WILL THE REAL SHERIFF PLEASE STAND UP?

If you have not noticed lately, the news has been dominated by redistricting battles across the country. The debacle resembles a grade school cafeteria food fight. You cannot be blamed for your confusion. This sphere of politics is normally left to the parliamentarians, the people that actually read the rules to things like Risk, Monopoly, or other children’s games.

In fact, the entire ordeal feels like a childish event that we did not RSVP to or care to play. Who would play a game where the only prize is frustration? We have only been forced to pay stricter scrutiny to this department of government because politicians and justices have employed it to their own selfish ends. They have forgotten the order of democracy. We must remind them.

It all started down in Texas, as most dastardly things do. Normally, congressional maps are redrawn every ten years after the census is taken. While most states give a wink and a nod to objective redistricting, some took liberties over the years and drew districts here and there to secure a win. However, never in modern history have we witnessed such an abandonment of convention and blatant power grab, designed not for the betterment of American democracy, but for the sole purpose of silencing minority political participation. We see this perversion of liberty in our courts and in our legislatures. We saw it first in Texas.

Texas Republicans openly declared war on the voting rights of their own constituents by initiating a mid-decade redistricting program. If that was not bizarre enough, their plan transparently aimed at and gunned down the political power of minorities. Their goals could not be more obvious or antagonistic to our tradition of American democracy: one person, one vote. Instead of drawing districts objectively and impartially, they drew them politically and insincerely. Democratic strongholds were grouped together to reduce the total number of seats they would win.

Not to be outdone, and maybe to gain attention for an upcoming national election, the governor of California, Gavin Newsom (who is back from serving time in social isolation for having an affair with the wife of his campaign manager and close friend), announced he was fighting back against Texas Republicans by kicking off a mid-decade redistricting session of his own.

Again, we saw the party in power begin reshaping government not for our rights and liberties but for their own power and prowess, though this time it was the Democrats. Both sides in this tit for tat openly bragged that their actions erased the advantage the other secured. Both sides ignored the fact that they were acting contrary to the fundamental premise of the (lower case “r”) republican form of government: voters should choose their politicians instead of the other way around.

Right? Virginia did not think so. It tried to jump into this nerdy wrestling match itself. Before it could land any punches though, courts stepped in and blocked their gambit. This did not stop President Trump. Historically, he has viewed court opinions as advisory statements rather than judicial precedent other branches of government have to follow. Currently, he is busy proving that statement true by going around the nation and threatening Republican states with retribution if they do not abandon notions of fair governance and objective redistricting and politically redraw their maps to his liking. Against this berating, some states have shown true courage, and ones we might not expect. Unfortunately, Indiana Republicans learned the harsh realities of standing on the cliffs of principles prone to the biting winds of political bullying.

Can we look to the high Court for protection of our American democracy? No. On this matter, the Supreme Court put the high in high Court, at least it seems they were when they wrote their opinion on the recent case addressing this topic: Louisiana v. Callais. Here, the state Louisiana, per Section 2 of the Voting Rights Act, designated two districts as majority-minority. This meant that those districts and the voters within them could not have their votes diluted through gerrymandering. At this point, it is important to consider that this law is only in effect because for one hundred years minority voting rights were diluted through gerrymandering, poll taxes, literacy tests, intimidation, violence, and more. Bad people are creative.

Writing for the majority, Justice Alito ruled that claimants must prove that states intentionally meant to dilute minority voting rights to succeed on claims of gerrymandering, especially related to minority vote dilution. Who could ever find such evidence? Put another way, what politician would be so stupid to reduce that intention to writing or broadcast it through other means?

Remember though, that justices, like politicians, are people with agendas of their own, and quite often contrary to their role and jurisdiction. On that point, Alito, whom many see as maybe the most political actor on the court, said, “Allowing race to play any part in government decision-making represents a departure from the constitutional rule that applies in almost any other context.” This is directly inapposite to what the law says, so this might be the clearest example of (conservative) judicial activism and reminds us of when the high court tried to rewrite the 14th amendment to the constitution not long ago. It is also completely contrary to the reasoning he has used for other cases, that the text of the law decides everything and that you cannot look beyond the four corners of the document to change the meaning of the words on the laws.

But he did so here. In justifying the court’s change of course, Alito highlighted developments in recent years, including “social change” in the South, where most of the race-based redistricting challenges arise. Funny though how much he has changed from a textualist or originalist - and a legal groupie of the late Justice Scalia - and is now using the methods of liberal justices whom he has historically derided to get to his point. Why did Alito reverse course and swap out the logic he has applied to nearly every other case in his whole career and go beyond the text of the law to justify his rewriting of it? Does he have multiple personality disorder? No, his reasons are transparent: pure politics and judicial activism.

Aside from the merits of this case, one thing is certain: conservative members of the supreme court are acting as legislators and undoing the work of congress in a manner they used to excoriate. Why should nine unelected people, and really just a few conservative political actors within that group, decide these issues and undo everything Americans voted for many times over the last sixty years? The political agenda of the court has never been more in doubt when it strikes down legislation it does not like and points, not to laws or the constitution, but to their own policy justifications. This is a perversion and the same Justices that ruled on this matter said the same thing when they lost on similar cases in the past.

There is a broader point here. Legislators and Justices and the President are each trying to fashion the playing field of our democracy for themselves. They forget that the construction and management of liberty’s landscape is subject to our authority and control. They are all running afoul of their jurisdiction. We should fly around them and remind them who the real sheriff is.