Unless Congress acts to limit the power of the federal courts, the entire GOP dominance over state legislatures is permanently in jeopardy. Based on a unanimous opinion from the high court today, the ACLU and Democrat operatives could now sue in federal court over almost any GOP state legislative map, apply macro disparate impact theory to assert that there are too many Republican districts, violating the 14th Amendment, and then potentially demand immediate elections to rectify the maps, even during off years. At the same time, even a “more conservative” Supreme Court cannot be counted upon to protect real liberties and overturn terrible lower court decisions.
Last month, we noted how the Supreme Court agreed with the lower courts to overturn North Carolina’s federal congressional maps, based on codifying Democrat racial and political gerrymandering into law. States are placed in an untenable position in which they must factor in race in order to satisfy the Voting Rights Act, but they are now told they can’t pack too many blacks into a district because, essentially, that doesn’t create enough Democrat districts. Today, the courts have done the same thing for state legislative maps, an area of law over which federal courts should not even have any jurisdiction.
In North Carolina v. Covington, a per curiam decision from the court upheld the district court’s opinion striking down 28 state legislative districts as racially gerrymandered. And while the court kept in place a stay on the lower court’s unprecedented order to conduct a new election this year (during an off year), it remanded it for further hearings, paving the road to legitimizing such a practice of court-ordered elections. Yes, courts can now order times, methods, and procedures of elections, something that the Constitution explicitly assigns to the states, especially regarding statewide offices. Even Congress has no jurisdiction over state legislative elections, but the federal courts, as long as they assert race, can make anything part of their jurisdiction – if we let them.
While both sides engage in gerrymandering to benefit their respective parties, the courts are creating a dangerous precedent of siding with even the more egregious racial gerrymandering of Democrats, while ignoring the fact that much of the GOP “gerrymander” is based on natural political boundaries. Last year, when a panel for the Seventh Circuit “struck down” Wisconsin’s state legislative maps, I observed the following:
The reason it is the Democrats that actually gerrymander more in order to gain an advantage is because, as I noted in my report on state legislative elections, Democrats have naturally gerrymandered themselves into oblivion in swing states due to their narrow ideological appeal to a few demographics that are geographically isolated. Sure, Republicans modestly gerrymandered to gain an even better advantage around the Madison and Milwaukee areas, but as Judge William Griesbach wrote in his dissent, “the gerrymandering party very likely would have won both elections conducted under the challenged plan even without gerrymandering.” … [B]ecause Democrats have little appeal outside of urban areas, they lose state legislatures even in states that are toss-ups or lean-blue in presidential elections. It downright takes an egregious Democrat gerrymander to remain competitive in state legislatures because they must spread around urban areas in rural districts. If they don’t like it maybe they should change their ideology. Either way, this is a political issue, not a legal argument for the courts, and certainly not for federal court.
In recent years, the lower courts have literally ruled that Democrats have the right to use race to maximize their political advantage simply because their voters happen to be overwhelmingly black. Yet Republicans evidently don’t have a commensurate right to maximize their natural advantages with other voters and jurisdictions, which explains why Maryland’s map – the most gerrymandered in the country – is still standing.
The Supreme Court has now allowed the lower court assault on North Carolina’s federal maps, state maps, and photo ID/early voting law to stand. And this trend is not limited to North Carolina. Former Attorney General Eric Holder is leading the effort to use the court’s opinions in these cases to overturn any semblance of election sanity in every other GOP-controlled state.
What these cases collectively demonstrate is that, per one of the theses of my book, the power of good judges to save conservative political outcomes is nowhere near the power of liberal judges to do harm to our goals and the Constitution itself. With the lower courts irremediably broken for a generation (no, Trump will not be able to fundamentally swing the balance of most circuits), and the Left in full control of the legal profession and the flow of lawsuits, Gorsuch’s appointment to the high court will not change much of the outcome. Endless reams of lower court case law will be built ever larger, creating new electoral advantages, and the Supreme Court, under the leadership of Chief Justice Roberts, will remain reluctant to overturn those decisions.
Consider how radical the Supreme Court has become and how unhelpful the conservative judges are to our causes when we have election maps that were approved by Obama’s Department of Justice and upheld by North Carolina’s Supreme Court but nullified by lower federal courts, and the U.S. Supreme Court refuses step in.
The question is, will Congress finally kick the courts out of redistricting and allow states to decide for themselves, or will Congress allow the federal courts to create a permanent Democrat majority? Until and unless one can concoct an objective system of drawing maps – one that is applied equally in every state — it is simply unfair to allow the unelected branch of the federal government to engage in disruptive judicial gerrymandering, often in middle of election cycles. We know Republicans don’t care about the judicial assault on marriage, religious liberty, life, and sovereignty, but don’t they care about their own ability to get elected?