Partisan Gerrymandering is Unconstitutional
This is a Quora Answer I wrote a while back. I'm posting this here for posterity as well.
The decision in Rucho v. Common Cause is the latest in a long litany of cases where the Roberts Court has both refused to protect and viciously attacked voting rights. Make no mistake: The judgement of Rucho was made by Chief Justice John Roberts with only one intent. Roberts made the political calculation that his party and his conservative movement was benefitting most from partisan gerrymandering, and he did what he has always done: Continue to advance the electoral power and projection of conservatives at the expense of the People’s power. This case was a complete disregard to the federal judiciary’s role in ascertaining that everyone’s access to the franchise and political power is unfettered (as required by the Voting Rights Act). Roberts made the decision to overrule multiple lower courts around the country (Middle District of North Carolina, District of Maryland, Southern District of Ohio, Eastern District of Michigan, Western District of Wisconsin, etc.) because he saw that doing so would keep his party in power. He did this by deciding that partisan gerrymandering claims are political questions.
At the end of the day, Roberts comes to this conclusion because the judiciary “has struggled without success over the past several decades to discern judicially manageable standards for deciding such claims”, which then implies “that the federal courts had [no] role to play” in redressing the wrongs of partisan gerrymandering “despite various requests over the past 45 years”. Roberts treats the fact that the federal judiciary has never before found a judicially manageable standard for partisan gerrymandering directly means that it never will find a judicially manageable standard for partisan gerrymandering as his axiom, and from it, he deduces everything else in his opinion from this.
Of course, as an engineer and scientist, I have quite a lot of experience with axioms. We in the scientific fields use them every single day, and in particular, we use them two fields: mathematics and thermodynamics (physical sciences). Something else that I know a lot about given my scientific background is when an axiom is wrong. In this piece, I will labor to show just how wrong Roberts’ axiom in this case is based on American history and that of the Supreme Court of the United States, and following that, I will tear apart his entire opinion using his own previous standards, beliefs, and statements.
First and foremost, it is important to note just how incorrect Roberts’ belief that the federal judiciary will never in the future find a judicially manageable standard to adjudicate partisan gerrymandering is, which, as I mentioned, is the vehicle through which he deduces that such claims are political questions. The premise of this axiom, from a legal standard, stems primarily from the belief that partisan gerrymandering is inherent constitutional, or at the very least, partisan gerrymandering is not inherently unconstitutional. In coming to this, though, Roberts throws out decades of his own Court’s precedents, and he explicitly creates a contradiction within his Court. Let’s begin with Roberts’ premise that partisan gerrymandering is constitutional. If we dial back the clock to the Supreme Court’s own decision in the 1986 case Davis v. Bandemer, we can see exactly how wrong he is. In Davis, the Court held that partisan gerrymandering can be unconstitutional.
To show this, I’m going to rely on two other cases first to deduce the holding of the Court in Davis. First, it is important to note that in 1977’s Marks v. United States, the Court held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds’” (Majority: Powell, Burger, White, Blackmun, and Rehnquist quoting Gregg v. Georgia). The reason I bring this up is because it is important to note that in Davis, there was no single opinion that enjoyed the assent of five justices. As such, we need to look at all of the concurring opinions with the judgement to find the holding of the Court. If we do that, we can clearly see that the holding of the Court is that partisan gerrymandering can be unconstitutional. How do we get there? By looking at the following quotes from the various concurring judgements:
“Rather, unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole” (Plurality: White, Brennan, Marshall, Blackmun; emphasis added).
“In Karcher v. Daggett, JUSTICE STEVENS, echoing the decision in Reynolds v. Sims, described factors that I believe properly should guide both legislators who redistrict and judges who test redistricting plans against constitutional challenges. The most important of these factors are the shapes of voting districts and adherence to established political subdivision boundaries. Other relevant considerations include the nature of the legislative procedures by which the apportionment law was adopted and legislative history reflecting contemporaneous legislative goals. To make out a case of unconstitutional partisan gerrymandering, the plaintiff should be required to offer proof concerning these factors, which bear directly on the fairness of a redistricting plan, as well as evidence concerning population disparities and statistics tending to show vote dilution. No one factor should be dispositive” (Concur/Dissent: Powell, Stevens; internal citations omitted).
“In light of Baker v. Carr, Reynolds v. Sims, and their progeny, including such comparatively recent decisions as Gaffney v. Cummings, this case presents a paradigm example of unconstitutional discrimination against the members of a political party that happened to be out of power” (Concur/Dissent: Powell, Stevens).
As we can see, at least six of the Davis Court’s nine justices held that partisan gerrymandering (which the plurality refers to as “a group of voters” above) can be unconstitutional. Thereby, we can take it that the holding of the Court is that partisan gerrymandering can be unconstitutional. This is important to note because it seems Roberts did not consider this as he wrote his opinion for Rucho. To be fair to Roberts, he acknowledges and quotes the majority of Davis as having “agreed that the case was justiciable” despite the justices “splinter[ing] over the proper standard to apply”. Now, it is important to note that nowhere in Rucho nor any other case or instance is Davis ever overruled. In fact, a majority of the Court explicitly rejected the proposition to overrule Davis in 2004’s Vieth v. Jubelirer, which also has never been overruled; if anything, a majority of the Vieth Court reaffirmed Davis. As such, we can take it that it is the holding of the Supreme Court that excessive partisan gerrymandering can be unconstitutional; something that Rucho does not address let alone even refute.
The Davis Court’s controlling opinion of the same six justices as above held that said unconstitutional harm could be addressed by the federal judiciary, which automatically implies that partisan gerrymandering is not a political question; that was the Supreme Court’s holding. As mentioned before, the Roberts Court in Rucho explicitly did not overrule Davis. However, since Rucho ruled that partisan gerrymandering is now a political question, let us assume, for argument’s sakes, that the Roberts Court had de facto overruled at least that part of the Davis judgement. However, even if we take that as fact (which is not something we are required to do based on the opinion itself or any other case decided by the Supreme Court), that maintains the other aspect of the Davis ruling as still being the law of the land: Partisan gerrymandering can beunconstitutional.
Again, I want to reiterate that the Roberts Court did not overrule Davis. In fact, Roberts himself actually asked the counsel for the appellants (Rucho et al.) whether or not ruling in their favor would require this: “Mr. Clement, would your position require us to overrule Davis vs. Bandemer… [I]f we decided it in your favor, would it require us to overrule?” After this, Roberts does not return to the issue of Davis being overruled in oral argument even though Clement does argue that Davis merits overruling, and he does not address this in the opinion either. Given all of this, we can come to the following two conclusions about the current Supreme Court’s precedents and decisions on the law of the land:
Partisan gerrymandering can be “unconstitutional discrimination against the members of a political party” (Powell, concurring and dissenting in Davis).
“[P]artisan gerrymandering claims present political questions beyond the reach of the federal courts” (Roberts, majority in Rucho).
Now, I think we can all see the inherent contradiction between these two precedents simultaneously being the law of the land. As of right now, there exists an extremely strange situation in current American law where partisan gerrymandering can be unconstitutional but also nonjusticiable. I have to wonder what was actually going through John Roberts’ mind when he came to this conclusion when he refused to overrule Davis. My immediate instinct is to ask John Roberts this: Are you saying that the federal courts lack jurisdiction to determine the constitutionality of legislation, or are you saying that the federal courts lack jurisdiction to strike down unconstitutional legislation? If so, that means you’re willing to overrule Marbury v. Madison, which clearly, you will not do.
However, for argument’s sake, let’s assume that Roberts believes that Davis’ holding on constitutionality was wrongly decided and that he wanted to overrule it but did not do so for whatever reason. If this is the (completely incorrect and absolutely wrong) case, he then reaches his axiom that underpins his whole opinion: The federal courts have never found a judicially manageable standard for determining the constitutional acceptance of partisan gerrymandering, which implies that they never will. Now, I spoke of wrong axioms at the beginning. A correct axiom is based on an observed reality, something which cannot be disproven or unaccepted. An incorrect axiom, on the other hand, is not based on reality and is something which can be disproven or unaccepted. As I’ve clearly shown from my analysis of Davis and its progeny, Roberts’s axiom here is based on an unaccepted premise that is explicitly rejected by the Supreme Court itself! Now that I’ve shown just how wrong Roberts’ axiom is, it should throw out his whole opinion without any further analysis because as a matter of logic, anything deduced from an incorrect axiom is entirely invalid. However, for the sake of completeness and full address of the issue, I will go through his opinion and soundly reject everything he proposes. Let’s go forward, shall we?
Roberts believes that since the federal courts have never before found a judicially manageable standard to adjudicate the propriety of partisan gerrymandering, the federal courts will never find such a standard. However, as Justice Kennedy warned in Vieth, “[t]hat no such standard has emerged in this case should not be taken to prove that none will emerge in the future”. The crux of this lies on the belief that when you say something will never be possible, you are necessarily foreclosing the potential that such a possibility will arrive and develop. By throwing out challenges to partisan gerrymandering for lack of a standard, the Court has bound itself to never consider that a successful standard would emerge. As Justice Kennedy said in Vieth, “Relying on the distinction between a claim having or not having a workable standard of that sort involves a difficult proof: proof of a categorical negative”. Kennedy then warns that “the different treatment of claims otherwise so alike hinges entirely on proof that no standard could exist. This is a difficult proposition to establish, for proving a negative is a challenge in any context”.
Kennedy rejects the idea that the current lack of a judicially manageable standard necessarily forecloses the potential development of one in the future. When such a determination is made, it means that the decider is making an assumption about the future based on a level of certainty that absolutely none of us have about the unknown. By standing by that which Kennedy had explicitly rejected in Vieth, Roberts is showing his hubris when he forecloses the idea that there could potentially develop something of use in the future that he himself would find adequate to adjudicate the legality of partisan gerrymandering.
Roberts knows the flaws and complete lack of humility of this proposition as he says later in his own opinion for Rucho when he rejects all the proposed tests for partisan gerrymandering:
Experience proves that accurately predicting electoral outcomes is not so simple, either because the plans are based on flawed assumptions about voter preferences and behavior or because demographics and priorities change over time… [A]sking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise.
I will return to the merits of his point here later, but what I want to point out for now is that in this passage, Roberts specifically rejects the notion of prognostications about the future. However, in doing this, he creates a direct conflict with his own proposition that there will never in the future come about a standard of adjudicating partisan gerrymandering (if we were to accept his argument that none of the proposed ones meet constitutional muster right now). I honestly wonder if he understood the contradiction inherent within his own arguments here; to be honest, I’m not sure he did. It is a bit of wonderful irony that Roberts bases his whole opinion within the foundation of something he himself explicitly rejects in that selfsame opinion. Talk about “poetic justice”.
I want to now briefly talk about his belief that judges never will have the experience to understand the effect of maps on elections: “[A]sking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise”. Perhaps he may be right in that it is not the role of federal judges to prognosticate about how candidates and political parties will come out on any given apportionment. However, that does not excuse his belief that this would be based on “unstable ground outside judicial expertise”. Let’s accept for argument’s sake his position that judges should not be in the role of determining how maps would yield electoral results. Even if we do that, though, he emphatically misses something of utmost important in all of these partisan gerrymandering cases: None of the judges made any prognostications! Rather, they pulled in experts in the field from mathematicians, political scientists, and candidates themselves to help analyze how these maps would fare!
In absolutely none of these cases did the judges rely on their own lack of expertise to adjudicate partisan gerrymandering claims; rather, they relied on the expert testimony of credible witnesses who have spent their lifetimes studying these issues and become relevant scientists in these fields. Roberts, as always, is showing arrogance in this case when he ignores the facts of the trial. This does not even include the fact that no one is suggesting that judges should be stepping “outside” their area of “judicial expertise”; we are merely suggesting that judges rely on those who are experts in this field to make their decisions. However, as someone who once called empirical science “sociological gobbledygook”, Roberts’ rejection of empirical and evidence-based analysis does not surprise me at all. Roberts suggests that his “educational background” prevents him from understanding empirical analysis. If that’s the actual case, I wonder how anyone thought him intelligent enough to become a federal judge in the first place, and I wonder who at Harvard Law’s admissions committee thought him to be intelligent enough to accept and award a JD to.
Something else that belies this is Roberts’ straightforward rejection of all the tests developed and utilized by the judges below. It is something of a mystery to me as to why Roberts spends 34 pages explaining why the federal courts will never find a judicially manageable standard to adjudicate partisan gerrymandering while expending not a word (not a single word) as to why he and the majority believes that the tests applied below are insufficient. The opinion rejects out of hand all of the analysis developed and done by the judges from the Middle District of North Carolina and the District of Maryland explicitly. Since he has issued this decision it can probably be assumed that his Court will vacate the decisions of the Eastern District of Michigan in League of Women Voters of Michigan v. Benson and that of the Southern District of Ohio in Ohio A. Philip Randolph Institute v. Householder, not to mention last year’s vacatur of the Western District of Wisconsin in Whitford v. Gill. In these three cases and the two that the Court considered in Rucho, a total of fifteen federal judges spent almost a thousand pages of ink painstakingly going through multiple standards that could be applied to adjudicate claims of partisan gerrymandering. Roberts dismisses all of this analysis out of hand without even taking a single word in his decision to explain his reasoning of why he believes these tests do not apply and do not achieve constitutional muster. I can only assume that, once again, Roberts thought it below his stature to even read these opinions and take the time to understand what all these judges analyzed and applied to come to their conclusions. His hubris shows itself again when he considers himself intellectually superior to the judges below him (several of whom have been on the federal bench for much, much longer than him and have much more experience).
In all of these cases, the judges made the argument that partisan gerrymandering cases can be considered as analogous to those of the racial gerrymandering cases, and they based all of their subsequent analysis and conclusion on this. Roberts, however, disagrees with this. He first says, “Laws that explicitly discriminate on the basis of race, as well as those that are race neutral on their face but are unexplainable on grounds other than race, are of course presumptively invalid”. However, he goes on to say afterwards, “To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framer’s decision to entrust districting to political entitles”. My views on Originalism and Original Intent are well documented on Quora, and I will not bother to rehash those here. Instead, I’m going to ask a simple question for which I wish Roberts would answer: If the Fourteenth Amendment, as held by Shaw v. Reno, prevents racial gerrymandering, why does it not prevent partisan gerrymandering?
He holds that the difference between them is that some level of partisan gerrymandering is constitutionally acceptable while no level of racial gerrymandering is constitutionally acceptable. Considering his decisions and votes in Shelby County v. Holder, Alabama Legislative Black Caucus v. Alabama, and Cooper v. Harris, I find it extremely unbelievable that Roberts truly believes that all racial gerrymandering is unconstitutional. In fact, his votes in these cases explicitly show that he does not. As such, my question remains: If the Fourteenth Amendment does not tolerate racial gerrymandering, why does it tolerate partisan gerrymandering? On this note, Roberts concludes, “Nor do our racial gerrymandering cases provide an appropriate standard for assessing partisan gerrymandering.” He then cites Shaw v. Reno to show why the Voting Rights Act was necessary to provide redress to the centuries of racial grievances in this country, yet he seems to forget that he himself gutted that same Voting Rights Act in Shelby County. Hypocrisy knows no bounds.
Roberts seems to believe that when it comes down to it, issues of malapportionment and one-person, one-vote can “be decided under basic equal protection principles” and are “relatively easy to administer as a matter of math”. As an engineer, Roberts’ sudden inclination to consider any sort of mathematical principles strikes me as a sick joke because never in his judicial career has he ever given any heed to mathematicians or scientists at all. Roberts has spent his life both as an advocate and a judge rejecting and throwing out empirical evidence and numerical realities. This can be dated all the way back to the days when he argued Milliken v. Bradley before the Court he now leads out to when he was presiding over oral arguments for Shelby County v. Holder. Roberts has repeatedly shown a complete and total rejection of empirical evidence throughout this entire history. The idea that he suddenly in 2019 chose to change course on this is beyond unbelievable for me; he is almost gaslighting. That said, the larger point of concern for me here is why Roberts does not trust the expert mathematicians and political scientists (several of whom submitted amicus briefs for these cases) or take into account their contentions that adjudicating and addressing partisan gerrymandering is indeed possible. From what I can tell, he dismisses all engineers, mathematicians, and scientists out of hand merely because he views himself as being above us. He basically said as much in his dissent for 2017’s Moore v. Texas. His intellectual hubris is one of his greatest flaws, and we as a nation are suffering for it.
Another key point that underpins Roberts’ opinion is his fear that providing relief to the plaintiffs in this partisan gerrymandering case will serve as “an unprecedented expansion of judicial power”. First of all, in terms of “an unprecedented expansion of judicial power”, I wonder what he views as underpinning the power of Marbury v. Madison then since he suddenly seems to be concerned with “expansion of judicial power”; if we also consider his belief that the courts should stay out of partisan gerrymandering cases because it would go against the “Framers’ vision”, I would remind him this: They also never explicitly allowed judicial review either. The reality is that for as long as our country has existed, there has been a continued expansion of judicial, executive, and federal power, and that has not stopped under Roberts. If he truly wants to return to the views of the Framers’ vision, he should be willing to get rid of pretty much every decision of his own Court for the last 250 years. Clearly, he will not do that. Roberts’ own Court, and his own votes, have greatly expanded judicial power from Citizens United v. FEC to Heller v. District of Columbia and others. Roberts’ newfound concern about “an unprecedented expansion of judicial power” are coming from nowhere, and that concern is clearly not real based on his own on actions and beliefs.
Roberts is also greatly concerned that giving the plaintiffs of this case the requested relief would involve the federal courts too much in the political issues of the day. If this is truly a concern, he must be willing to overturn basically all of the consequential decisions of his own Court in the last two and a half centuries from Marbury v. Madison all the way to New York v. Department of Commerce. In fact, if he really believes that the Court should stay out of political squabbles, it makes you wonder how he explains his own votes in Heller v. District of Columbia, Citizens United v. FEC, Hobby Lobby v. Burwell, AT&T Mobility v. Conception, Arizona State Legislature v. Arizona Independent Redistricting Commission, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, Rapanos v. United States, Ashcroft v. Iqbal, Ricci v. DeStefano, and a multitude of others.
His newfound concern for the courts getting involved in political squabbles comes out of nowhere is entirely non-genuine, and he knows it. Roberts is happy to have the courts get involved in political issues including those that were explicitly left in the Constitution to the states and political branches. Look no further than his role in providing counsel for then-candidate Bush in 2000’s Bush v. Gore. He did not have any concern involving the federal courts in political issues then, and hell, he even had no issue having federal courts deciding elections, which he claims he is against in Rucho. Roberts claims that the federal courts are not in the business of “exercise[ing] judicial discretion” when there is no constitutional basis. This clearly conflicts with his vote, for instance, in Heller v. District of Columbia where he and his Court found an individual right to bear arms that had never existed before and which is explicitly refuted by the Constitution itself (“A well regulated militia…”). Roberts also somehow found a constitutional provision that allowed him to gut the VRA when the Fifteenth Amendment clearly provides Congress with the power to ascertain that every person in this country has the right of franchise. Let’s face it: Roberts is a political hack who has no true beliefs and who only relies on his personal conservative convictions to come to decisions. That’s all there is to it in the end.
Also, for all his concern that the Supreme Court has waited forty-five years for a judicially manageable standard for partisan gerrymandering, he for some reason was completely okay to wait for almost 250 years to find an individual right to bear arms. Not only that, Roberts and his majority have explicitly stated that they will continue waiting for a long, long, long time to fully elucidate the Second Amendment: “But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, anymore than Reynolds v. United States, our first in-depth Free Exercise Clause case, left that area in a state of utter uncertainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us”. Roberts clearly did not have a hard time waiting around forever to provide an individual right to bear arms, so I have to wonder why he is not willing to wait for another five or ten years for a judicially manageable standard to adjudicate partisan gerrymandering to show itself. Roberts, as always, is a political hack.
Another point of note is Roberts’ contention that partisan gerrymandering does not violate the First Amendment’s right to association. He says associational rights do not extend to political parties: “It hardly follows from the principle that each person must have an equal say in the election of representatives that a person in entitled to have his political party achieve representation in some way commensurate to its share of statewide support”. There is something to be said for the argument that our Constitution does not require proportional representation; that is not something I care to address in the present circumstance. Rather, I take issue with Roberts’ belief that association is not a right extended to political parties. I find this point entirely baffling, and I believe that anyone with two brain cells would, too. Everyone knows that political parties are groups of people, and that the First Amendment protects the right to free, unburdened association to groups of people. Therefore, it seems quite simple and straightforward to me that by this simple understanding of dictionary definitions of the given words, the First Amendment’s protections of associational rights extend to the groups of people who compose political parties. Now, perhaps the case could be made that if this is an accepted provision and argument, this particular case should have been thrown out due to lack of standing because (at least if I remember correctly) the political parties themselves were not plaintiffs to this suit. However, Roberts does not even reach this because he rejects outright that the First Amendment protects associational rights of certain groups of people while completely ignoring the definitions of plain English words here.
As the opinion nears it close, Roberts says, “Our conclusion does not condone excessive partisan gerrymandering[,] [n]or does our conclusion condemn complaints about districting to echo into a void”. Unfortunately, in the first case, it actually does condone excessive partisan gerrymandering because the Roberts Court just told everyone that there will be no one to prevent it. Whether Roberts intends this or not is irrelevant; at the end of the day, actions and their consequences speak much, much louder than words. I have this to ask him: Is it not the duty of the courts to protect the people’s rights? If it does, why does undiluted access to the franchise not deserve their protection? And if it is not the duty of the courts to protect the people’s rights, then why did you vote the way you did in Heller v. District of Columbia and Citizens United v. FEC? Whether Roberts realizes it or not, he has condoned partisan gerrymandering by refusing to stop it. It is the emphatic duty of the courts to police the other two branches of government; in this case, Roberts has ordered the courts to neglect on their duty.
Near the end of it, Roberts lists a litany of measures that have been taken by state courts, voters, and legislatures around the country to combat partisan gerrymandering. One of the methods he specifically points out is that of independent redistricting commissions: “One way [some states] are [reducing partisan gerrymandering] is by placing power to draw electoral districts in the hands of independent commissions”. I find his sudden interest in proliferation of independent commissions fascinating because based on his dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission, he believes that they are unconstitutional. Inevitably, a lawsuit will come to his Court within the next couple of years challenging one of the several independent redistricting commissions in the country, and the plaintiffs will ask his Court, now without Kennedy and with Kavanaugh who is much more hostile to voting rights, to endorse Roberts’ own dissent in Arizona State Legislature: “The Court’s position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court”. I wonder what his views on independent redistricting commissions will be when that case works his way towards him. Will he continue to embrace his newfound respect for independent redistricting commissions, or will be change his tune?
At the end of the day, the law does not exist in an ether as much as judges such as Roberts and Scalia would wish it did. The law is quintessential to how society functions and how we as a people live our day to day lives. There is a reason that our laws are considered a part of our culture. Originalists and “conservative” jurists such as Roberts envision the law as existing in some sort of vacuum where their decisions do not have consequences in real human life on a daily basis. They convince themselves that sticking to what they view as the “original meaning” is best because the human consequences of their decisions do not affect them, for they are not required to face the corresponding consequences.
All in all, there are many, many, many problems with Roberts’ Court opinion in Rucho, and I have tried to enumerate, explain, and dispel as many as possible here. Roberts’ opinion is a complete dereliction of duty. I wish he had read and taken to heart the warning and the call to heed of the Sixth Circuit’s Judge Eric Clay in the Eastern District of Michigan’s League of Women Voters of Michigan v. Benson:
Federal courts must not abdicate their responsibility to protect American voters from this unconstitutional and pernicious practice that undermines our democracy. Federal courts’ failure to protect marginalized voters’ constitutional rights will only increase the citizenry’s growing disenchantment with, and disillusionment in, our democracy, further weaken our democratic institutions, and threaten the credibility of the judicial branches. Judges—and justices—must act in accordance with their obligation to vindicate the constitutional rights of those harmed by partisan gerrymandering.
Roberts and his Court have refused to do their obliged duty to protect and “vindicate the constitutional rights of those harmed by partisan gerrymandering”. Judge Clay was completely correct, and this will only continue to hasten our democracy’s collapse and destruction. If in the future our descendants end up in a totalitarian state, they will study our history and point to Roberts’ dereliction of his duty to protect the rights of the American people to have unburdened access to the franchise and his constant destruction of voting rights as the harbinger of American democracy’s death, not all the craziness of the Trump presidency. If, however, we manage to one day dig ourselves out of this hole of democracy’s death, it will be because a future Supreme Court will reject Roberts’ incoherent, wrong, unfounded, and axiomatically incorrect judgement of Rucho v. Common Cause and endorse and apply Justice Kagan’s dissent in this case and because they will finally read the warnings of Judge Clay and address them.
One day, one way or another, we will have a cogent jurisprudence on partisan gerrymandering in this country such that it is not simultaneously unconstitutional to have excessive partisan gerrymandering while also being beyond the reach of the federal courts to address said constitutional harm. However, that day will not come until John Glover Roberts and his anti-voting rights ilk vanish from the federal judiciary, and the future Supreme Court will endorse Justice Kagan’s dissent, just as Justice Brennan in Baker v. Carr cited Just Black’s dissent in Colegrove v. Green. In that future, I hope Judge Clay gets the credit and deference due to him for all he did to prevent our federal judiciary from neglecting its duty; unfortunately, for now, his warnings have been for naught. We all, as an American electorate, though, owe him our gratitude for doing everything in his power to protect us from our democracy’s demise. Alas, this was not a battle he could fight by himself, and our collective failure to provide him the reinforcements and backing necessary in this battle is what has led to our democracy’s death in the first place.
The judgements of the District Courts for the Middle District of North Carolina in Common Cause v. Rucho and the District of Maryland in Benisek v. Lamone should have been affirmed. Simultaneously, the stays entered by the Supreme Court of the United States in the appeal from the District Court for the Eastern District of Michigan in League of Women Voters of Michigan v. Benson and in the appeal from the District Court for the Southern District of Ohio in Ohio A. Philip Randolph Institute v. Householder should have been vacated, and the appeals pending before the Court in these two cases should have summarily affirmed the respective judgements below without oral argument in light of the what was the correct judgement in Rucho.