Partisan GKerrymandering And Racial Hypocrisy

Most of the arguments about gerrymandering are so unprincipled, so controlled by shifting partisan interests, than I’m tempted to say we should start calling it kerrymandering. (Elbrdge Gerry, after whom the practice is named, was after all an early Massachusetts liberal.)

By whatever name it is known, however, a new chapter in its history was written yesterday when the Supreme Court rejected the argument of Pennsylvania Democrats that the districts drawn by Pennsylvania Republicans were unconstitutionally discriminatory. The four conservative justices, led by Justice Scalia, wanted to rule that all such partisan redistricting challenges are non-justiciable. The four liberal justices disagreed, arguing that partisan discrimination can be unconstitutional. Justice Kennedy was the swing vote, voting with the conservatives to let the Pennsylvania results stand but stopping short of saying no challenge to “excessively partisan” gerrymandering could ever succeed. ( See reports here and here.)

What I was most struck by in reading the coverage of this opinion was what wasn’t covered, i.e., the dog that didn’t bark. That, I think, is one of the chief flaws of journalism: it all too often treats each issue, event, decision as discrete, separate, and unconnected. In short, the main problem with journalists is that they aren’t historians.

Thus, in the manner of historians, who have the opposite problem of not being able to discuss anything without writing a dissertation on what happened before, let me say something about what happened before, about the context in which this recent Supremes opinion was not put. That context, not surprisingly (at least not here), concerns race.

As with most historical questions, it’s hard to know where to start. But let’s start with the Republicans, who came up with the utterly brilliant and utterly obnoxious idea of creating “majority-minority” districts, i.e., packing as many blacks as possible into as few districts as possible. Since this would, and did, lead to the election of many more black representatives, the Democrats, who had long ago given up their devotion to the principle of non-discrimination, could hardly complain, and they didn’t, and the Republicans cleaned up by electing more Republicans from the newly bleached surrounding districts. This behavior earned the Republicans the un-coveted Discriminations Hypocrisy Award, handed out here.

The Democrats, however, did not remain behind in the hypocrisy race for long, and indeed were awarded the Discriminations Award for Brazenness, also here, for their creative comeback. As their award states:

The necessity for “majority-minority” districts was based on the assumption of “bloc voting,” that whites wouldn’t vote for blacks, but it did not take long for that assumption to be proven false. Once it became clear that super-majorities of blacks were not necessary to elect at least a significant number of blacks, the Democrats slowly emerged from the woodwork and began to argue (remember, they’ve never been addicted to consistency) that herding too many blacks into “majority-minority” districts was racist, smacking of apartheid. At the same time, however, they argued that placing too few blacks in a district was also racist. To the Democrats, “too many” means more than enough to assure the election of a Democrat, and “too few” means not enough. By some cosmic co-incidence, the Democrats implicitly argue, that precise balance is what the law requires.

I’m leaving out a lot here (this may be history, but it’s the short, abridged version), but fast forward to the long saga of the oddly shaped 12th district of North Carolina that gave so many opportunities to Justice O’Connor to switch from one side to the other. Initially she found the racial motive in shaping that district so pervasive that she called it “political apartheid” (Shaw v. Reno, 509 U.S. 630 [1993]), but after the case had bounced up and down the judicial ladder for years in the end she voted with the liberals in holding that since most blacks were Democrats the racial motive could not be distinguished from the political motive. (Hunt v. Cromartie, 532 U.S. 234 (2001)) In short, the Court held that (quoting myself from a discussion here)

packing blacks into a district in sufficient numbers to elect a Democrat was legitimate because partisan, as opposed to racial, motive is O.K. Where, as here, said the Court (with Sandra having switched sides to make a 5 vote majority), race correlates so closely with partisanship the complaining party must show that race itself, not partisanship, was not only a motive but the “predominant” motive.

In other words, said the court (actually, in pretty much these words), racial gerrymandering is not racial gerrymandering when its predominant purpose is partisan, i.e., to elect Democrats.

Now, forget Hunt v. Cromartie (the Democrats and most of the press certainly did) and skip out to Texas, where the Democrats actually fled the state several times in an ultimately futile effort to block the Republican-controlled legislature from redistricting. (See here, here, here, and here.)

In Texas, the Republicans did exactly what the Democrats had successfully persuaded the Court to uphold in North Carolina — that is, they “took race into account” as part of a redistricting process whose “predominant” motive was partisan, i.e., to elect more Republicans. The civil rights groups and their allies, no doubt confident no one would recall the arguments they had made for years in North Carolina (no one did), then proceeded bitterly to denounce the Republicans as racists. In North Carolina, I wrote here,

The Democrats said in effect, �Who? Us? When we assigned those voters we didn�t really care that they were black. All we cared about is that they are Democrats.� By the time this case bounced back and forth and returned to a Supreme Court … on which sat a new (though arguably not improved) version of Justice O�Connor, the Supremes agreed….

But now that Texas Republicans are behaving in a manner that is virtually identical to what the Supremes approved for North Carolina Democrats, the Texas Democrats are crying foul. U.S. Rep. Ruben Hinojoso (D, Tex) said that a new redistricting map just approved by the Texas House �represented one of the greatest acts of political apartheid ever visited upon Hispanic Americans and South Texans.� He said this even though the Republican plan does not reduce the number of minority representatives in Congress at all.

So much for history. The memory lapse continues. In none of the press coverage of the recent Pennsylvania case did I see anyone point out that the dissenting justices, who believe that excessively partisan gerrymandering is (or can be?) unconstitutional, are the very justices who upheld racial gerrymandering because it could not be distinguished from partisan gerrymandering, which they then believed had no constitutional infirmities.

If I’ve overstated the widespread hypocrisy here (is it possible to overstate the hypocrisy here?), I’m sure some of you will let me know.

UPDATE

The Democrats continue to oppose partisan gerrmandering (until,one supposes, one of their redistricting efforts is challenged).(Link via Rick Hasen, who has much good discussion of this issue.)