Arizona Eagletarian

Arizona Eagletarian
WE Persist!

Wednesday, July 10, 2019

Speaker Pelosi must take heed. Also, anyone still enamored with Joe Biden as a presidential candidate should take heed

Cautious, careful people, always casting about to preserve their reputation and social standing, never can bring about a reform. Those who are really in earnest must be willing to be anything or nothing in the world's estimation, and publicly and privately, in season and out, avow their sympathy with despised and persecuted ideas and their advocates, and bear the consequences.  -- Susan B. Anthony
If you perhaps need refreshing about whether one of the greatest revolutionaries in our nation's history (Her Story, Susan B Anthony) had a right and the gravitas to authoritatively make such a declaration, I recommend visiting susanb.org.

Notably, Miss Anthony was a powerful voice in the suffragist and abolitionist movements.

If she was alive today, she would no doubt be leading the effort to ratify the Equal Rights Amendment.

When I was a child, in grade school in Rochester, NY, I had the opportunity to visit the Susan B. Anthony House and Museum. Wish I could go again very soon. 

Her story stirs my soul which longs for my female progeny to be fully endowed with the personal sovereignty and all the civil rights the US Constitution grants to all citizens of our great land.

And lest Herrod (Cathi) think this is only about abortion rights, just today, Teri Kanefield blogged about women's rights in light of the Jeffrey Epstein situation.
People are aghast, wondering how the GOP can approve of perverts and molesters.
I can tell you.
If you go back to America as it was before 1920, that stuff wasn’t illegal.
Trump & pals (among other things) are political reactionaries. They want to take us backwards. [...]
MAGA means take America back to the time when there were very few restrictions on white men.
They could grab land!
They could grab women!
Before the 13th Amendment, they could grab people and enslave them!
Before regulatory agencies, they could cheat!
Before laws against money laundering, they could get rich with stolen money! [actually, despite money laundering laws, there ARE ways around them]
Those were the days.
MAGA means back to the olden days when white men could grab whatever they wanted.
Grabbing women was particularly easy. In fact, rape (mostly) wasn’t even about the victim.
You see, for much of world history, rape was a property crime.
An unmarried girl was her father’s property. A married woman was her husband’s property.
If a virgin was raped, the property damage was to her father.
If she was married, the damage was to her husband.
If she wasn’t a virgin and wasn’t married, there was no crime, because the property was already damaged.
A man couldn’t rape his wife (his own property) and rape of enslaved women wasn’t a crime. Even after the Civil War, rape of a black woman wasn’t recognized. [...]
Through most of the 1800s, the age of consent for a girl was usually between 10 and 12.
Roy Moore and Jeffrey Epstein would have been within the law.
Young victims were generally vulnerable girls—poor, orphans, struggling to find food. A rich man who liked young girls had it made.
By about 1920, most states had raised the age of consent to between 16 and 18.
Epstein followed the pattern: He targeted girls as young as 13 who needed money. Many came from disadvantaged homes or foster care.
After becoming president, Trump said that “‘Our laws are so corrupt and stupid.”
For what he meant by “corrupt,” click here:
It’s clear what he meant by stupid.
Trump and pals [Dominionist anti-feminist Cathi Herrod is one of those pals] disregard the laws and regulations that they think are “stupid” and shouldn’t should exist.
They want to take us back to the days when men had freedom to grab.
“But they’re doing it! They’re rolling us backwards!”
If you ever catch (or hear or read) Herrod claiming to be all for the health and well-being of women and girls of child-bearing age, DARE her to denounce Trump and his ilk. And mock her mercilessly if she refuses to so denounce. 

Tuesday, July 9, 2019

What is David Schweikert going to do about the hideously UNAMERICAN treatment of children seeking asylum?

You may remember that on June 25th, I attended a telephone town hall held by David Schweikert, the guy who "represents" me in Congress. Except he doesn't. He represents his Big Money owners and some extreme Right Wing voters who he let have a voice at that town hall. Regardless of where they live.

I mentioned that I had hoped to speak with David a day or two after the townhall in which I had registered to ask him a question but never got a turn, despite signaling my request immediately upon connecting to the conference call.
Anyway, I'm hopeful that David and I can have a direct conversation later this week. If we do and it turns out well, I'll let you know.
It turns out that I never heard from him. Unfortunately, I'm not surprised.

David's push poll during that town hall event identified border issues as the number one concern of listeners that evening. I'm confident he wasn't surprised about that. But did he expect those venomous callers to approve of the torture and abuse of children in our own state?

IS he even surprised about the latest reports, just this afternoon about mistreatment of children at a detention center in Yuma?
July 9, 2019, 5:30 PM MST
By Jacob Soboroff and Julia Ainsley
WASHINGTON — The poor treatment of migrant children at the hands of U.S. border agents in recent months extends beyond Texas to include allegations of sexual assault and retaliation for protests, according to dozens of accounts by children held in Arizona collected by government case managers and obtained by NBC News.
A 16-year-old Guatemalan boy held in Yuma, Arizona, said he and others in his cell complained about the taste of the water and food they were given. The Customs and Border Protection agents took the mats out of their cell in retaliation, forcing them to sleep on hard concrete.
A 15-year-old girl from Honduras described a large, bearded officer putting his hands inside her bra, pulling down her underwear and groping her as part of what was meant to be a routine pat down in front of other immigrants and officers.
The girl said "she felt embarrassed as the officer was speaking in English to other officers and laughing" during the entire process, according to a report of her account.
A 17-year-old boy from Honduras said officers would scold detained children when they would get close to a window, and would sometimes call them "puto," an offensive term in Spanish, while they were giving orders. [more]
My indignation at this moment is such that if David does NOT publicly and emphatically denounce the sexual assault and other harsh treatment of children by employees of the federal government and actively confront GOP House AND Senate leadership to demand such UNAmerican conduct be immediately halted, he deserves to be ousted from office, not later than the November 2020 election.

He probably expects that to be the case given the ethics problems he has gotten himself into already... in which case his ouster might come sooner, and not necessarily by way of the voters choosing a Democratic successor.

Thursday, July 4, 2019

WTF is Really Wrong with Trump? Or, Salient Observations on Leadership

A prince will never lack for legitimate excuses to explain away his breaches of faith. Modern history will furnish innumerable examples of this behavior, showing how the man succeeded best who knew best how to play the fox. But it is a necessary part of this nature that you must conceal it carefully; you must be a great liar and hypocrite. Men are so simple of mind, and so much dominated by their immediate needs, that a deceitful man will always find plenty who are ready to be deceived. Machiavelli
The Presidency is … preeminently a place of moral leadership. All our great Presidents were leaders of thought at times when certain historic ideas in the life of the nation had to be clarified…. That is what the office is—a superb opportunity for reapplying, applying in new conditions, the simple rules of human conduct to which we always go back. Without leadership alert and sensitive to change, we are all bogged up or lose our way. Franklin Delano Roosevelt
To link oneself with the masses, one must act in accordance with the needs and wishes of the masses.… There are two principles here: one is the actual needs of the masses rather than what we fancy they need, and the other is the wishes of the masses, who must make up their own minds instead of our making up their minds for them.… We should pay close attention to the well-being of the masses, from the problems of land and labour to those of fuel, rice, cooking oil and salt.… We should help them to proceed from these things to an understanding of the higher tasks which we have put forward.… Such is the basic method of leadership. Mao Tse-tung
Burns, James MacGregor. Leadership (Harper Perennial Political Classics) . Open Road Media. Kindle Edition. 
Put another way, here is the basic contrast between the bumbling incumbent and the best candidate to succeed him after the 2020 election.

There will be intensifying bluster from the incumbent as he becomes increasingly beleaguered. He's already overwhelmingly insecure.

But in my opinion, there are only two Democratic candidates who are capable of changing the game. And as we have seen over the last three years (including some of the 2016 campaign), the incumbent is cleverly qualified to dominate the game/campaign as it has traditionally been played.

Elizabeth Warren has already changed the game by contrasting the bluster and demagoguery with clear rhetoric, realistic visionary plans for the kind of change that needs to happen in America today, and deep conviction with understanding of how it needs to be.

From an interview American Prospect executive editor David Dayen conducted with Warren recently,
EW: Remember, Congress has got a lot of muscle if it decides to use it. But I want to make two other points. The first is current law gives the Justice Department and the FTC [Federal Trade Commission] and the banking regulators a lot of power to move now. Even without Congress, a president who put a strong team in place could change antitrust enforcement in this country, without a single change in the laws from Congress.
DD: And it’s interesting you say the banking regulators, because people don’t realize how much power is in, you know, other agencies, not just the FTC and the Justice Department.
EW: Exactly right. I picked banking, but you’re exactly right. But it’s the reminder—There’s a lot we could do right now. But also, and this is what I argue should come out of all this, there are places where Congress should draw a bright line in this. So I have a plan to break up the big platforms. If a platform is doing more than a billion dollars in business, the platform has to be broken off from all of the ancillary businesses. And there’s just—We shouldn’t have to litigate it. Just make it happen. It’s too much concentration of power. And so I’m both ways on this: there’s a lot we can do without—I’m delighted Congress is doing this. There’s a lot we can do, even if Congress doesn’t change any law. 
Kamala Harris has a rhetorical style that will cut through the incumbent's bluster like a hot knife sizzling through butter. Her prosecutorial chops will cut him down to size in two seconds flat should they appear on a debate stage together.

There are numerous reasons I prefer Warren, but I also very much like Harris. Of course, a Warren/Harris 2020 ticket would be revolutionary for several reasons.

Nevertheless, please ponder the quotes above and let's get this thing done.

Sunday, June 30, 2019

The Supreme Court has failed the Constitution



By Michael Waldman and Eliza Sweren-Becker, The Washington Post
Posted Jun 30, 2019 at 12:15 AM
Gerrymandering is nothing new. It happens when political insiders draw district lines to benefit themselves or their parties, or to squeeze minorities out of power. In the very first congressional election, Patrick Henry drew a misshapen district in a bid to keep James Madison from winning. But lately, with digital technology and partisan ruthlessness, gerrymandering has gotten much worse. Highly precise gerrymanders dilute the voting strength of an emerging nonwhite majority.
Gerrymandering may not stop the underrepresented from gaining power, but it can slow fair and accountable government. Consider North Carolina, one of the states whose rigged maps were blessed by the Supreme Court on Thursday. North Carolina’s electorate is evenly divided, yet the congressional map is deep-red; Republicans hold 10 seats, Democrats only three. How could that happen? The legislator in charge explained he would have created an even starker imbalance had it been feasible: “I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
On Thursday, five conservative justices said there was nothing they could do about this. Gerrymandering, they ruled, was a “political question.” That sudden reluctance to get involved in political matters is especially rich coming from the court that struck down a century of campaign finance law in Citizens United and gutted the Voting Rights Act in Shelby County a few years after that.
The framers, keen students of human nature, were acutely aware of abuses of power. Concern over fair representation was one of the reasons they staged the revolution and wrote the Constitution. “No taxation without representation” was the slogan of the original tea party. They worried about corrupt England, with its malapportioned “rotten boroughs,” and fretted about Old Sarum*, a hilltop in England with no people but a seat in Parliament. John Adams said the first principle of a republic was that the legislature should be “in miniature, an exact portrait of the people at large.”
They wrote these concerns into the Constitution in a provision called the elections clause. It gives states the power to set the “times, places and manner” of elections, but gives Congress the power to override as a check against self-interested state politicians. It’s an unusual provision — one of the few that gives the national government the authority to intervene in state law.
Two delegates from gerrymandered South Carolina tried to strike the language when the Constitution was still in draft. Madison was aghast. He found it essential since, as he said, “It was impossible to foresee all the abuses that might be made of the discretionary power.” Madison knew that insiders would try to draw district lines to “favor the candidates they wished to succeed.” But he believed the people should choose their representatives, not the other way around.
Similar concerns were raised as the Constitution was ratified by the states. At the Massachusetts ratification convention, Theophilus Parsons warned that without federal oversight, “in times of popular commotion, and when faction and party spirit run high, (it) would introduce such regulations as would render the rights of the people insecure and of little value,” and would “make an unequal and partial division of the state into districts for the election of representatives.” Sound familiar?
In their wisdom, the framers pointed the way for what must happen next. When the Supreme Court refuses to step in, Congress and the states have the power to end extreme and abusive partisan gerrymandering. Just as the elections clause envisions, the House of Representatives this year passed a national requirement for states to use redistricting commissions as part of H.R. 1, the For the People Act. Senate Majority Leader Mitch McConnell, R-Ky., is blocking it from a vote in the Senate. Without irony, he calls it a “power grab.” The Supreme Court plainly seems to disagree.
And just this month, New Hampshire’s legislature sent a bipartisan bill to Gov. Chris Sununu that would create an independent advisory redistricting commission to redraw the state’s political boundaries. The state would join others including California, Arizona and Ohio in using independent panels. In November, voters passed five ballot measures to curb gerrymandering. Michigan, Colorado and Utah created strong independent commissions. In Thursday’s opinion, Roberts wrote approvingly, “Numerous states ... are restricting partisan considerations in districting through legislation,” and went on to cite the wave of recent voter victories.
Let’s hope he means it. In 2015, the court emphatically endorsed state ballot measures to curb gerrymandering. But four dissenters argued that voters cannot fix gerrymandering this way, and conservative advocates have even claimed Congress lacks the authority under the elections clause to create redistricting commissions. None other than the chief justice wrote the dissent. Voters could not constitutionally pass such reforms, he wrote then. His new decision points in a different and better direction.
When the framers drafted the elections clause, they did not imagine today’s supercharged, software-aided, partisan gerrymandering. But they certainly thought, as a bedrock principle, that the people, in the states and in Congress, had the power to act.
If [Since] the Supreme Court won’t follow the spirit of the framers, we the people have no choice.
Michael Waldman, president of the Brennan Center for Justice at NYU School of Law, is the author of “The Fight to Vote.” Eliza Sweren-Becker is a counsel at the Brennan Center.

This op-ed previously appeared in the 
Waynesboro Record Herald

Although the settlement was effectively uninhabited, its landowners continued to have parliamentary representation into the 19th century, making it one of the most notorious of the rotten boroughs that existed before the Reform Act of 1832. -- Wikipedia

Friday, June 28, 2019

Governors and the Progressive Movement, by David R Berman UPDATED 7-2-2019

Fighting Bob LaFollette and other reform-minded governors from 1890 - 1920 effectively countered many Gilded Age policies put into law and practice after the (not so civil) Civil War.

That Gilded Age reflected deficiencies in Public Policy and law that enabled powerful industrialists as they built opulent lifestyles along with infrastructure like cross-country railroads and telecommunications systems (initially consisting of Morse Code telegraph).

With those infrastructure upgrades, "the rabble" grew discontent and got more involved in civic life and more organized.

Arizona State University professor emeritus of Political Science and Morrison Institute for Public Policy senior research fellow David Berman has contributed an important book that those wanting to learn lessons from the Progressive Movement will want to devour.

Berman explores the balance of states' rights and the centralized federal government. With more of a focus on the chief executives of state governments, covering each state in the Union at the time.

Berman tells us what they did.
...Populists and, later, the Progressives, moved away from laissez-faire, individualism, and limited government  and generally took the position that poverty was the product of conditions over which the poor had no control or, borrowing from the Populists, that the poor were that way because the rich were stealing from them. [William Jennings] Bryan sought to bring the good life to all people, not simply the privileged. He pledged to break up the monopolies, regulate or nationalize the railroads, democratize the political system so that the common people could rule, and shift more of the costs of government to those who could afford to pay. (p 21)
Of most interest to me, George W. P. Hunt, the first state governor of Arizona oversaw the writing of the Constitution of the 48th State. Beside declaring that
All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
it enshrined the right of the People to make their own laws, and refer all of what the Arizona Legislature enacted back to the People for approval or lack thereof.

But I digress.

La Follette, a politician (having served in several offices, including governor) from Wisconsin is widely known for having defeated "political machines" that anointed candidates for office.
In the 1880s and 1890s railroad and lumber interests were the dominant political power in Wisconsin. They "dictated to the governor and both houses of the legislature. At one time, a railroad lobbyist boasted the no legislation ever had been or could be enacted without the permission of the railroads." [...]
La Follette began his political career by running for the office of Dane County district attorney in 1880. He did this despite a warning from the local Republican boss, Colonel E. W. Keyes, that his machine had already chosen a candidate for that position and that La Follette's bid was not welcomed. Keyes demanded that La Follette respect the authority of the political machine. La Follette ignored him, campaigned around the county promising to clean house and reinvigorate the county attorney's office, and was able to build up enough support to win the nomination... He had learned a valuable lesson: the bosses could be beaten. (pgs 47-48)
In Arizona today, similar might be said regarding major electric utilities, Arizona Public Service (an IOW, investor-owned utility) and the Salt River Project (a quasi-governmental corporation). Plenty has been written about APS having "purchased" its own government regulators (a majority of the five elected members of the Arizona Corporation Commission) in local news and blogs (including the Arizona Eagletarian).

Other than APS exerting direct influence on the ACC, both APS and SRP have outsized pull in the state legislature, for two main reasons. First, generous campaign contributions to candidates. Second, lavish spending on lobbyist gifts to lawmakers. Sure there are limits, but even within those limits, the influence on lawmakers is immense.

With the power of the People, Arizona voters have in the last 25 years established the Citizens Clean Elections Commission and the Arizona Independent Redistricting Commission. In the current election cycle, a completely grassroots movement is mobilized to Outlaw Dirty Money (aka the People's Right to Know) so that Big Money can't hide who is trying to buy influence over elected officials in our state.

It is no accident that these reforms have come from Arizona and that Arizona has enjoyed the academic research, teaching and writing of David Berman.

One thing I'm confident that Berman would tell you is that the struggle never ends. But...
Reform-minded governors throughout the country in the first two decades of the twentieth century also brought needed independence and prestige to the office of governor and aroused interest, confidence and a sense of excitement in state government... They helped shift into an era where more state chief executives began following Al Smith's (see also pgs 163-165) maxim: "It is the duty of the governor to let the people tell him their troubles."
Governors helped build the image of state governments as innovative, do-something governments. While leaving much to do in the area of civil rights and the rights of workers, they led efforts to bring about a more democratic political system, a more proactive government sensitive to the needs of ordinary people, and a government better prepared to take what action was needed of a regulatory nature or in the provision of public services. (pg 270) 

Governors and The Progressive Movement was published by the University Press of Colorado (2019).

UPDATE     UPDATE     UPDATE     UPDATE     UPDATE

On Thursday September 19 (the evening before the next big Climate Strike event) Professor Berman will appear at Changing Hands Bookstore in Tempe at 7pm to talk about the Governors and the Progressive Movement and sign copies of the book.

Thursday, June 27, 2019

CA Congressman argues for Independent Redistricting in Harvard Journal

California Congressman Alan Lowenthal's (D-CA 47) policy essay, published recently in the Harvard Journal of Legislation follows.

In light of today's SCOTUS ruling that refused to outlaw or in any way put legal limits on gerrymandering, this article may shed some light on political measures that can be taken to address the problem. Obviously, Independent Redistricting Commissions are a fundamental way for the People to take back the power politicians (of both Parties) has usurped.

For those interested, see the notes at this link where the essay was published.

THE ILLS OF GERRYMANDERING AND INDEPENDENT REDISTRICTING COMMISSIONS AS THE SOLUTION

THE HONORABLE ALAN S. LOWENTHAL, PH.D.
I. INTRODUCTION
There is no greater threat to a democracy than when the voters lack confidence in their political system. This is exactly what we are experiencing today. American voters have an ever-increasing feeling that political institutions do not have voters’ interests at heart. Multiple issues contribute to this, including the increasing influence of dark money in our elections and the emergence of the twenty-four-hour news cycle. However, perhaps no other factor has contributed more to negative public perception about voting and elections than gerrymandering and its side effects. In an age of voter disillusionment with their elected officials, the term “gerrymandering” has come to represent more than the malapportionment of political districts for partisan gain—it has come to represent political exceptionalism and corruption more broadly.
Gerrymandering is the practice of manipulating electoral districts to partisan advantage, securing safe seats for a party, group, or individual at the expense of others. The practice inherently disenfranchises voters. While these maps are often associated with federal congressional districts, this practice is widespread throughout all political maps: state legislatures, city councils, even school boards. While the practice has always been unpopular and widely condemned, politicians’ ability to protect their own positions of power and expand their influence is too tempting for them to give up. History has shown, as I highlight in the coming pages, that state legislatures that have this power will not give it up of their own accord. Therefore, the power to redistrict must be taken from them and given to the voters. When the decisions are made to disenfranchise voters by creating safe seats for incumbents and protecting the party in power, it tears at the fabric of our democratic institutions. Democracy works best when the voters themselves lead it. However, if voters do not believe our democracy is working fairly, they will not participate. [Arizona Eagletarian: the converse is also true, which I have often stated as empowerment is the cure for apathy (or inaction when citizens care but don't know how or what to do to make a difference).]
The practice of gerrymandering is not unique to one party. President Ronald Reagan addressed the Republican Governors Club and highlighted the successful Democratic gerrymander of California’s district maps, when he called for “an end to the antidemocratic and un-American practice of gerrymandering congressional districts.” He continued, “The fact is, gerrymandering has become a national scandal.” More than thirty years later, after the 2010 decennial census, the United States saw an unprecedented effort organized by the Republican Party, through their Redistricting Majority Project (“REDMAP”) operation, to draw maps throughout the country to favor Republicans and secure their power for the next decade. This led President Barack Obama, in his last State of the Union address, to say, “[W]e’ve got to end the practice of drawing our congressional districts so that politicians can pick their voters, and not the other way around.” He concluded, “Let a bipartisan group do it.”
Historically, partisan gerrymandering has taken two forms. The first creates districts of unequal population sizes. Since numerous Supreme Court rulings in the early 1960s establishing the one person, one vote principle, states have been required to draw congressional districts with equal population and redraw districts following the decennial census to account for any population changes. Prior to these Supreme Court rulings, gerrymanders often created districts with significant population differences. Further, parties redrew some district maps multiple times within a single ten-year period to suit their own needs. Likewise, some districts remained unchanged for decades.
The second form of partisan gerrymandering, more common today, is the manipulation of district lines to ensure electoral success and to maintain the party in power. Map drawers employ two techniques, “cracking” and “packing.” Cracking a district spreads the opposition across many districts so that the majority of districts do not have a large enough population of opposition supporters to enable the opposition to viably compete in elections.
Packing a district, alternatively, concentrates opposition supporters in a disproportionately low number of districts, creating safe seats for a single opponent while diluting opposition strength in the other districts. Because gerrymandering reduces competition by creating safe seats, politicians become more polarized, moving to their respective bases. This increased entrenchment of incumbents and parties disenfranchises voters, who as a result become disillusioned and disengaged from the political process.
Gerrymandering is not unique to the United States. Liberal democracies around the world have faced similar problems around partisan district map drawing. Further, since its inception in the United States it has been unpopular. However, what is unique today is the level of sophistication that new technology has made possible, allowing map drawers to be more accurate and successful in their self-interested pursuits. Gerrymandering, at its core, is fundamentally unfair and unconstitutional, and its evils have been espoused since its first use. It is long past time for the United States to fix this injustice and bring fairer maps and more accurate representation to the voters. The best alternative, in my opinion and experience, has proven to be independent redistricting commissions.

II. HOW I GOT HERE: MY EXPERIENCE WITH REDISTRICTING AND GERRYMANDERING
I was first elected to the California State Assembly in 1998. Accordingly, my first experience in redistricting was in 2001—after the 2000 decennial census. I found this process to be very upsetting. More reminiscent of the Tammany Hall political machine than twenty-first-century governing, incumbent elected officials held private meetings behind closed doors and literally selected their own voters. Those officials prioritized political expediency and incumbency protection over any criteria that considered natural boundaries, compactness, or cohesive communities of interests.
Shortly after, I joined the Assembly Bipartisan Caucus as one of its original members. Within this caucus, I led a task force in reviewing the redistricting process to find a better alternative. I studied redistricting, reviewed proposals, and familiarized myself with existing best practices. We met with representatives from Arizona who had established an independent redistricting commission just prior to their own 2001 redistricting process. To address the problems with California’s redistricting process, I tried to modify and improve upon the Arizona model and drafted legislation in the California Legislature to create an independent commission in California to implement a new, more equitable process. 
I was a Democrat in a state controlled by Democrats. My own party largely opposed the concept of independent redistricting because they expected that it would cost Democrats seats and were unwilling to give up their power over the process. Republicans also initially opposed independent redistricting because they felt that by losing their seat at the table, the party leadership would give up its leverage in protecting their incumbents. Due to the opposition from both sides, I was unable to move my proposal forward through the State Assembly. Only later, while serving in the California State Senate, having reintroduced the proposal in subsequent terms to bring an independent commission to California, was I able to get the proposal passed in that body. However, the Assembly simply refused to take up the legislation. Fortunately, California has a ballot initiative process, which allows voters to bring measures directly to the ballot. It was through that process that I joined with a coalition of groups including Common Cause and the League of Women Voters, both of which used my legislation as a blueprint for their proposal for an independent redistricting commission in California. Under the leadership of Governor Arnold Schwarzenegger, signatures were collected in order to bring the proposal to the ballot. In 2010, Proposition 20 passed with support from 61 percent of voters. Since enacting the Citizens Redistricting Commission in California, there have been no successful court challenges to the maps. Further, California has seen more competitive elections, compared to both previous years in the state as well as compared to the rate of competitive races throughout the country.
I was first elected to the United States House of Representatives in 2012. The first piece of legislation I introduced in Congress was the Let the People Draw the Lines Act, which would have required all states to establish their own independent redistricting commissions, in order to develop their respective congressional redistricting plans. I have also co-sponsored with my colleague Brian Fitzpatrick (R-Pa.) a House resolution expressing the sense of the House of Representatives that congressional redistricting should be reformed to remove political gerrymandering. To date, neither of these efforts have received a hearing or a vote in the House.
In 2014, states’ ability to create independent redistricting commissions was challenged when the Arizona State Legislature brought a case against the Arizona Independent Redistricting Commission, claiming the United States Constitution provided authority only for a state legislature to redistrict. This case made it to the United States Supreme Court, where I led an amicus brief filed by bipartisan Members of Congress in support of a state’s right to form an independent commission to redraw political lines. In a 5-4 decision, the Supreme Court upheld Arizona’s use of an independent commission to adopt congressional districts. This not only allowed other states to keep their independent commissions, it also set the precedent that these bodies are constitutional.
More recently, the Supreme Court had another opportunity to address the issue of partisan gerrymandering by taking up the case of Gill v. Whitford. Prior to October Term 2017, Justice Ginsburg predicted that Gill may be the most important case that the Court would decide during that term. Previous Supreme Court decisions had broached the constitutionality of gerrymandering but failed to determine a standard as to whether a district was constitutionally drawn. In the end, the Supreme Court did not rule on the standard litigated in Gill. Instead, the Court issued a narrow ruling finding that the parties challenging the maps did not have standing. Gill, and similar cases, are already making their way back through the federal courts and could be reheard in the Supreme Court as soon as the next term.
I also led the bipartisan amicus brief of current and former Members of Congress in Gill. Justice Kagan cited that brief in her concurring opinion, joined by Justices Ginsburg, Breyer, and Sotomayor, stating, “the evils of gerrymandering seep into the legislative process itself. Among the amicus briefs in this case are two from bipartisan groups of congressional members and state legislators. They know that both parties gerrymander. And they know the consequences.” She continued: "Partisan gerrymandering has been consistently denounced as undemocratic and unconstitutional. The vision of the Framers was for the House of Representatives to stand as the legislative body closest to the pulse of the people. To ensure this, they constructed Congress in such a way as to make the House more directly accountable to the voters through regularly-held competitive elections."
III. How We Got Here: A Brief History of Gerrymandering
Partisan gerrymandering acts as a direct threat to this foundational principle, putting a partisan barrier between elected officials and the voters. The Framers were aware of the conflict that could arise if federal elected officials were to draw their own district boundaries. For this reason, they gave the responsibility to the state legislatures. As the American colonies began to fight for their independence and debate the initial ideas surrounding self-governance, the role and scope of a government took shape.
In Common Sense, Thomas Paine wrote: "[A]s the colony increases, the public concerns will increase likewise, and the distance at which the members may be separated, will render it too inconvenient for all of them to meet.... This will point out the convenience of their consenting to leave the legislative part to be managed by a select number chosen from the whole body, who are supposed to have the same concerns at stake which those have who appointed them, and who will act in the same manner as the whole body would act were they present."
John Adams, that same year, echoed Paine’s comments: "In a large society, inhabiting an extensive country, it is impossible that the whole should assemble to make laws: The first necessary step, then, is to depute power from the many to a few.... [Such a representative body] should be in miniature an exact portrait of the people at large. It should think, feel, reason and act like them.... Great care should be taken to... prevent unfair, partial, and corrupt elections." It is clear that the desire was for a representative body close to the pulse of their voters and constituents.
A decade later, after the need for a more robust federal government became clear due to the Continental Congress’s lack of power and authority conferred by the Articles of Confederation, the role of the legislature and its relationship to the people once again figured prominently in the discussion. Fears of congressional district manipulation and malapportionment arose as the role of the proposed House of Representatives was debated at the Constitutional Convention and sent to the states for ratification. In Massachusetts, Anti-Federalists objected to ratification because of the possibility of “making an unequal and partial division of the states into districts for the election of representatives.” During the same debate, Anti-Federalists also raised concerns that without federal oversight and protection, representatives “will not be chosen by the people, but will be the representatives of a faction of that [s]tate.” In Federalist No. 52, James Madison stated, “As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people.” In Federalist No. 57 Madison wrote, “The electors are to be the great body of the people of the United States.” Further, he frequently repeated the point that the primary check on members of the House of Representatives was their “dependence on the people.” Even noted Anti-Federalist George Mason agreed. Arguing during the debates over the drafting of a new Constitution, Mason said, “The requisites in actual representation are, that the [representatives] should sympathize with their constituents; [should] think as they think, [and] feel as they feel.
It was the bipartisan concern for manipulation of elections that led the founders to grant Congress the authority, under Article I of the Constitution, to regulate the times, places, and manner of congressional elections. The House of Representatives was to be the most democratic federal body, closest to the people. Two-year terms ensured that voters would regularly hold their representatives accountable. With the election of the president by the Electoral College and election of senators by state legislatures until the Seventeenth Amendment was ratified in 1913, the House was the only federal body directly elected by the people. The Framers, by constructing the House to be first and foremost accountable to its constituents, also saw it as a bulwark against the harmful effects of factional partisan control. So, when politicians and political parties draw their own districts, manipulating them to select those who will vote for them, it goes counter to the intent of the Framers to have voters select their representatives in the most direct method possible.
Immediately after the idea of our democratic institution went from theory and into practice, the United States saw its first gerrymander. Historians generally identify the first gerrymander in the United States to be in 1788, during the nation’s first congressional election. Patrick Henry and the Anti-Federalists controlling the Virginia House of Delegates deliberately included James Madison’s home county in a congressional district that also included nearby Anti-Federalist leaning counties. It was an attempt by Henry and his faction to cut Madison out of the newly formed House of Representatives. 
The most iconic gerrymander, however, and the one that lends its name to the practice itself, took place in 1812, when Elbridge Gerry was serving as the Democratic-Republican Governor of Massachusetts. He signed the state legislature’s redistricting proposal that included a state senate district which, to many Federalists—as well as the Boston Gazette newspaper and its cartoonist—resembled a salamander-like monster. The Gazette dubbed it the “Gerrymander.” The Federalists took control of the state legislature a decade later and, with the now notorious “Gerrymander” map still fresh in the minds, passed new political districts manipulated to strongly favor the Federalists.
Regardless of the state, or which political factions were in charge, gerrymandering continued unabated throughout the eighteenth, nineteenth, and twentieth centuries. This occurred despite steps calling for equality among voters, such as the passage of the Fourteenth Amendment and its Equal Protection Clause. Formal calls continued to be made to address the issue. Future president James Garfield won his 1870 congressional race with help from a beneficial gerrymander, though he would decry the practice and call for its elimination. In a speech on the House floor he said, “It is the weak point in the theory of representative government, as now organized and administered, that a large portion of the voting people are permanently disenfranchised.” In his annual address to Congress, President Benjamin Harrison called gerrymandering “political robbery” and called on Congress to take action, stating, “The power of Congress is ample to deal with this threatening and intolerable abuse.”
Lengthy delays in redistricting led to stark disparities in population between districts. For seventy years between 1841 and 1912, congressional district boundaries in Connecticut stayed the same.  Conversely, the Ohio legislature redistricted congressional districts seven times between 1878 and 1892, and after six consecutive elections at one point during this period. “[A]t least one state redrew its congressional districts each year” from 1872 to 1896. By 1960, Georgia’s Fifth Congressional District had 823,489 people, while the state’s Ninth District had 272,154 people, a difference of more than 550,000 people. It was not until the early 1960s and a series of Supreme Court cases that voters saw their first respite from the practice of gerrymandering. In 1962, the Supreme Court heard Baker v. Carr, challenging Tennessee’s failure to redistrict since 1901. Through challenges based on the Equal Protection Clause, one person, one vote was set as precedent and the justiciability of such gerrymanders was established. Though the differences in population and redistricting were inconsistent and undemocratic, it was not until the Supreme Court ruled the practices unconstitutional that the practices stopped. Politicians saw population disparity between districts as a tool to maintain factional control and hurt their opponents. That practice seems archaic and inequitable—like gerrymandering today. But there is no reason to believe that politicians would have proportionately apportioned districts without judicial intervention.
Seeking to eliminate discriminatory election rules, Congress passed the Voting Rights Act in 1965. The Act ensured that states with a statistically significant number of minority voters drew districts with enough minority populations within them to allow for a minority candidate to be elected, allowing racial and ethnic minority groups to select representatives from their own communities.
Fractured opinions in recent Supreme Court cases such as Davis v. Bandemer and Vieth v. Jubelirer have generated confusion about whether partisan gerrymandering cases are justiciable and whether courts can devise manageable standards to review such claims. The lack of any meaningful resolution from Congress or the Supreme Court has resulted in continued control of the process by state political parties. This has led to attempts by voters to remove politicians from the redistricting process. Arizona voters approved the Arizona Independent Redistricting Commission in 2000 and California voters approved the California Citizens Redistricting Commission later that decade. The year 2010 also saw the unprecedented coordination nationally by Republicans through REDMAP. Organized through the Republican State Leadership Committee, REDMAP sought to elect Republican governors and control state legislatures with the distinct goal of controlling the relevant offices in time for the next redistricting process. Moreover, while Democrats did not have a national coordinated campaign, they engaged in their share of gerrymandering in states where they controlled the government.
While partisan gerrymandering has occurred throughout our history, it runs counter to the intentions of the Framers and has always been regarded by the public at large as disenfranchising, unconstitutional, and undemocratic. Gerrymandering acts as a barrier between the people and their representatives, making politicians answerable first and foremost to their party, not their voters.
IV. HOW WE ARE IMPACTED: THE ISSUES WITH GERRYMANDERING
Designing political districts that are in keeping with traditional redistricting principles would create districts with shared concerns and interests. Having a coherent district built on the principle that the representative is elected to serve the constituency emboldens and empowers the community to participate in the electoral process. Protecting political parties and incumbents motivates district mapmakers in many states. There is a positive correlation between the statewide partisan advantage, as measured by the efficiency gap, and a single party’s control of a state government.
Gerrymandered districts lead to a lack of competitive elections, more polarized elected officials, and a disengaged constituency. By putting a barrier between representatives and their constituents, gerrymandering makes representatives more responsive to political factions and special interests than to their constituents and voters. As shown in the previous Section, such results run counter to the system of government designed and envisioned by the founders, in which the power rested in the people. Gerrymandering has flipped this system around, allowing politicians and political parties to select the voters who will vote in their elections. 
By drawing districts to remove the likelihood of a competitive election, gerrymandering creates safe seats. Done across a state through “cracking” and “packing,” the party drawing the maps tries to secure their majority, ensuring party leadership in a statehouse and congressional delegation. Maps carved out to maximize the number of registered and likely voters for a specific party minimize the chances for turnover and secure the dominance of a single party or candidate. As a result, over the last thirty years the United States has seen the number of competitive congressional elections decrease as the number of safe seats has increased.
A party that has manipulated political districts to create enough safe seats to protect its majority removes its accountability to the people. Making politicians more accountable to their party than the voters shifts representatives to the ideological poles—diminishing any chance for bipartisan cooperation and compromise and making the party whip more important than the community advocate
Politicians who do not have to face a competitive general election see only two challenges to keeping their positions: alienating party leadership or a primary challenger from within the party. Either of these can pull a representative toward his or her party’s base. State partisan gerrymanders have been shown to "dramatically influence the representational distortion of House delegations.” Further, individual politicians in gerrymandered seats “tend to fall further from the ideological center than do politicians who have to reach out to voters from both parties to get elected.” While redistricting is up to state legislatures, the process is directly influenced by the national political parties and their leadership.
There are also examples of political parties using redistricting as a way to keep members in step with party leadership. Recent examples include Republicans threatening to draw members such as Representatives Jim Jordan (R-Ohio) and Justin Amash (R-Mich.) out of their seats. Both representatives are members of the Freedom Caucus [Amash withdrew from that caucus after declaring that Trump has committed impeachable offenses], who have been known to counter Republican party leadership. As another example, in 2000 current Rep. Hakeem Jeffries (D-N.Y.) challenged, and was narrowly defeated by, an incumbent Democratic state assemblyman. In response, the New York State Democratic Party redrew the assembly district where Jeffries lived to carve out the block containing his home, thus preventing Jeffries from challenging the incumbent again. 
The reduction of competition that results from gerrymandering is severe and results in fewer opportunities for voters to exercise their right to act as a check on their representatives. Safe seats draw fewer qualified opposition candidates, if they attract any challenger at all. The nonpartisan voting-rights organization FairVote reports that the 2016 House of Representatives elections saw landslide victories in roughly 74 percent of races nationwide, with approximately 15 percent of races being uncontested altogether. Further, only eight incumbents lost in the 2016 general election, out of 387 incumbents challenged, despite Congress as a whole having an approval rating of 19 percent at the time. 
Without a meaningful choice in electoral competition, the voters’ voices are diminished. Between 2009 and 2016 Gallup found a steep decline in the percentage of Americans who have confidence in the honesty of our nation’s elections. In just these seven years, voter trust fell from 59% to 30%. Further, Gallup found that those lacking faith in our electoral system rose from 40% to 69%. When constituents are gerrymandered into a district where their voices are not heard by their representatives and their votes do not count at the ballot box, they will stop participating in the process. And democracy fails when citizens fail to turn out. 
All of the negative ramifications attributed to partisan gerrymandering previously discussed are exacerbated by the increasingly sophisticated tools at the political mapmakers’ disposal today. Advances in technology and the emergence of Big Data have allowed gerrymanders to be more accurate and aggressive. The process of gerrymandering has evolved from an art to a science, allowing for a smaller margin of error. Politicians have ceased enlisting the help of cartographers when redistricting and now employ analytic consultants. While state parties historically had to balance incumbent protection with seat maximization, technological advances have allowed mapmakers to “engineer so much advantage that it is possible to satisfy both of these goals.” Computer technology “has enabled the practice of this dark art with increasing precision and success.” A study by the Brennan Center for Justice showed that historically the effectiveness of a gerrymander would diminish over time, due to population shifts and incumbents retiring. However, today, “mapmakers now know a lot more about voters.” Gerrymanders are “becoming much more effective and pernicious” as technology has allowed more sophisticated and durable maps. If a party can draw lines with such accuracy that it can confidently control a majority of districts for the next decade, the party can ensure it is in power the next time that lines are drawn. That extended control secures its power not only for this decade but also the next.
V. HOW WE FIX IT: THE SOLUTION TO GERRYMANDERING
As I stated in the Introduction, when serving in the California State Legislature, I closely reviewed the best possible solutions to gerrymandering and my thinking quickly coalesced behind the idea of independent commissions. Arizona had paved the way in the United States and had offered tangible success. Today, most liberal democracies in the world have moved past political redistricting to some form of commission. Unconstrained political redistricting regularly benefits a single political party at the expense of fair or accurate representation and to the detriment of our democratic institutions. Independent redistricting commissions are currently the best tool that voters have to mitigate political influence and the negative effects of gerrymandering. States that allow their legislatures to control the redistricting process are more likely to have “higher partisan bias, lower electoral responsiveness, and reduced public confidence in the electoral system,” compared to other countries or states with independent commissions. 
The people also recognize these facts. A 2013 Harris Poll found that 64 percent of total respondents believe that redrawing districts is often used to take power away from voters. Further, the same poll found that 71 percent thought that those who benefit from redrawing districts should not have a say in the process. The preferred alternative, by an overwhelming margin, was an independent commission. A 2017 bipartisan poll conducted on behalf of the Campaign Legal Center showed similar overwhelming support nationally for removing partisan bias from redistricting, with 73 percent of respondents saying they would support limitations, even if it meant their preferred political party would win fewer seats. 
This issue is not unique to the United States system. Most liberal democracies have faced similar issues in the past, with gerrymandering existing in one form or another for many centuries. While some individual states in the United States have adopted independent commissions, the U.S. system as a whole remains an outlier among liberal democracies by allowing its political actors to control their own redistricting, which most states in the Union still do. Most other countries leave redistricting to commissions.
Redistricting commissions in Canada, Japan, and the United Kingdom are composed of members appointed by politicians and the commissions’ final plans require legislative approval. In contrast, redistricting commissions in Australia and New Zealand are entirely autonomous, with nonpartisan commissioners. They do not require approval from a court or legislative body. France has the most similar system to the United States: their parliamentary government is also comprised of single-member districts, although their districts are drawn at the federal level by the executive branch and reviewed by a constitutional council. Further, research into the French parliamentary redistricting process has concluded the level of partisan bias there to be “minuscule.” 
Overwhelming trends show voter dissatisfaction with Congress and its increasing polarization and an ever-increasing desire to see independent commissions replace self-benefiting politicians in the redistricting process. So why have we not seen more states adopt commissions? As I mentioned earlier, politicians and political parties are self-serving and will not give up power or influence easily. Congress—through the power vested in it by the Elections Clause in Article I of the Constitution—may regulate the times, places, and manner of congressional elections, and could compel states to draw congressional districts using independent commissions. Such legislation requires support from many of the same politicians who directly benefit from gerrymandering themselves or fear what may happen if they no longer had a seat at the table. As stated in the Introduction, when I was in the California State Legislature, initially I could not get a vote in the assembly to create a redistricting commission. The first piece of legislation I introduced when I arrived in Congress, the Let the People Draw the Lines Act, never received a vote in the House of Representatives. Neither has my bipartisan resolution expressing the sense of the House that congressional redistricting should be reformed to prevent political gerrymandering. 
Likewise, I previously highlighted that partisan gerrymandering is counter to the Framers’ intent and is unconstitutional. Because politicians abused the process to benefit one faction over another, it was the Supreme Court that had to put limits on malapportioned districts by establishing that new lines must be drawn every decade. The Court has also ruled racial gerrymandering unconstitutional unless narrowly tailored to meet a compelling governmental interest. They have yet to rule partisan gerrymandering unconstitutional or even put barriers to limit extreme partisan gerrymandering. Justice Kennedy’s retirement after the last term jeopardizes the potential for judicial intervention in the short-term.
This leaves state-level change as the best hope for movement on this issue. As in Arizona and California, the change must come from the people. Twenty-four states have some form of voter initiative or ballot referendum process, with fourteen states having a direct  initiative process. Currently, there are grassroots efforts in Arkansas, Michigan [Michigan's Proposal 2 passed in November 2018], Missouri, Oklahoma, Utah, and other states to bring some form of redistricting change to their states through their respective initiative processes. Further, there have been recent successful grassroots efforts by coalitions of local advocates to bring change to the ballot through their local state legislatures.
In the United States, Arizona and California have been national leaders in successfully removing gerrymandering from their redistricting processes and serve as models for others. Provisions governing both the Arizona Independent Redistricting Commission and the California Citizens Redistricting Commission are similar: both seek to build representative constituencies that incorporate traditional redistricting principles while minimizing partisan drivers and political influence over the process. I believe that they serve as the current best practice and a model from which other states can build.
Arizona’s commission is made up of five members, with no more than two members of any one political party. No member may have recently held or been involved in political office. Building on this, California, to ensure that there was no partisan influence, increased its number of commissioners to fourteen. Five commissioners come from the largest political party, five from the second largest, and four from neither of those two parties. The chair must be appointed from the last group. In addition, California commissioners are prohibited from participating in overt political activity. Both states’ commissions require that all of their meetings be transparent and open to the public, with ample opportunities for public input. The proposed maps for each must be publicly displayed and available for public comment before final adoption. Final adoption of the maps must include a majority from each group of commissioners. 
Both commissions must comply with federal requirements, such as equally apportioned districts and the Voting Rights Act; additionally, both must consider specified criteria in their map drawing including communities of interest, geographic contiguity, existing local government boundaries, and compactness. District lines that are drawn to incorporate communities of interest, follow natural geographic features, and consider existing county lines “are linked to higher voter participation, more effective representation, and... lower legislative polarization” compared to those that are drawn to pursue a partisan advantage. Redistricting criteria serve not only to deter gerrymandering, but also to build a coherent political and geographic community that can be represented effectively. University of Chicago Law School professor, gerrymandering scholar, and co-creator of the efficiency gap theory Nicholas O. Stephanopoulos stated, “The rules for how districts are drawn shape constituencies’ internal complexions, which in turn shape the makeup of the legislature as a whole—and thus the very character of representative democracy.”
Lastly, both California and Arizona explicitly remove any consideration of an incumbent’s residence, requiring that the place of residence of any incumbent or political candidate not be considered when drawing the maps. Further, resident party registration and voting history data are also excluded from consideration in drawing maps in California. In Arizona, the commission must consider district competitiveness. Accordingly, party registration information is initially withheld from the commission and then incorporated before final approval. In a partisan redistricting process controlled by the state legislature, securing party power and incumbent protection are the two primary goals. In California, however, they are not to be considered at all. In Arizona, incumbent residence information is not to be considered, while voter registration information is only to be considered when seeking greater competition. Additionally, Idaho, Iowa, and Montana also ban consideration of an incumbent’s home and limit the use of political data.
VI. CONCLUSION
If the practice of gerrymandering is allowed to continue unfettered in many states, as we see today, the next round of redistricting after the 2020 decennial census will likely be the worst ever experienced. Both political parties—Democrats and Republicans—will be emboldened by the indecisiveness and inaction of the Supreme Court and Congress. Looking ahead to 2020 and beyond, Republicans have re-launched their REDMAP operation. They continue to seek victories for Republicans in governorships and in state legislatures, in part in order to maximize their ability to control redistricting efforts in 2020. Likewise, in response to the Republicans’ previous success with REDMAP, Democrats—not to be caught off guard again—have put forward their own effort with the National Democratic Redistricting Committee (“NDRC”), led by former Obama administration Attorney General Eric Holder. While built to help Democratic statewide and state legislative efforts, particularly in the lead up to 2020, the NDRC states that their mission is to “ensure the next round of redistricting is fair and that maps reflect the will of the voters.” Concerns have been raised that this is simply a Democratic BLUEMAP operation. 
Further, there are concerns with ongoing efforts by the Trump administration to undermine the upcoming decennial census. Earlier this year the administration announced its decision to include a citizenship-status question in the 2020 census questionnaire. While many states have sued the administration for this policy shift, challenging it as unconstitutional, there is a chance that the next census will see lower participation as a result of the administration’s efforts. The census governs the allocation of representatives, electoral votes, and government funding. Lower participation and a resulting undercount in the census will result in malapportionment in congressional seats for states, as well as risking federal funding in communities. Under the Constitution, congressional districts are based on total population and not voters or voting-eligible persons. Undercounting immigrants or minority communities could have disastrous consequences on state congressional allocation figures. 
Partisan gerrymandering historically has been unpopular and criticized as an undemocratic, unconstitutional practice. It is long past time for the practice to end. As shown above, there are multiple ways to put checks and limits on political map drawers or simply remove politicians from the process altogether and implement independent commissions. Voters and grassroots advocates working at the state level have had the most recent success in response to inaction from Congress and the Supreme Court. By working together, collecting signatures, and getting measures on local and state ballots, advocates and everyday voters have successfully brought independent redistricting commissions to states like Arizona and California, where politicians no longer draw their own districts to prioritize incumbent protection and party power at the expense of communities of interest and disenfranchising voters. We must make our democracy work again. We need fair maps.
We need independent commissions.
In his opinion (abdication of responsiblity) in today's Rucho v Common Cause and Lamone v Benisek, Chief Justice John Roberts cited Independent Redistricting Commissions,
And just because courts can’t review partisan-gerrymandering claims, he continued, does not mean that there are no other checks on the problem: The states and Congress can take action – for example, with state laws or constitutional amendments on partisan gerrymandering, or by establishing independent redistricting commissions to draw maps.

Tragic SCOTUS opinion on Gerrymandering

John Nichols, for The Nation, wrote,
Extreme gerrymandering, the process by which politicians draw congressional and legislative district lines to thwart the will of the people, has “debased and dishonored our democracy.”
So writes Supreme Court Justice Elena Kagan in what history will record as one of the finest statements from the Court in the modern era. Responding to cases that focused the Court’s attention on startling examples of how the map-drawing process is abused to tip the partisan balance, Kagan recognizes a clear “constitutional violation,” and writes:
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 doing so, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.
There was only one problem with Kagan’s stirring defense of democracy. It came in the form of a dissent from a decision issued Thursday by the Court majority, which abandoned democracy to the wolves of electoral privilege, legislative chicanery, and political high finance. Chief Justice John Roberts, writing for himself and four conservative colleagues, acknowledged that “Excessive partisanship in districting 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 with the federal judiciary.”
In a 5-4 ruling, the Supreme Court of the United States held today that partisan gerrymandering won't (yet) be dealt with as a matter of law. From SCOTUSblog,
By a vote of 5-4, the justices ruled that courts should stay out of disputes over partisan gerrymandering – that is, allegations that redistricting maps were drawn to favor one political party at another’s expense. The practice of partisan gerrymandering may be distasteful, the court concluded, but it is a problem that politicians and the political process, rather than courts, should solve. [...]
In October 2018, a federal district court in Maryland held a trial to review the partisan-gerrymandering claims by the plaintiffs in that case, who are Republican voters challenging Maryland’s Sixth Congressional District, which begins in the outer suburbs of Washington, D.C., and stretches north and west to the state’s borders with Pennsylvania and West Virginia. The voters contend that, after the 2010 census, Democratic election officials only needed to make relatively minimal changes to the district. Instead, they emphasize, state officials moved out nearly 70,000 Republicans and moved in 24,000 Democratic voters, transforming the district from one where the Republican incumbent had won by a margin of 28 percent in 2010 to one in which he lost to a Democrat (and current presidential candidate), John Delaney, by a margin of 21 percent. The officials made this change, the voters argue, to retaliate against them for their support of Republicans, which violated the First Amendment. [...]
Republican legislators in North Carolina had asked the justices to review a ruling by a federal district court there invalidating the state’s 2016 congressional map, which was drawn by the Republican-controlled legislature. The district court ruled that the map was an unconstitutional partisan gerrymander and blocked the state from using the map after the 2018 election.
In January, the Supreme Court announced that it would take up both the North Carolina and the Maryland appeals, and it heard oral arguments in March. Today a divided court sent both cases back to the lower courts, with instructions to dismiss them because the courts lack the power to consider the challengers’ claims.
In his opinion for the court, Chief Justice John Roberts explained that partisan-gerrymandering claims pose particularly difficult problems for courts because it is well settled that legislatures can consider politics when drawing district maps. The question that courts would have to decide is when the consideration of politics has gone too far and violates the Constitution. But there’s no requirement, Roberts wrote, that a party’s representation in a congressional delegation or state legislature reflect its share of the statewide vote – a concept known as proportional representation.
Instead, Roberts emphasized, what plaintiffs in partisan-gerrymandering cases are asking courts to decide is what level of representation would be fair, and how to draw maps to achieve that level of fairness. There are many different ways to measure fairness, Roberts suggested, and choosing among them “poses basic questions that are political, not legal.” Nothing in the Constitution provides standards to decide what is fair, much less the kind of “limited and precise standards that are clear, manageable, and politically neutral” that courts would need. In the absence of such standards, Roberts concluded, courts should refrain from deciding partisan-gerrymandering cases.
Roberts acknowledged that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust.” But just because courts can’t review partisan-gerrymandering claims, he continued, does not mean that there are no other checks on the problem: Both the states and Congress can take action – for example, by establishing independent redistricting commissions to draw maps.
Justice Elena Kagan dissented, in an opinion that was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Reading her dissent from the bench, Kagan emphasized that the Supreme Court had refused for “the first time ever” to “remedy a constitutional violation because it thinks the task beyond judicial capabilities.” Kagan lamented that the “partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights.” The gerrymanders “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.” “In giving such gerrymanders a pass from judicial review,” she concluded, “the majority goes tragically wrong.”