There is a growing constitutional crisis whereby the federal courts are themselves engaging in judicial gerrymandering. The courts are vetoing the will of the people and using a double standard of racial preferences to award Democrats an unfair advantage in election law.
Federal courts — rather than elected officials and institutions — have slowly and perniciously made themselves the sole and final arbiter of not just federal districts, but state legislative districts and even county school board maps.
On Monday, the Supreme Court heard oral arguments in just the latest example of a long trend of federal tampering in free and fair elections. Now, depending on how the high court rules in the two cases before it this week — a federal redistricting case in North Carolina and a state redistricting case in Virginia — we will soon find out if Democrats will be granted a permanent advantage in electoral politics via judicial fiat.
How does it work?
Pursuant to Article I, Sec. 4 of the U.S. Constitution and federal law, each state decides upon the lines of its legislative districts at the federal level, and for various legislative and judicial districts at the state level. These are usually determined by elected officials at some level. The goal here is simple, but not always easy: take federal Census data and redraw the map lines to ensure that populations of legislative districts are evenly apportioned.
This power can also be used to redraw lines to break up the influence of particularly concentrated demographics in areas.
In response to the abuses of the Jim Crow era, Section 2 of the 1965 Voting Rights Act prohibits the redrawing of district lines with the intent “to deny or abridge the right of any citizen of the United States to vote on account of race or color.” The act also gives the U.S. attorney general the ability to oversee and enforce the law, and originally required southern states to pre-clear their maps with the DOJ until that provision was blocked by the Supreme Court in 2013.
The current legal trend is to take redistricting maps — which, in many cases, have already been approved — and litigate them in court with the complaint that they still violate the Voting Rights Act. In several cases, the courts implicitly determine that federal oversight on these issues is not enough and take it upon themselves to rule on the permissibility of a specific map under the auspices of the VRA and, you guessed it … the 14th Amendment.
What’s going on in Republican-controlled states?
This has led to recent redistricting cases in states such as those in Virginia, Florida, Wisconsin, and North Carolina. In North Carolina, the Fourth Circuit ruled that the Tarheel State not only had to redraw its congressional districts mid-election, but also had to develop plans for another special election in the coming year after it threw out the state’s judicial district map.
(Note: The judicial efforts are especially absurd in cases like North Carolina’s, where the redistricting maps were approved by the Department of Justice under Section 5 of the Voting Rights Act. Yet, the Fourth Circuit “struck down” their maps and Justice Anthony Kennedy signaled during oral arguments that he would side with the four ultra-liberal justices to uphold the lower court’s ruling.)
What about some of the other incredibly ridiculous district designs, like those in Maryland, Pennsylvania, and Illinois? Is nobody kicking up dust over them? The courts have rejected this. If you’re constitutionalizing a political question, then the answer to that question has to be evenly applied — regardless of the amount of melanin in someone’s skin or their party affiliation.
Thus, if there is a 14th Amendment right for black Democrats to have their influence spread out to as many districts as possible, then there must be a 14th Amendment right to have white Republican voters’ influence spread out to as many districts as possible as well. Equal protection is equal protection. Yet, the courts seem to only throw out Republican gerrymanders, not Democrat ones (which tend to be even more geographically erratic because natural geography limits their ability to expand outside their confined urban-centric base).
What’s the problem with this?
Then there is the reality that contrary to breaking up demographic constituencies, many of the maps pull them together. One could statistically argue that such districts would actually give minorities a statistical punch above their weight in Congress, than if the lines were drawn otherwise.
When a minority votes near-monolithically for one party and lives in geographically distinct enough areas to be lumped together via gerrymandering, of course that is the result of intentional action. That’s not racially motivated; it’s party motivated. How much smaller would the Congressional Black Caucus be if those districts weren’t drawn as such?
First, in order for the courts to rule that maps drawn with political intent are racially discriminatory, they assumed that minorities are going to monolithically vote for Democrats every single time. This is a false assumption and just bad law when one realizes that the whole of American political history displays the continual birth, death, and realignment of political coalitions.
If you grant one voter bloc a new constitutional right to maximize their potential, then why not grant another bloc (of another demographic) the same constitutional right? What about white rural voters? What about white rural voters in blue states (listed above) who have also had their representation sliced up? Why is nobody crying “foul” and “racism” over them?
Moreover, Republican-controlled states are now caught between a rock and a hard place —between the Voting Rights Act and the contemporary legal profession’s version of the 14th Amendment. The VRA forces states to create “black districts” as a response to historical injustices in the South.
Now, DNC hacks disguised as judges are saying that the 14th Amendment requires states to essentially use black voters to maximize the influence of the preferred party of those voters. Thus, it is Democrats who scatter more African American voters, while Republican legislators seek to confine them to limit the number of Democrat districts. These are political arguments that are won by those in control of state governments; they are not legal arguments. And to the extent one can litigate these issues, states are placed in an untenable situation.
Democrats are suing Virginia for drawing 12 state House districts around the Richmond area, with the black proportion of the district’s population set at 55 percent. They contend that this poses a racial bias by clumping blacks together and reducing their statewide influence. This case is a quintessential example of the frivolous nature of the redistricting litigation and the catch-22 states face. In reality, nine of the 12 districts in contention have a smaller share of African Americans than before, and two others were increased from 53 percent to 55 percent.
During oral arguments in the Virginia case, Justice Sam Alito rightfully expressed doubt that the courts should handle such political issues. “This is all … very, very complicated,” Alito said. “Maybe there’s no way around it, but isn’t this just an invitation for litigation in every one of these instances?”
The road ahead
This is an issue that is going to persist long after President-elect Donald Trump is sworn in next month.
Former Attorney General Eric Holder announced in October that he would be heading up a political action committee aimed at redrawing election maps nationwide in the name of “fairness.” Writing for Conservative Review, Hans von Spakovsky, senior legal fellow at the Heritage Foundation, remarks at the announcement:
The most amusing part of the announcement was Holder claiming, without any apparent embarrassment, that the purpose of the National Democratic Redistricting Committee will be to obtain “fair maps that represent our diverse communities.” Apparently, the way to get “fair” maps is to hire Democratic partisans like the executive director of the Democratic Governors Association, who will be the new president of the NDRC.
Barack Obama will also be working with the NDRC after he leaves office, which the Washington Post rightly called “a rare, if not unprecedented, step in the modern era.” His work for a partisan political action committee — the objective of which is to help only Democrats in their redistricting battles — is certainly a far cry from his prior claims about how the redistricting process should be reformed as a matter of fairness for all Americans.
In reality, there’s simply no way to draw district lines that will not affect political outcomes. Some maps will benefit Democrats, while others will benefit Republicans. Some maps will benefit incumbents, while other redrawings will make those incumbents easier to unseat.
Despite the incessant claims of the Left’s activists, this isn’t the realm of constitutional jurisprudence; this is politics. Plain and simple. That the federal judiciary is engaging as the final arbiter of election maps speaks directly to Thomas Jefferson’s concerns when he wrote in 1821:
[T]he germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little to-day & a little tomorrow, and advancing it’s noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the states, & the government of all be consolidated into one.
In short, these cases do not represent the federal judiciary stepping in to rid the country of some grave racial injustice. Rather, it is the tampering of political matters and implicitly rigging the game preemptively for a specific political party, completely removed from the scrutiny of the American voter.
There is a reason Section 5 of the 14th Amendment tasks Congress with enforcing the compliance of states with the civil rights era amendment — they represent the people and the states of the entire union. The federal judiciary, however, represents nothing but the legal profession.
Author: Daniel Horowitz Nate Madden