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 on Thursday with two key rulings that could have enormous impact on the future of American democracy. The two rulings, on partisan gerrymandering and a citizenship question on U.S. Census questionnaires, leave open the question of whether political parties may constitutionally meddle with procedures to skew the balance of electoral representation.
In a 5-to-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.
The question goes to America's foundational democratic principles regarding the conduct of free and fair elections, including protecting minorities from practices designed to dilute their voting power. For Roberts to state that this is a political, not judicial issue is disingenuous at best. The court's own precedent disputes his contention.
In the North Carolina case, Republican lawmakers deliberately set out to draw voting districts in their party's favor to ensure the state retained its existing congressional representation of 10 Republicans and three Democrats. There was absolutely no question of GOP lawmakers' intention to gerrymander.
Justices have previously affirmed federal courts' jurisdiction on gerrymandering issues. A federal court, reviewing a case returned to it last year by the Supreme Court, ruled against gerrymandering in an instance where Democrats had engaged in the practice to the detriment of a Republican incumbent. Regardless of the party doing it, the practice is inherently unfair.
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 Thursday, 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.
Census question remains unresolved. Thursday's other major ruling concerned the Trump administration's efforts to place a citizenship question on the 2020 census. The court ruled 5-to-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 President Donald Trump, 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.
In reality, the administration has demonstrated the exact opposite intent. The motive behind asking the question most likely is to isolate parts of the country where non-citizens tend to reside — especially Democratic districts in California — so as to weaken their congressional apportionment. The administration denies any such motivation, but since the Supreme Court first heard this case, new evidence has surfaced indicating that the census question was part of a specific Republican strategy to weaken Democratic Party representation.
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.
Taken together, these two Supreme Court rulings appear to sustain Republican efforts to commit electoral mischief in order to strengthen their power. If this is the court's way of defending the Constitution, imagine the nightmare if justices actually set out to undermine it.
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