Supreme Court’s Gerrymandering Decision a Danger to Democracy

June 27, 2019

Justice Kagan's minority opinion calls out the threat that the decision represents to our right to vote and to our democratic future. Suzanne Almeida of Common Cause discusses the implications

Justice Kagan's minority opinion calls out the threat that the decision represents to our right to vote and to our democratic future. Suzanne Almeida of Common Cause discusses the implications


Supreme Court's Gerrymandering Decision a Danger to Democracy

Story Transcript

MARC STEINER Welcome to The Real News. I’m Marc Steiner. Good to have you all with us. Before the Supreme Court takes off for the summer, they handed down a number of decisions today— some of which could be critical to the future of our democracy. By a five to four vote, SCOTUS decided that the claims of partisan gerrymandering do not belong in the federal courts. They used the argument that voters and elected officials should decide how districts are configured and that’s it. It effectively reverses decisions of lower courts, affecting Maryland, Michigan, North Carolina, and Ohio where they ordered new maps to be drawn. And it stopped a retrial in Wisconsin in a similar case when last year, the Supreme Court decided to throw the decision back to the lower courts on procedural grounds. So what does all this mean and portend for the future of our democracy? How serious is this? We’ll explore that as we talk with Suzanne Almeida, who is Redistricting and Representation Counsel for Common Cause. We’ll also explore other decisions like this citizenship question on the census, where a decision was also made today. Suzanne, welcome. Good to have you with us here on The Real News.

SUZANNE ALMEIDA Thank you for having me.

MARC STEINER So we’ve covered this one before with folks from North Carolina and with Common Cause and it’s a very big, serious decision. Let me begin this way. I’d liked to, kind of, show you and our viewers two quotes. The first one coming from Chief Justice Roberts and the next one by Justice Kagan and her response to that. So let’s take a look at these two. Justice Roberts wrote, “Extensive partisanship in distracting leads to results that reasonably seem unjust, but the fact that such gerrymandering is incompatible with democratic principles does not mean that the solution lies within the federal judiciary. We conclude that partisan gerrymandering represents present political questions beyond the reach of the federal courts.” That, in the majority opinion, is what he wrote and then, Elizabeth Kagan came back with a rejoinder in her dissent and this is part of what she said. “For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities, and not just any constitutional violation. The partisan gerrymanders in 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 have debased and dishonored our democracy, turning upside down the core American idea that all government power derives from the people.” So, they have very different views of what it means to be “derived from the people.” Parse it out for us. What does this mean? This is a huge decision, it seems to me, but let’s take their two opinions and how you would describe them.

SUZANNE ALMEIDA I think that there’s a fundamental disagreement between Chief Justice Roberts and the majority, and Justice Kagan and the dissent. Really, this disagreement comes down to whether or not the court could come up with a standard to judge partisan gerrymandering cases [inaudible]. And the North Carolina plaintiffs, including Common Cause, and the Maryland plaintiffs all have put forth standards that we thought were good enough. They provided a clear way for the court to make its decision. Unfortunately and with a little, you know, some deep sadness on our part, the Supreme Court majority found that there just was no possible way for them to come [inaudible] and quite frankly, that’s a little cowardly. And that is not what we would have expected from a Supreme Court.

MARC STEINER Well, it seems to me that one of the issues here is a very political question. I mean, it becomes—The decision on who to vote for can be fought on both sides, but a lot of it comes down to who you put on the federal judiciary. Especially in the last almost 60-odd years since Brown v. Board and others, the courts have become really critical to defining our democracy and what that means. And so, with the voting rights decision that was decided by the court— a few of the other members are not there anymore— and this decision, I mean, this to me whether you’re a Democrat or a Republican doesn’t make any difference because if you’re talking about the Maryland case, it’s about how Democrats have gerrymandered districts for their benefit. But this, kind of, to me goes to the heart of what our democracy is about. And it seems to me it could really portend some really dangerous things for the future.

SUZANNE ALMEIDA Absolutely. I mean, with a decision like this, it is entirely possible that legislators from both sides of the aisle— as you said, this is not a Democrat problem, it’s not a Republican problem, it is a politician problem— draw districts to divide up people based on their political affiliation and really, deny them the right to vote for a representative of their choice. It’s important to remember that this is, you know, when we’re talking about partisan gerrymandering, you often have what seems like a very partisan lens, but this is not about bad actors from just one party. This is about the difference between people in power who want to keep it, and the people who are like us— voters— and want to be able to hold the folks in power accountable. Partisan gerrymandering is one of those things that makes it nearly impossible in some places to hold politicians accountable for the actions that they take.

MARC STEINER Because it dissuades people from voting. I mean, people can go, why should I vote? What difference does it make? I mean, you know, here in Maryland, I watch how they made a third congressional district. They made it all squiggly and crazy and stupid looking so they could elect a Democrat. The same thing happened in western Maryland where they voted out a Republican when the state really could be, should be, five-three-four-four, Democrat-Republican. You look at North Carolina where this splits evenly divided and yet, the entire delegation is almost Republican, and they’ve done it again to ensure that black voters and other voters don’t have a say. I mean, this is—And I don’t want to get hyperbolic about this, [laughs] but it seems to me this really does go to the core of things. The question is, what’s the response from Common Cause? Does this mean that the answer has to be more political than judicial in terms of what the fight is next for this democracy? What do you think?

SUZANNE ALMEIDA So it’s a little bit of both, right? So this is certainly not the result we hoped for, but it is not the end of the world.

MARC STEINER Seems pretty close. I’m sorry. [laughs]

SUZANNE ALMEIDA We’ve been saying that a decision like this is just instead of the wind in our back, it’s the wind in our face. So, we are working across the country, activists and organizers from both sides of the aisle are working across the country to change the way maps are drawn. There are still state court avenues of litigation that are open, so I want to particularly look at the Common Cause v. Lewis lawsuit, which is in North Carolina in state courts still pending, challenging the state legislative districts. There are other states where we know that kind of litigation is possible and you’re right. This really does come down to how we as people, we as people who live in the United States, want you to respond to this and I wouldn’t say that what we need to do is we need to fight harder. That means we just need to fight in our state courts, in our state legislators, contact our congresspeople over HR1 that has an independent [inaudible] redistricting commission component to it. We’re not down. We’re knocked down a little, but we’re not out of this fight.

MARC STEINER Well, spoken like a true fighter. I like that [laughs] and I appreciate that. And sometimes, I guess I get a tad too drawn into these things and see this and go, now what’s there going to be next, and how are we going to do this? But let’s look at another aspect of what happened at court today and that is the decision that was made around the census and the question of nationality and citizenship. The Supreme Court sent it back to the lower court. And so, that means that the July 1st date is looming in terms of when something has to go into print until we can do the next census. This is, in response to that, this is what Trump had to say in his tweet. Trump tweets, “Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020. I have asked the lawyers if they can delay the Census, no matter how long, until the…” So, what does that mean?

SUZANNE ALMEIDA I’m not sure what President Trump is getting at. What happened today was that the Supreme Court agreed with the district court that Secretary Ross’s and the Commerce Bureau’s justification for putting the citizenship question on the 2020 Census was a pretext. Essentially, it was a falsehood. It was not the real reason. And so, they have sent it back to the district court for additional litigation, which means that as of now, you’re right, the citizenship question is not on the 2020 Census. I think that there are a couple of important points to make. One is that although the government in their filings has been saying July 1 is the drop-dead date, the chief scientist for the Census Bureau, John Abowd, said in his deposition [inaudible] which is again the case that was decided today, that it’s really in October. That the drop-dead date is really in October, so we have some time before, you know, this whole thing needs to be resolved. Not a lot of time, but the court moves slowly.

MARC STEINER But that means that Trump and those who want to ask the question about citizenship, which could, kind of, change the nature of congressional districts and other districts in this country because everybody won’t be counted about who lives there, also has until October to make this work.

SUZANNE ALMEIDA Right. But I think the key part here is that there’s still litigation pending in Maryland. There are the MALDEF case, which challenges citizenship on a number of grounds, including whether or not the Trump administration intentionally intended to discriminate against people of color by adding the citizenship question. That question is still open for litigation in the Maryland case and that really makes a difference, right? This additional time means that that claim has time to move forward. Additionally, in the New York case [inaudible] the government and the plaintiffs are going to continue to fight about whether or not the citizenship question should be on the census. But honestly, particularly given the documents that have come to light as part of the Common Cause v. Lewis discovery process from Thomas Hofeller, the maestro of Republican redistricting, we know that there is additional evidence of intent. There is additional evidence of whether Secretary Ross was not telling the truth about what he wanted to do.

MARC STEINER Right.

SUZANNE ALMEIDA But, quite frankly, more time is going to allow this evidence to come into the record in a way that it has not before.

MARC STEINER Well, this and other cases I hope we can continue to cover the next couple of days we see these decisions come down and see what’s going on. Suzanne Almeida, I appreciate you taking the time with us today. Suzanne Almeida is Redistricting and Representation Counsel for Common Cause, joining us from Washington, DC. We look forward to going in-depth in these other issues, as well. Suzanne, thank you so much for today.

SUZANNE ALMEIDA Thank you for having me.

MARC STEINER And I’m Marc Steiner here for The Real News Network. Thank you all for joining us. Take care.