Legal Docket: Gerrymandered political maps

NICK EICHER, HOST: It’s Monday morning and the start of a new work week for The World and Everything in It. Today is the 15th of April, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Nick, let’s take a moment here and acknowledge something we thought we knew, but now we know for sure. I’m talking about the people we met on Friday in Raleigh, North Carolina.

Weren’t they the best?

I’m talking, of course, about the live radio event we did, with our friends from The Summit Church lending us their space. More than 200 of you spent a couple of hours with us. We talked together about the importance of biblically objective journalism—from news and feature reporting to cultural reviewing.

But one of the important keys was connection. We wanted to meet you, but we also wanted you to meet one another. We have important interests in common and together, we’re a community.

EICHER: And you know, communities pitch in and help one another out!

Our friend and colleague Paul Butler played a key role in helping us get prepared, and he was on his way down, when he got slammed with flight delay after flight delay—out of Chicago.

We kept hoping for the best and his flight finally got underway, and even landed before our start time. Paul called me from the plane.

But when a Raleigh friend told me the jaunt from the airport to our location: in this traffic, he said, it’s 40 minutes. I realized it was time for Plan B.

We’d need to get our friends involved.

See, Paul had planned sound and music, our theme music, and we just weren’t going to be able to use it, so we tapped our friends in the audience to hum it for us.

So here’s how the whole thing began Friday night.

We planned our usual listener pre-roll. As it happened, listener Joanne Karunakaren sent one in several weeks ago, and, well, I’ll play for you about a minute of how this went.

AUDIO: “So I reached out to Joanne and I said, ‘You strike me as the kind of person who would be easy to get up in front of a crowd and do that preroll again.  

And she said, “I am!”

“So, Joanne, where are you? Come on up here to this microphone!”

“So Joanne is going to do our preroll and as soon as she ends with — and we know what your ending is, which is, ‘I hope you enjoy tonight’s program.’

“As soon as you hear her say, ‘…  program,’ what are you going to do?”

Ta-da-dah-dah-da-da-dahhhhh

“So talented!”

“Okay, one more time: ‘I hope you enjoy tonight’s program!’”

Ta-da-dah-dah-da-da-dahhhhh

“Joanne, this is gonna work! It’s gonna work. OK, anytime you’re ready.”

“The World and Everything in It is made possible by listeners like us. Hello, everyone, my name is Joanne Karunakaran, and I’m a designer and project manager here in Raleigh, NC. I hope you enjoy tonight’s program!”

Ta-da-dah-dah-da-da-dahhhhh

Good evening! First up tonight, the story of an American hero…  

REICHARD: So, right there we had it. It was so much fun. We had Megan Basham with us, and Paul arrived in time to talk about how he works with the reporters to produce great features.

And we did have the fun of playing our ending theme, because he was able to plug in the system he’d brought down there with him.

But, what a great event! And we’re looking forward to our next one, in Dallas, on May 3rd. We’re about filled up, so if you haven’t registered, please do that. We’ll have a terrific time together.

EICHER: Details are online at worldandeverything.org. Look for the “Engage” pull-down, click that, and select “Live Events.”

What a blast we had! Looking forward to our next one.

REICHARD: Well, let’s get to work here. The Supreme Court is back today for its final two weeks of oral arguments. The justices will be handing down opinions through end of June when the term wraps up.

EICHER: Today, the final two arguments from March.

Both are fights over gerrymandering. It’s a recurring dispute before the high court, and it just seems intractable.

Gerrymander is a political term. It means to rig the boundaries of political districts, usually unfairly, so that one party is favored over another.

Every decade, after the census, it’s often necessary to redraw the political boundaries to reflect changes in population. Not all redraws are gerrymanders, and not all gerrymanders are illegal.

But drawing political boundaries is a political process, and the party in power gets to draw them. So you can imagine where it can become a problem.

But the persistent legal bedevilment is over the mix of criteria used to draw those boundaries: too much race, too much political consideration, too much dilution of race. These are areas that can foster accusations of unfairness.

REICHARD: The Supreme Court ruled in 1986 that some partisan gerrymandering is unconstitutional.

But the court didn’t set out a test to help courts discern where those legal boundaries lie, so to speak.

Just last term, one side in a gerrymander fight in Wisconsin purported to boil things down to a mathematical formula.

It was supposed to determine for sure when one party “unfairly” benefited by a particular map.

Chief Justice John Roberts cast that argument as, well, I’ll let him tell it his way. I’ll just say he didn’t seem persuaded.

ROBERTS: The whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.

It’s that “illusion of precision,” as writer John Ryder put it, that seduces judges to presume “the answer” is at hand.

But here we are again with two cases. Number one [Lamone v Benisek (MD)] is from Maryland, where Democrats are accused of drawing unfair maps. Number two [Rucho v Common Cause (NC)], from North Carolina, where Republicans are accused of doing the same thing.

Now, to make things easier to follow, I’m using audio from both hours of argument. The arguments are basically the same, as are the justices’ questions.

Defending the Democrat-drawn map in Maryland was lawyer Michael Kimberly.

Justices on both sides of the ideological divide speared him with skepticism.

Listen to this exchange between Kimberly and Justice Neil Gorsuch:

KIMBERLY: It’s just to say that where there’s smoke you’re probably gonna find fire. And if you don’t see smoke you’re probably not gonna see fire.

GORSUCH: Is another way of putting the test is I know it when I see it? [Laughter]

That’s a reference a very famous Supreme Court Justice quotation. Justice Potter Stewart in 1968 said he couldn’t define obscenity, but he knew it when he saw it.

I’ll move now to the North Carolina case. Lawyer Paul Clement defended the Republican-drawn maps under challenge. Clement pointed out what’s obvious to so many voters. Red-state voters who live in blue states, and vice versa:

CLEMENT: You know, lots and lots of voters live in a district where, either because of geography or because of state action, they’re not going to have their preferred candidate elected. Indeed, I’d go further and say most Americans don’t get their preferred candidate elected because they have to choose from the candidates that are before them, and maybe based on the district they live in, it tends to give them a relatively liberal Democrat or a relatively conservative Republican when really what they’d prefer is somebody down the middle. And none of those things, I think, are things are constitutionally entitled to.

Actually, Clement argued, that less-than-ideal notion is baked right into the cake the Framers’ intended to make.

CLEMENT: This Court has repeatedly failed to identify a justiciable standard for partisan gerrymandering claims. The cause of that failure is not a lack of judicial imagination or a lack of claims that the particular map before the Court was the most extreme ever. Rather, the root cause of this failure is the basic decision of the framers to give responsibility for congressional districting to political actors. The framers consciously chose to give the primary authority to state legislatures.

Clement adding that those state legislatures would be supervised by Congress to ensure as much fairness as is possible.

Now, reminder, I’m jumping back and forth between these cases because they’re mirror images. The arguments are basically the same, as are the legal principles. The North Carolina case is about Republican-drawn districts under challenge. The Maryland case is about Democrat-drawn districts under challenge.

In Maryland, the state Solicitor General Steven Sullivan urged the court to create some standard to finally resolve the persistent gerrymander tensions.

But Justice Stephen Breyer wondered whether courts should even step into this mess. He laid it out like this from the perspective of the Republicans in Maryland aggrieved by the maps there:

BREYER: So it’s absolutely indisputed that there was a clear and absolute intent to do this just so the Democrats could get the district. Number two, it is indisputed this will have an effect of giving this district to the Democrats…. And, number three, it will happen for the next 20 years. Okay? So we got all three parts, I think, if I understand it correctly. On that assumption, would you say this Court should intervene?

SULLIVAN: If you have that circumstance, then you’re going to have to intervene in Arkansas, Kansas, Massachusetts, Oklahoma, Alabama, Kentucky, Tennessee, and Utah, all states where more than 60 percent of the votes are cast for one party.

Justice Neil Gorsuch cast about for other solutions than for the court to get involved. Arizona opted for an independent redistricting commission solution to drawing maps, but that has its detractors, too.

The human tendency to self-serve rears its ugly head no matter what.

GORSUCH: One of the arguments that we’ve heard is that the Court must act because nobody else can as a practical matter. But given Arizona, and that is the holding of the Court, is that true? And to what extent have states, through their initiatives, citizen initiatives, or at the ballot box in elections through their legislatures, amended their constitutions or otherwise provided for remedies in this area? And I happen to know my home state of Colorado this past November had such a referendum on the ballot that passed….

But Justice Elena Kagan countered Justice Gorsuch’s assumptions.

KAGAN: I mean, going down that road would suggest that Justice Gorsuch’s attempt to sort of say this is not so bad because the people can fix it is not so true. Because you’re suggesting that the people really maybe can’t fix it….so Justice Gorsuch’s attempts to save what’s so dramatically wrong here, which is the Court leaving this all to professional politicians who have an interest in districting according to their own partisan interests, seems to fail.

Justice Ruth Bader Ginsburg also threw water on letting voters decide through referendums or other methods as suggested by Justice Gorsuch.

GINSBURG: It has been suggested from reading what was on the ballot that most citizens wouldn’t understand at all what they were voting for.

SULLIVAN: This Court has — has not presumed that voters don’t understand. In the Anderson case on which plaintiffs rely, the court said that …the court’s going to presume that people are informed.

Justice Stephen Breyer looked to the past and to the future to restate the problem as he saw it.

BREYER: Now if we look at history, there wasn’t that much gerrymandering in the past compared to what there might be with computers in the future, Okay? So I’ve tried to figure out something simple, not going to get all — every judge in the country mixed up, not going to lead to every election contested and throw it all to the judges instead of the people. Okay? Anybody can figure it out… there is a great concern that unless you have a very clear standard, you will turn many, many elections in the United States over to the judges. There’s always someone who wants to contest it. They will always find experts of all kinds. And what you’ll discover is judges simply deciding too much.

I’ve got to be honest with you here: After all this, I’m not sure we’re any closer to a solution than when the day of argument started. Justice Brett Kavanaugh almost seemed to throw up his hands.

KAVANAUGH: Have we reached the moment…even though it would be a big lift for this Court to get involved, where the other actors can’t do it?

And in another part of the argument, lawyer Paul Clement made my point.

CLEMENT: I don’t think anybody has a solution…

So, leave it to the political branches?

Resolve it once and for all at the judicial branch?

Is it even possible to fashion a manageable and workable standard?

The court’s not resolved this one way or another despite multiple chances to do so.

We’ll find out by end of June whether they kick the can down the road one more time.

And that’s this week’s Legal Docket.

(AP Photo/Manuel Balce Ceneta) In this Oct. 4, 2018 file photo, the U.S. Supreme Court is seen at sunset in Washington. 

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