Brian Dickerson Detroit Free Press
Published 6:00 AM EDT May 19, 2019
Suppose that governors representing four of the most populous states in the country simultaneously alerted the U.S. Department of Homeland Security that a foreign government had hacked into their states’ voting machines and manipulated vote totals in every election since 2012, casting doubt on the legitimacy of the results.
Now suppose that each of the four states produced overwhelming evidence — incriminating email correspondence, confessions under oath, detailed computer records and the like — supporting its allegations that the hackers had successfully intervened to change election results.
Could federal officials ignore such a frontal assault on the democratic process? Is it conceivable that any of the states would be permitted to hold its next election without taking steps to protect the integrity of future election results?
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Surely most Americans would demand a forceful government response to any scenario as stark as the one I’ve outlined here.
Yet something very much like that scenario is playing out, right now, in the United States Supreme Court — and the court’s conservative majority seems poised to look the other way, allowing the massive electoral fraud exposed by exhaustive judicial inquiries in four states to proceed unchecked, at least for the next election cycle.
A dozen judges, one conclusion
As I write this, four separate three-judge panels convened in Michigan, Ohio, North Carolina and Maryland have independently concluded that each of those state’s last four elections were illegally rigged in favor of the dominant political party.
In Michigan, a constitutional challenge filed by the state League of Women Voters chapter and 11 Democratic voters in 2017 was upheld last month when U.S. Circuit Court of Appeals Judge Eric Clay, a Bill Clinton appointee, and U.S. District Court judges Denise Page Hood and Gordon Quist, appointed by Clinton and George H.W. Bush, respectively, agreed that Michigan’s political map systematically dilutes the power of Democratic votes, assuring Republican majorities in the state Legislature and congressional delegation even when Democratic candidates garner more total votes.
Republican lawmakers defending the current map are seeking a U.S. Supreme Court stay to delay implementation of the remedy prescribed by Clay and his colleagues, which calls on Michigan to adopt new congressional and legislative boundaries by Aug. 1 and schedule a special state Senate election for 2020 — two years earlier than state senators elected in 2018 would ordinarily have to stand for re-election.
A ruling striking down Ohio’s congressional map on nearly identical grounds orders the state to reconfigure the state’s congressional boundaries by next month, and warns that the court will consider imposing its own map if Ohio lawmakers fail to comply. But Ohio’s Republican elected officials are seeking a Supreme Court stay of that order, too.
The pending cases
What ultimately happens in Michigan and Ohio will depend on how justices rule in two other gerrymandering cases already pending before them.
In the first case, the high court is being asked to uphold a federal panel’s ruling ordering Maryland to redo a congressional map judges found was designed to discriminate against Republican voters.
In the second, North Carolina Republicans seeking to overturn yet another three-judge panel’s decision throwing out that state’s congressional map on grounds it illegally marginalizes Democratic voters.
The court heard oral arguments in both cases this past March and will rule on them before it adjourns in next month. Justices will almost certainly agree to put the Michigan and Ohio cases on hold at least until then.
In all four states, judges who heard weeks of testimony produced voluminous rulings that meticulously described how majority party legislators manipulated the redistricting process to assure that their parties maintained legislative and/or congressional majorities no matter what voters did.
In each case, conservatives and liberals agreed that the states under scrutiny could hold fair and legal elections only by reconfiguring their political maps to eliminate distortions that gave one party a prohibitive advantage.
Justices under pressure
Justice are asked to review hundreds of lower court rulings every day. They intervene in only a small minority of those cases, and when they do intervene, it’s not usual for them to decide that a trial judge or appellate panel got it wrong.
But the gerrymandering cases are unique in several respects.
For starters, a law enacted by Congress mandates that federal lawsuits challenging the constitutionality of any state’s political map be heard initially by special district court panels that includes at least one Circuit Court of Appeals judge.
In most instances, Supreme Court justices can decide whether or not to review a lower court’s ruling; in the case of redistricting lawsuits, the high court has no choice.
“The panel knows its decision will be reviewed by the Supreme Court, so its decision, for better or worse, often reads like an exhortation to the justices,” Mark Joseph Stern, a lawyer who writes frequently about the high court explained in a recent review of the gerrymandering decisions for the online magazine Slate.
A succession of high court majorities has conceded in previous Supreme Court cases that partisan gerrymanders like the ones struck down in Michigan, Ohio, North Carolina and Maryland may violate the rights of voters whose preferred party is handicapped. But conservative justices led by Chief Justice John Roberts have expressed reluctance to correct even gross distortions, arguing that it is up to voters to demand that patently unfair boundaries be redrawn.
Those who want the high court to put an end to extreme gerrymanders worry that the newest justice, Brett Kavanaugh, will side with Roberts’ hands-off block, abandoning voters in four states to yet another round of rigged elections.
What we have, in the four gerrymandering cases confronting the court, is 12 judges, including four appointed by Republican presidents, begging the Supreme Court to choose a more proactive path.
New twist on an old threat
If the lower court judges are right — and they have documented their conclusions in a series of meticulously detailed opinions that run hundreds of pages each — the venerable art of gerrymandering has entered a dangerous new digital age. Sophisticated data collection and mapping software has given parties that exercise temporary control of their state’s legislatures the means to simulate thousands or even tens of thousands of possible boundary arrangements, methodically locking in on the one that most effectively neutralizes its opponents’ electoral support.
For justices skeptical that the judiciary can or should intervene to level the playing field, the 12 judges have outlined in detail the steps the judiciary can take to ensure that every vote counts equally, and to restore the public’s confidence that our elections are fair and legal.
Examined separately, the decisions striking down unconstitutional political maps in Michigan, Ohio, Maryland and North Carolina expose egregious abuses of partisan political power. Considered collectively, they describe a singular threat to the legitimacy of representative government.
The last time the American homeland came under simultaneous attacks in four venues, the federal government responded energetically. Supreme Court justices should consider the possibility that this more subtle attack, waged with mapping software instead of airplanes, requires an equally vigorous response.
Brian Dickerson is the Free Press’ editorial page editor. Contact him at [email protected]
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