How Republicans’ zeal for gerrymandering could blow up in their faces

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Let’s talk about a few datapoints that, on the surface, have nothing to do with the Supreme Court — but that in reality could determine whose ox is gored by two upcoming partisan gerrymandering decisions.

The first is a recent Ipsos poll showing that President Donald Trump only receives between 36 and 38 percent of the vote against any of the Democrats named in that poll. Against former Vice President Joe Biden, the current frontrunner in the Democratic primary, Trump loses 50-36. And, while the Ipsos poll shows Trump performing worse than some others, the Real Clear Politics polling average shows Biden winning by more than eight points.

Meanwhile, 3-month U.S. Treasury bonds recently started producing a higher yield than 10-year bonds. This phenomenon, known as a “yield curve inversion,” occurs when investors believe that the economy’s long term prospects bode ill, and so are willing to accept a lower rate of return for one of the safest investments on the planet — a long-term U.S. government bond.

Yield curve inversions are often harbingers of recession.

Trump, in other words, could have to campaign with no major policy accomplishments besides a tax giveaway to the very rich, and he may need to do so while the economy is falling apart. Meanwhile, polls already suggest he’s an underdog, even with a fairly strong economy at the moment.

Which brings us back to Rucho v. Common Cause and Lamone v. Benisek, the two Supreme Court cases challenging partisan gerrymandering.

Hit by a wave

The thing about gerrymandering is that, barring a well-timed electoral wave, it tends to perpetuate itself. Virginia’s House of Delegates is so rigidly gerrymandered to benefit Republicans that Democratic candidates won the statewide popular vote by more than 9 percentage points in 2017, yet Republicans kept a narrow majority in the statehouse. In Wisconsin, Democratic candidates won 54% of the popular vote in the 2018 state assembly races, yet Republicans control an astounding 63% of the assembly seats.

Thus, unless Democrats win the states of Virginia and Wisconsin in a crushing tidal wave that washes Republicans into the sea, the GOP will likely control the Virginia House of Delegates and the Wisconsin state assembly in 2020, when new maps must be drawn.

But early polling data suggests that such a wave is possible in 2020, as under-performing presidential candidates tend to drag down their entire party. And if 2020 is a recession year, a Democratic wave might be inevitable.

Up until this point, the Supreme Court’s Republicans have been quite hostile to partisan gerrymandering challenges — although, oddly enough, Brett Kavanaugh appeared more open to these challenges than his four Republican colleagues during oral arguments last March. The smart money suggests that the court will split 5-4 along party lines, quite possibly holding that federal courts aren’t even allowed to consider partisan gerrymandering cases.

That would be the wrong answer under the law — the First Amendment prohibits viewpoint discrimination, and gerrymandering is a way of discriminating against voters based on their support for one party or the other. But it’s easy to see why Republicans would want such a result. After all, Republicans walloped Democrats in 2010, the last redistricting year. And, if 2020 is an ordinary election, Republicans are likely to emerge from it well-positioned to keep their gerrymanders in place.

But if 2020 is a Democratic wave election, Kavanaugh and his fellow partisans may come to regret taking partisan gerrymandering challenges off the table. After ten years of watching Republicans win elections regardless of what the voters preferred, Democrats are not likely to be in a conciliatory mood in 2020. If they trounce the GOP, Democrats will undoubtedly use their new legislative power to draw the most spiteful, meticulously gerrymandered maps the nation has ever seen.

Meanwhile, it is likely that any Republican on the Supreme Court could prevent such an outcome by joining with their Democratic colleagues to declare partisan gerrymandering unconstitutional.

The death of neutrality

The flip-side of this argument is that it is an open question whether Democrats should want this Supreme Court to hand down a decision striking down gerrymandering. That’s not just because Democrats may stand to unfairly benefit from gerrymandering, but because a Republican Supreme Court could potentially apply an anti-gerrymandering precedent selectively to benefit the GOP.

“When, in writing for the majority of the Court, I adopt a general rule, and say, ‘This is the basis of our decision,’” the late Justice Antonin Scalia once warned, “I not only constrain lower courts, I constrain myself as well.” That’s because “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.”

That’s an accurate description of how judges should behave, but it’s hardly an accurate description of how this Supreme Court does behave. One of the most important principles in any system of law is equal justice under the law. If the Supreme Court holds that a certain kind of speech is protected by the First Amendment, it should apply that rule equally to Democrats and Republicans. If it holds that the Constitution protects religious liberty, it must protect Christians, Muslims, Buddhists, and Satanists in exactly the same way.

But that’s sure not how this Supreme Court has behaved. Just compare its decision to tie the law in knots, in order to protect a conservative Christian baker who doesn’t want to obey civil rights laws, with its decision upholding Trump’s Muslim ban. Or it’s decision refusing to grant relief to a Muslim inmate who wanted to be executed with his imam present — in an Alabama prison that permitted Christian inmates to have a Christian chaplain present.

The danger of a decision striking down partisan gerrymanders, in other words, is that this Supreme Court could very well apply such a decision only to Democratic gerrymanders, while leaving Republicans free to run roughshod over democracy.


Reposted from ThinkProgress

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

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