS to "make the problem bigger." Eisenhower saying. Make it impossible to ignore and encompasses so much that ignoring facets doesn't work.
"In its 1995 decision in U.S. Term Limits v. Thornton, the Court explained: “[T]he Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”"
Partisan gerrymandering's sole purpose is to dilute the power of some voters and increase the power of others to "favor or disfavor a class of candidates". Therefore, all partisan gerrymandering violates the principle of one person one vote and is unconstitutional. Zero tolerance for partisan gerrymandering is the very workable standard that should be applied by the Supreme Court.
https://www.law.cornell.edu/constitution-conan/article-1/section-4/clause-1/states-and-elections-clause
This is a weird and utterly unimportant question about adverbs and other modifying phrases. I've noticed the minority dissenting "sadly", "respectfully", etc. What have been the most "out there" types of modifiers in dissents? Have you ever seen "furiously", "incredulously" (I think I remember one of those??), I don't know, "witheringly"? Just curious. Thanks for writing so I can understand things that I otherwise wouldn't be able to.
Texas Republicans are clearly not interested in what is best for the US democracy. Their actions indicate they are only interested in keeping Trump in power and in how much Trump largess will flow their way.
This may be true, "But there are reasons why we should all be averse to such a race to the bottom—even if, in a specific election cycle and/or in a particular state, it happens to benefit the party we support." And I say may be true for the reason if the Democrats do not retake the house, we may never have another election! Dramatic, yes, but we are living in an ultra-dramatic politics. I'm for the Dems amping up gerrymandering in present time. I'd like our democracy back.