If there was ever a case that exemplified the thesis of my book, Stolen Sovereignty — that the federal judiciary is irremediably broken and will always be a dead end for conservatives – today’s ruling on North Carolina’s redistricting map tops the list. In a 5-3 ruling, the court held that two federal House districts were “unconstitutionally” racially gerrymandered. More frustrating, Justice Thomas joined the four leftists from a principled and consistent view of gerrymandering that unfortunately gave the tie vote to the unprincipled outcome-based leftists.
The only thing worse than a legislative gerrymander is a judicial gerrymander. Republican states are caught between the rock of statute and a hard place of equal protection under the law. We are left with a system wherein the courts are now the final arbiter of redistricting and have placed Republican states in an untenable situation that will always give a permanent electoral advantage to the left.
States placed in unwinnable position by courts
On the one hand, states are forced by the Voting Rights Act to draw majority-black districts. So, by definition, they must factor in race. But now that in this generation blacks vote monolithically for Democrats, liberals want to spread out the black vote as much as possible (as they would any Democrat constituency) to maximize their political impact and win more 55-45 districts rather than confining themselves into a few 80-20 districts. That is a fine political consideration on their part when they control states governments. Likewise, Republicans will always want to confine rather than scatter their votes so that there are fewer majority-Democrat districts.
On the other hand, states are told that if they pursue majority-minority districts, they could be violating the Constitution by factoring in race. Justice Thomas has been consistent in that he views the entire VRA’s race-based considerations as unconstitutional. Race should not be a factor, period. The problem is, the other four justices, who only look at the political outcome, will always side with Democrats on redistricting. Thus, they believe that Democrats have a constitutional mandate to maximize the black vote to their advantage. Thomas merely believes race should not be a factor at all. North Carolina therefore suffers from the lowest common denominator of both views and loses in the high court.
In this case, Cooper v. Harris, North Carolina admitted that it created two majority-minority districts in pursuance of the VRA. Unfortunately for them, Justice Thomas views that as an automatic strike. Thus, even though the rationale for their map was a political bias, not a racial one, there was an automatic majority against them. This is a very scary precedent that will open the doors for Democrats to codify their racial advantage into law and into the Constitution. Justice Alito homed in on this point in his dissent and noted that the entire premise of these districts, dating back to the 1990 census when Democrats controlled the process, was already based on race pursuant to law and political outcomes that favor the majority party. Why should Republicans always get the short end of the stick?
North Carolina’s 1st and 12th districts were ruled unconstitutional by a three-judge panel of the Fourth Circuit last February. This, despite the fact that the districts were pre-cleared by the Obama Department of Justice and passed muster with the state’s highest court. So much for John Marshall’s promise to George Mason at the Virginia Convention that “there is no danger, that particular subjects, small in proportion,” being given over to the federal courts, “will render [state courts] useless and of no effect.”
Courts are a one-way street and a dead end for conservatives
What is so frustrating is that if we had five Clarence Thomases, we’d get the benefits of his consistent view against racial gerrymandering. States would not be forced to comply with the VRA at all. More importantly, true originalists like Thomas would take a different view of the courts to begin with. Courts are not the sole and final arbiter of politics. They merely abide by the Constitution for the purpose of the case that comes before them. Thomas understands the role of the court, but he was abiding by his own oath of office, which dictates to him that this section of the VRA is to be ignored. But who says the courts should be involved in political disputes to begin with and be able to decide such cases?
Also, Thomas has already stated , in “Evenwel v. Abbott” (2016), that as it relates to state legislative maps, states should have full autonomy to craft their districts, in stark contrast to the views of others on the court. Unfortunately, we are stuck with the liabilities of Thomas’ view but none of the benefits, because the other four are hypocrites.
We saw the same problem with the Supreme Court refusing to take the appeal when the Fourth Circuit “struck down” North Carolina’s photo ID and election integrity law. Whereas the conservative justices are principled and consistent and will sometimes rule against conservative political outcomes for procedural or doctrinal reasons, the liberal judges will lie, cheat, and steal to elicit the outcomes they desire. Last July, the Fourth Circuit issued an egregious decision folding the Democrat voting anomalies of same-day registration, early voting, and no requirement for photo ID into the Constitution. Yet by the time the case came before the Supreme Court, the Republican governor had lost reelection (partially because of this same lower court election decision), and the conservative justices felt that the GOP legislature no longer had standing to request an appeal. If the shoe were on the other foot with a Democrat state being sued, the liberal justices would certainly have taken up the appeal.
As I noted last week, unless Congress steps in, Democrats will use the courts to piggy-back their electoral advantage in every state onto our Constitution. While this case will have no bearing on North Carolina, which has already redrawn its maps following the lower court decision, other state maps, including state legislative districts, will be on the chopping block. Congress must either abolish parts of the VRA and free states from factoring in race to redistricting, or it must reform the jurisdiction of the courts.
While legislative gerrymandering is often unfair, judicial gerrymandering is even worse. Having the courts redraw districts is even worse because they do so arbitrarily, they tend to favor Democrats (surprise, surprise), their decisions are not uniform across the nation, and there is no recourse for the voters. In the case of North Carolina, the courts invalidated the state’s districts in middle of a primary, after absentee ballots had already been cast. Candidates who spent thousands of dollars and countless hours canvassing voters in one district were completely shut out of this election. Until and unless Congress devises an objective standard for redistricting, an elusive and dubious task in itself, the issue of redistricting should be left where the Constitution placed it: the states.
In an ever-polarized society, there is no objective and non-political way of mediating political disputes in the courts. Political disputes must be dealt with politically within the confines of the Constitution, not the judicial oligarchy.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.