(PhatzNewsRoom / NYT) —- In the next few months, the Supreme Court is expected to rule, at last, on one of the most corrosive practices in modern American democracy — the drawing of legislative district maps to entrench the party in power, no matter how many voters might want a different result. Even as this behavior, known as partisan gerrymandering, has gotten out of control in recent decades, the court has refused to rein it in because, the claim goes, any possible fix lies with the political branches and not the courts.
That’s bunk. The justices will see why if they look at what’s happening in several states where lawmakers have been holding clinics in self-interested mapmaking.
Both Democrats and Republicans draw biased maps, of course — the two cases before the Supreme Court this term make that clear — but modern partisan gerrymandering is mostly the work of Republicans, who control a majority of governorships, as well as the legislative chambers in 32 states. Their efforts to lock in this advantage by any means necessary — including by kneecapping any institutions, including the courts, that try to stop them — are the work of a party that has become, as the political scientists Norm Ornstein and Thomas Mann put it in 2012, “dismissive of the legitimacy of its political opposition.” At stake are not just hundreds of state legislative seats, but also control of the House of Representatives, which Republicans currently hold by a 45-seat margin.
The most shocking case is playing out right now in Pennsylvania, where Republican lawmakers in 2011 created maps so skewed that when Democrats won a majority of the popular vote the following year, it translated into only five of the state’s 18 congressional seats.
Indefensible, right? That’s how the Pennsylvania Supreme Court saw it last month, striking down the maps for “clearly, plainly and palpably” violating the state’s Constitution, and ordering lawmakers to submit new, fairer maps to the governor by Friday. If they don’t, the court will substitute its own nonpartisan maps by Feb. 19, in time for the state’s primary elections in May.
Pennsylvania Republicans are furious. The president pro tempore of the State Senate, Joe Scarnati, refused to comply with the court’s order to turn over data concerning the state’s current district lines, arguing that the justices overstepped their authority. G.O.P. leaders appealed to the United States Supreme Court to block the order, but their request was denied on Monday by Justice Samuel Alito Jr.
When the Supreme Court speaks, that’s usually the end of the matter. Not this time. A Republican legislator this week moved to impeach the five Pennsylvania justices who voted to strike down the maps, on the grounds that they “engaged in misbehavior in office.” Pennsylvania’s judges are elected in partisan campaigns, and all five in the majority are Democrats. The two dissenters are Republicans.
Electing judges, as a practice, is a bad idea that should be done away with nationwide. Still, forcibly removing a judge for making decisions that offend the governing party is, to put it gently, not tolerable in a democracy. It’s a profound threat to the independence of the judiciary and the separation of powers. And yet, thanks to the turbocharged gerrymandering the state’s Republicans managed to pull off seven years ago, they have a large enough majority to do it.
Worse, they are far from alone in their efforts to rig the electoral process. In North Carolina, G.O.P. legislators in 2011 drew such biased districts — one election-law scholar called them the “most brazen and egregious” maps in the country — that they managed to win nine of 13 House seats, despite getting just 49 percent of the statewide popular vote.
Republicans now hold 10 of those 13 seats, but even that wasn’t enough for them, especially after 2016, when voters elected a Democrat, Roy Cooper, as governor and gave liberals a 4-to-3 edge on the State Supreme Court.
Almost immediately, Republicans struck back, stripping the new governor of many powers, attempting to redraw judicial districts, requiring judges to identify their party affiliation on ballots and reducing the size of the state’s Court of Appeals, in order to keep Mr. Cooper from replacing retiring Republicans.
In other words, if you can’t win the game under the existing rules, change the rules.
State and federal courts have ruled against many of these moves, and have invalidated Republican-created district maps and voting laws that were created to thwart black political power in the state. Most significantly, in January a three-judge panel of a federal court struck down North Carolina’s district maps for being “motivated by invidious partisan intent,” and violating the 14th Amendment’s guarantee of equal protection. But the Supreme Court put that ruling on hold, which means the current Republican-friendly maps will almost certainly be in use for the 2018 midterms.
So this is where we are: Increasingly partisan actors, mainly on the right, are wielding high-end mapmaking tools to lock in their party’s majority for years or longer, then hobbling another branch of government that is trying to rein them in. And the Supreme Court still thinks gerrymandering can be fixed through the political process?