On Monday, Circuit Judge Kenneth Ripple, writing for a three-judge panel in the Western District of Wisconsin, “struck down” the state legislative maps of the Wisconsin legislature. It’s bad enough the federal courts are overturning Republican federal district maps, even though states have plenary power over redistricting; now they are venturing into state district maps. Judge Ripple, joined by Judge Barbara Crabb, ordered the two political parties to submit alternative maps to the court for review in 45 days.
“Act 43 [the redistricting map] did, in fact, prevent Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans,” wrote Judge Ripple in a 139-page ruling.
Gee … Ya think? The majority party didn’t give the opposing party the same ability to “translate their votes into seats as effectively” as them?! The horror!
Sensing the unprecedented nature of this opinion — given that majority parties have always given themselves an electoral advantage even without egregious gerrymanders — Judge Ripple turned to the age-old panic button: the invisible ink in the Fourteenth Amendment. “It is entirely possible to conform to legitimate redistricting purposes but still violate the Fourteenth Amendment because the discriminatory action is an operative factor in choosing the plan,” speculated Ripple. Indeed, anything is possible when a federal judge gets his hands on the Fourteenth Amendment. Marriages can be redefined, men can turn into women, and everything that the Constitution rejected somehow makes an appearance.
Folks, this is not the system of governance we have adopted. A few points are in order:
- There is nothing in the federal Constitution from which we can glean a method for state legislative redistricting. That is entirely up to the state legislatures. Any complaint about state maps should be brought in state court. As Justice Clarence Thomas said in a recent case,
[T]here is no single “correct” method of apportioning state legislatures. And the Constitution did not make this Court “a centralized politburo appointed for life to dictate to the provinces the ‘correct’ theories of democratic representation, [or] the ‘best’ electoral systems for securing truly ‘representative’ government.
- Yes, both political parties are guilty of gerrymandering in their favor when they seize control of state government. That is part of politics and the spoils of war. While legislative gerrymanders — when taken to an extreme and disrespect natural geographic and demographic boundaries — are insidious, they are not nearly as bad as judicial gerrymanders. Federal judges are unelected and serve life-tenures. There is no recourse when they subjectively redraw maps. Moreover, there is no uniform standard of what constitutes an unconstitutional gerrymander. This is why many Democrat gerrymanders (like in my home state of Maryland) are left intact by the courts but GOP maps are tossed out in a flash.
- 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.” As I explained last week, because 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. This point was hammered home by the Wisconsin Institute for Law and Liberty and the state’s attorney general, who plans to appeal this decision directly to the Supreme Court.
For how much longer are we going to arrogate to the federal courts power that was granted to the states and the people?
This decision is very disconcerting because it will encourage Democrats to challenge any map in the many other states where Republicans have super-majority control of the legislature simply because of the outcome of the election. Given that Democrats are at their low-water mark in state control since the Civil War, they have nowhere to turn but the courts. Unless Congress reforms the jurisdiction of the lower federal courts and returns election law to state courts, Democrats will find sympathetic judges willing to enact their agenda for years to come. It will take a long time, if ever, for a Trump administration to appoint enough lower court judges to tip the balance in most parts of the country.
If Republican legislators were smart, they’d join together in the coming year to pass resolutions to convene a Convention of the States and exact their revenge against the federal judiciary. Given that one of the subject matters of the convention already agreed to by eight states is restricting “the power and jurisdiction of the federal government,” any amendment to transfer power from federal to state court would be germane at an Article V Convention.
The courts have had their say. Time for states to fight back.