Chief Justice John Roberts Loves Him Some Ratf*ckin'!

I got no jokes, people. This is a very bad day for democracy. We lost Rucho v. Common Cause, the gerrymandering case, in a 5-4 decision, with Chief Justice John Roberts giving Republican legislatures a thumbs up to ratfuck electoral maps forever. Reasoning that the Framers anticipated gerrymanders and failed to do anything about them, Roberts calls congressional districts a political question outside the purview of the courts.

Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is "incompatible with democratic principles," Arizona State Legislature, 576 U. S., at ___ (slip op., at 1), does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.

It's a darn shame that Republican minorities use maps to systematically entrench themselves in power despite the fact that they consistently get fewer votes than Democrats. Roberts really feels for people trapped in districts where their votes don't count, but dangitall, the Court's hands are tied.

The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.

Here on Planet Earth, a ratfucked state legislature is going to draw ratfucked congressional maps. The odds of the House passing a ban on partisan gerrymanders which can then get through the Senate, where empty Wyoming has the same voting strength as populous California, is only slightly more likely than Donald Trump becoming a vegan and taking up yoga. Democrats passed just such a bill in the House this year, mandating independent redistricting commissions, which Mitch McConnell promptly declared DOA. The fact that Justice Roberts referenced this bill and "the Fairness and Independence in Redistricting Act, which was introduced in 2005 and has been reintroduced in every Congress since," is a very special middle finger to Democrats.

We express no view on any of these pending proposals. We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open.


Just as he did in Shelby County v. Holder, which overturned the pre-clearance requirement of the Voting Rights Act and unleashed a shameful wave of voter suppression, the Chief Justice has given a green light to Republicans in purple states like Michigan and North Carolina to permanently entrench themselves in supermajority legislatures against the will of the voters. He'd like to help, of course, but there's just no way to know if Wisconsin's GOP gerrymandered an election where they took 46 percent of the votes and wound up with 64 percent of the seats in 2018, a Democratic wave year. How can you ever be sure?

The initial difficulty in settling on a "clear, manageable and politically neutral" test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of "unfairness" in any winner-take-all system. Fairness may mean a greater number of competitive districts. Such a claim seeks to undo packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But making as many districts as possible more competitive could be a recipe for disaster for the disadvantaged party. As Justice White has pointed out, "[i]f all or most of the districts are competitive . . . even a narrow statewide preference for either party would produce an overwhelming majority for the winning party in the state legislature." Bandemer, 478 U. S., at 130 (plurality opinion).

He knows that the GOP is going to use the 2020 census data to carve every major metropolitan Democratic stronghold into fifteen little bites and feed them to the red rural areas, and he doesn't care. Or he does care, and he's willing to give Western Maryland to the Democrats in exchange for allowing the GOP to hold Texas, Wisconsin, and North Carolina forever.

Justice Elena Kagan penned a rousing dissent.

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. 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 so doing, 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. And checking them is not beyond the courts. The majority's abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority's own benchmarks. They do not require—indeed, they do not permit—courts to rely on their own ideas of electoral fairness, whether proportional representation or any other. And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process. But yes, the standards used here do allow—as well they should—judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms. In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.

Those are really great words. But they don't change the fact that the door to the federal courthouse is now closed to opponents of gerrymandering. We can fight in state courts, and we can pass ballot initiatives mandating fair districts, and we can mobilize our voters, but the federal judiciary will NEVER step in, no matter how egregiously undemocratic the maps are.

Elections have consequences, and this is a direct consequence of not enough people turning up to vote for Hillary Clinton in the swing states where it mattered. And maybe the pollsters gave us permission to stay home by reassuring us that she'd win without us. But now we know better. So I, Liz Dye, your Five Dollar Feminist, am asking you to consider this as we go into another electoral season. Because the Supreme Court just made it substantially easier for Republicans to rig elections for another decade, which means that your vote in 2020 matters even more. In most states, it falls to the legislature and governors to redraw the maps after the 2020 census, so we have to control as many state capitols as possible.

Your preferred candidate is not likely to emerge victorious in the presidential primary -- I know mine will not. You may find yourself facing a hard choice at home with a flawed Democrat who is pro-coal, or anti-choice, or in bed with the banking industry. I wish the world were different. I wish for 1,000 Elizabeth Warrens and Alexandria Ocasio-Cortezes to bloom. But I know that ugly primaries where Democratic candidates emerge bloodied and covered in mud will make it much harder to win in the general. We cannot go to war with our fellow Democrats in the next year if we hope to be united the following November. (Particularly when some of our best Senate prospects pissed it away on vanity presidential bids.)

This is, without a doubt, the most important election of our lives. So let's not blow it by reposting Russian shit memes and pretending that any Democrat is "the same as Trump." That's what got us into this nightmare in the first place. The stakes are just too high to risk a repeat. SO PLAY NICE, AND SHOW UP.

Thanks, guys.

[Rucho v. Common Cause]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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