Partisan Gerrymandering and the Constitution II

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Today, October 3, the Supreme Court heard arguments in the case of Gill v. Whitford, in which the Wisconsin legislature was caught red-handed manipulating the state’s voting districts to ensure that Republicans retain control for a decade, even if they lose the state-wide popular vote. The process by which the legislature did this was secret – the redistricting plan was drafted in a conference room of a private law firm with the aid of sophisticated software. Democrats were totally excluded from the process. Much of the damning evidence came to light when recall elections involving several state senators briefly put the Democrats back in control. Since the law firm represented the legislature itself, not the former Republican majority, the new Democratic majority instructed the lawyers to release the records of how the gerrymandering was done. What spilled forth should make the hair stand on the back of your neck.

Lest we Democrats feel righteously indignant about this conduct by Republicans, keep in mind that there is pending litigation in Maryland alleging that the Democrat majority engaged in similar partisan gerrymandering. Concern about the ill effects of partisan gerrymandering is shared by both sides of the political spectrum. The “friend of court” briefs filed in Gill v. Whitford demonstrate a range of opinions even among Republicans. One such brief filed by the National Republican Congressional Committee urged the Supreme Court to reverse the lower court, which had found the gerrymandering unconstitutional. Another filed by Republican Statewide Officials, including luminaries such as Bill Brock, Bob Dole and Richard Lugar, urged the Supreme Court to reject blatant partisan gerrymandering by affirming the lower court.

The Supreme Court never makes wild leaps into unknown territory. We have a common law system in which the law builds incrementally upon past decisions. The litigants attempt to show that their side is most consistent with prior precedent. The Court carefully attempts to justify each new decision by some earlier decisions or application of law. Rarely are prior decisions directly overturned. Accordingly, the Supreme Court’s previous decisions on partisan gerrymandering are the starting point for understanding what will happen when the Court decides Gill v. Whitford.

There are two prior decisions of importance. The first is Davis v. Bandemer (1986), in which a redistricting plan in Indiana was challenged by Democrats who claimed that their voting power as a group had been subverted in violation of the Equal Protection Clause. The big question in the case was whether this claim was “justiciable,” meaning whether a test could be found enabling courts to distinguish unconstitutional vote dilution from the acceptable exercise of political power by the majority party.

Although the principle of “one person, one vote” was well-established by 1986 and racially motivated gerrymandering was clearly illegal, four Justices in Davis said that the claim by a state-wide voter group was not justiciable. “A group’s electoral power is not unconstitutionally diminished by the fact that an apportionment scheme makes winning elections more difficult, and a failure of proportional representation will not be sufficient” to violate equal protection.

A fifth Justice argued that the claim in Davis could be decided because there was no significant difference between vote dilution affecting individuals and voter groups. But he agreed that the claim should be rejected on the narrower ground that there was insufficient proof of a violation under a test that he proposed as the correct one. His test required a showing (1) of legislative intent to deprive a voter group of equal power to elect representatives, and (2) an enduring effect on that voter group extending over more than one election cycle. But, according to him, that enduring effect cannot be proved by mere disproportionality between the size of the victimized group and the number of representatives they elect.

Confused? So was every court that tried to apply this test for the next eighteen years. In fact, every lower federal court that attempted to do so threw up its hands and concluded that partisan gerrymandering claims were impossible to judge. In the second case of importance, Vieth v. Jubelirer (2004), four Justices of the Supreme Court ruled that equal protection claims on behalf of state-wide voter groups were never justiciable because no workable standard for judging them had emerged. They declined to adopt the standard in Davis, saying it “was misguided when proposed, has not been improved in subsequent application, and is not even defended before us today by [the challengers].”

But four Justices do not make up a majority of the Supreme Court, and the fifth Justice who concurred with the four nay-sayers in Veith – Justice Kennedy – is still on the Court and will be critical to the decision in the present case from Wisconsin. Kennedy left a crack in the door for finding a test by which to judge equal protection vote dilution claims on behalf of state-wide voter groups:

I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.

For Kennedy, employing political classifications in redistricting is not itself unconstitutional, but doing so in an invidious manner or in a way unrelated to any legitimate legislative objective might be. He warned that if courts refuse to entertain any claims of partisan gerrymandering, the temptation for legislators to use partisan favoritism will grow.

This was prophetic. After the 2010 census, state legislatures went on a binge of partisan gerrymandering in the drawing of state and Congressional district lines unseen in the decades before. In Gerrymandering in America (2016), Anthony McGann and his co-authors say:

partisan bias increased sharply in the 2010 [Congressional] districting round. We find the bias of the House of Representatives in 2012 was around 9%. Roughly speaking, this means that if there were a 50/50 vote split, one party would win 55% of the seats, while the other would get 45%. This compares to a 3% bias in the 2002 redistricting round. In many individual states the bias is far, far greater . . . . There are numerous states where . . . one party can win between two-thirds to three-quarters of the seats with only half the votes.

The pressure on the Supreme Court to come to grips with this profoundly undemocratic situation will be substantial. And, as I hope to explain in the next post on this topic, the challengers to the Wisconsin redistricting may very well have the evidentiary approach that can attract a solid majority of the Court.

One more thing. It may surprise West Virginia readers of this post that our state has filed a friend of the court brief in Gill v. Whitford. Decisions to file briefs are made by the Attorney General, in this case by the arch-conservative Partick Morrisey, who has announced his candidacy for the Republican nomination for Governor. In the brief, West Virginia takes the position that “there is nothing inherently suspect, invidious, or irrational about a legislature using partisan purpose when redistricting.” This presumably reflects the confidence of the West Virginia Republican Party that it is safely in the majority. But what seems appropriate in redistricting is in the eye of the beholder. And, of course, the worm can turn.

Partisan Gerrymandering and the Constitution

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On October 3, 2017, the United States Supreme Court will hear arguments in the case of Gill v. Whitford. This case raises the question of whether gross partisan gerrymandering by the Wisconsin state legislature in creating state voting districts violates any provision of the U.S. Constitution. Partisan gerrymandering – intentionally drawing voting district lines to favor one party or the other – has seen a sharp increase since the redistricting that followed the 2010 census. Many observers believe that partisan gerrymandering is to blame for much of the gridlock in Congress and the state legislatures because highly partisan districts elect highly partisan representatives who have no political room to compromise. The old legal wisdom is that for every wrong there is a remedy, so you would expect that this case would be a slam-dunk for those challenging the Wisconsin redistricting in the Supreme Court. But you would be wrong.

Appendix AFirst, some basics. The constitutions of each state determine the number of state Senators and Delegates assigned to voting districts and the apportionment of the state’s population into those districts. In West Virginia the House of Delegates is composed of a fixed 100 members, each theoretically representing 1/100 of the state’s population. But instead of there being 100 districts, our legislature has created 67 districts some of which elect multiple Delegates. (Appendix A). All Delegates face re-election every two years.

There are two Senators from each of seventeen senatorial districts for a total of thirty four. According to the West Virginia Constitution, senatorial districts “shall be compact, formed of contiguous territory, bounded by county lines, and, as nearly as possible, equal in population, to be ascertained by the census of the United States.” (Appendix B). There is no such language relating to House districts. Senate terms are four years and elections are staggered so that a portion of senators faces re-election every two years.

Appendix BState legislatures also draw each state’s Congressional district boundaries, which must be revisited every ten years immediately after the census. West Virginia has had three Congressional districts for several decades, but their boundaries have changed slightly over time to reflect the shift in population to the Eastern Panhandle and Monongalia County. The U.S. Constitution and its Amendments determine who can vote in federal elections. But as for how districts are constituted, it merely says that “Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective numbers” and that “the number of Representatives shall not exceed one for every thirty Thousand.”

The basic requirement of Congressional apportionment that each district have an approximately equal population is consistent with the 5th Amendment’s promise of equal protection of the law. For example, if District A has a population of 750,000 and District B has a population of 800,000, then voters in B have an incrementally less powerful vote. That same principle was made applicable to the states by the 14th Amendment, ratified after the Civil War. In a series of cases in the 1960s, the Supreme Court announced that “equal protection” in the context of state legislative district apportionment meant “one person, one vote.” For example, in Reynolds v. Sims (1964), the Court said:

To the extent that a citizen’s right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. . . . By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean that the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.

But if all equal protection requires is districts of equal population, there is still an infinite number of ways to divide a state’s population into roughly equal segments. The development of software that predicts the likely election consequences of moving even small groups of voters from one district to another has tempted legislatures to find just those configurations that maximize the likely future success of the party in power, while still satisfying the equal population requirement. The Republican legislators in Wisconsin sorted through multiple proposed district maps with the use of redistricting software and the help of political science experts until they found the one they believed would best ensure their control of the legislature for an entire decade even if they were to lose the popular state-wide vote.

The challengers to this plan in Wisconsin were numerous individuals and groups acting on behalf of Democrat voters in the state. There is a subtle but significant difference between protecting an individual voter from the dilution of her vote and protecting a subset of the whole voting population – registered Democrats – from being deprived of a proportionately equal chance to elect Democrat candidates. This difference raises the question of whether the Equal Protection Clause even applies to state-wide voter groups? If it does, are all such groups entitled to equal protection? If Democrats and Republicans as distinct voter groups are entitled to equal protection, how about the Green Party or the American Nazi Party? This is one thing that makes the issues raised in the Wisconsin case so difficult for courts to get their minds around.

There is even a more fundamental legal question the Court must answer before deciding whether the Equal Protection Clause prevents partisan gerrymandering. That question is “justiciability” – whether a clear rule can be found delineating what is acceptable from unacceptable in the drawing of district boundaries and whether courts should step into the political arena at all in view of the separation of powers. In my next post, I will explain why partisan gerrymandering greatly intensified after the Supreme Court’s last pronouncement on these issues in 2010, and where the law now stands on the issues presented in the Wisconsin case.

 

Originalism and the Supreme Court

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President Trump’s nominee for the Supreme Court is Judge Neil Goresuch, who is said to be an Originalist like Justice Scalia, whom he will replace if confirmed.

Originalism is a theory of judicial interpretation that requires the judge to determine what the Constitution meant at the time of its enactment. An Originalist does not believe that an interpretive gloss may be added to this meaning to make the outcome better fit the times. In the case of current statutory interpretation, an Originalist focuses solely on the plain meaning of the words used in a statute without resorting to what judges or others may think Congress intended the statute to mean.

Originalism is a respectable principle by which to resolve controversy about textual meaning. But it can lead to absurd results. Suppose some crank decided to sue the United States Air Force on the ground that its very existence is unconstitutional. Absurd, right? Not to an Originalist.

Article I, Sec. 8 of the Constitution enumerates the powers granted to Congress. Among them are the power “to raise and support Armies” [12], to “provide and maintain a Navy” [13], and to make rules for governing “the land and naval Forces” [14]. There is not a word about air forces in the Constitution for obvious reasons.

Who could doubt that a judge presented with that suit should dismiss it? Even if the language of the Constitution did not specifically bestow on Congress the power to create and regulate an Air Force, the Founding Fathers would have done so had they been able to conceive of the need for one. And the existing language of the Constitution can be interpreted to give Congress the power. Ah, but this is precisely what Originalists believe should not be done.

In the 1972 case of Laird v. Tatum, Justice Douglas elided the issue by saying that “the Army, Navy, and Air Force are comprehended in the constitutional term ‘armies.’” Really? How can that be? Well, of course, it can’t be if we may only interpret and apply the Constitution as originally meant. But it is more sensible now to broaden the term “armies” beyond what it originally meant. This is an example of holistic interpretation, and why it is the favored approach of most jurists.

Judicial conservatives – Originalists – point out that the Constitution separates powers among the three branches of government and Congress is given the sole power to make laws. If the judicial branch interprets and applies a statute so as to give it a meaning not specified by Congress, aren’t judges making law? And if those judges are liberals, won’t conservatives be unhappy with the substance of the judicially made law? Indeed, and the prime example of this is a woman’s right to an abortion recognized in Roe v. Wade but nowhere mentioned in the Constitution.

Here is the essence of the whole controversy about who sits on the Supreme Court. It is the substance of judicial outcomes that matters, not the interpretive theory they are dressed up in. These outcomes are sometimes politically driven. Judge Goresuch has said that Originalism often leads judges to results they don’t like. Perhaps, but Originalists also sometimes engage in holistic interpretation to reach the result they want, although they tend to construct tortured explanations to deny that they have departed from Originalism. Justice Scalia was famous for this.

It is too early to know what political outcomes Judge Goresuch will favor, but he is unlikely to be worse than Justice Scalia on this point. Judge Goresuch is a careful jurist who does not engage in the bullying and intemperate attacks on those who disagree with him as did Justice Scalia. For that reason alone, he will be an improvement if confirmed.

The West Virginia Workplace Freedom Act

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In early February 2016, West Virginia became the 26th state to adopt a “right to work” law, called the Workplace Freedom Act. The new law does not simply prohibit an employer and a labor union from requiring membership in the union as a condition of employment. It goes further and also forbids requiring an employee to pay any dues or fees to a labor union as a condition of employment. The law was vetoed by Governor Tomblin on February 12, 2016 but that veto was overridden by the Legislature on the same day. The new law was to take effect July 1, 2016.

Outlawing any required fee payment to a union is a significant step for West Virginia to take. It reveals that our Legislature was not so much interested in protecting employees from compulsory membership in an organization they might not support, as it was in financially crippling labor unions. In so doing the Legislature advanced a conservative political agenda of long standing. It is the financial harm created by the new law that led the West Virginia AFL-CIO and a number of individual unions to seek an injunction in Kanawha County Circuit Court. The injunction was granted on August 11, 2016 and the implementation of the law postponed until a full decision can be rendered.

To understand this legal and political struggle, a little background is necessary. Unions can gain the right to represent employees only within a bargaining unit — a plant or department. Being an employee in a bargaining unit is not the same as being a dues-paying member of the union. But once a union becomes the bargaining representative of employees in a unit, it has the right and obligation to bargain for and prosecute grievances for all of them, whether or not they are dues-paying members. This frequently involves large sums for trained staff, arbitrators, meeting halls, offices, libraries, and more.

Over time, union security contract clauses were developed requiring an employee to become a dues-paying member of the union within a certain period after employment. If he refused, the employer was contractually bound to terminate him. But because unions engage in political as well as bargaining activity, federal courts refashioned the deal so that no employee is obligated to pay dues for political activity to which he does not subscribe, but can be required to pay a “fair share fee” to cover the collective bargaining and grievance activity the union must provide him. This was the status of the law in West Virginia until last year.

In 1947, Congress allowed individual states to forbid union security clauses altogether. Almost immediately, states in the south and west passed “right to work” laws. Recently as the strength of Republicans grew in state legislatures, RTW laws passed even in industrialized states like Wisconsin and Michigan. Not wanting to be outdone by their conservative brethren elsewhere, the West Virginia Legislature took up the issue in January 2016. The Legislature commissioned a study by WVU predicting the effect of a RTW law on union membership, job growth, GDP growth and wage growth in West Virginia.

The method used in the WVU study was to compare the group of states with RTW laws to the group without them on these various economic factors for the period 1990 to 2012. To determine whether the RTW laws actually caused any of the observed differences, a complicated regression analysis was used. The WVU study predicted that the rate of union membership in West Virginia would fall by around 20% as a result of the adoption of an RTW law. The study also predicted a long term .4% employment growth benefit and a .5% annual increase in GDP growth.

But the WVU study found no causal relationship between RTW laws and wage growth, even though nearly all other studies like this have found a robust negative effect created by RTW laws on state-wide wage growth. For example, a 2015 study by the Economic Policy Institute found workers in RTW states earned $1,558 less per year than similar workers in non-RTW states. These results did not apply just to employees covered by a union contract but to all employees. “Where unions are strong, compensation increases even for workers not covered by any union contract, as nonunion employers face competitive pressure to match union standards.”

Behaving as if the modest coercion involved in requiring an employee to pay a fair share fee was an outrageous affront to liberty, the Legislature blew past the economic benefit to all workers that exists in non-RTW states. The Workplace Freedom Act states that a person may not be required to “pay any dues fees, assessments or other similar charges . . . of any kind or amount to any labor organization.”

The legal attack by the AFL-CIO on this law is that the state has unconstitutionally deprived unions of their property without just compensation by prohibiting them from charging nonmembers the proper fee for the services unions are required to provide. Ken Hall, President of Teamsters Local 175, testified that members would end up paying an extra $172 in union dues to cover services provided to employees who benefitted from them but refused to pay. These arguments were enough to convince Judge Jennifer Bailey of the Kanawha County Circuit Court to enjoin implementation of the law until a full decision could be made in the next few months.

It is hard to predict how this legal battle will be resolved. Like any human institution, labor unions have had their share of bureaucracy, incompetence and corruption. They have also had their share of success in advancing the interests of working people. Unions improve the economic lives of members and non-members alike. Progressives don’t generally support coercion, but requiring a fair share fee from non-members who benefit from union representation seems appropriate. What is really at stake is not some grand concept of freedom and liberty. It is instead the economic viability of unions and the Republicans in the Legislature know this. Without viable unions, corporate power to set compensation will be virtually unchallenged and working class compensation will continue to stagnate.