Discussing the defeat of anti-gerrmandering reform in California and a similar measure in Ohio, Mickey Kaus writes:
You might say it’s time to take the fight to the courts–and there are valid constitutional arguments to be made, along Baker v. Carr lines, against partisan or pro-incumbent gerrymanders. But isn’t it kind of difficult to argue that the courts need to intervene to make democracy fair after the voters, in a perfectly fair, non-gerrymandered state-wide election, have rejected the idea? This doesn’t seem like a case of minority rights, where the majority’s opinion shouldn’t count. The vast majority of California voters are denied the chance to cast an effective ballot because they live in manipulated districts where the incumbent can’t lose. They don’t seem to care! Who are judges to tell them they should?
I suspect Kaus is right (whether tongue in cheek or not), and that courts shouldn’t overturn the traditional electoral practices in most of the states, but I do think the issue is intellectually interesting. Consider, for example, that a long-accepted principle of voting rights law (of course, long acceptance does not equal wisdom) is that minorities have a right — a right, mind you — not only to be free from discrimination as traditionally understood but also to elect “representatives of their choice.” A typical statement of this right from the Department of Justice:
Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.
John,
The at-large vs. district debate, as you know, is an old one, and you can find the Left on both sides of it. Districts, if they’re designed so as not to cut up cohesive neighborhoods, do in practice allow majority-minority communities a chance to elect “one of their own” — or not. But districts have the (to the Left) unwelcome side effect of giving other parts of town representation as well. When I was in Berkeley, district elections were a conservative cause and at-large a progressive one. The same was true in SF. In Berkeley it was that “the Berkeley Hills” would be guaranteed a couple seats on the City Council. In SF it was similar: districts meant that “those people” would have Council representation. No, not Blacks, silly; Republicans.
The funny thing is that John’s quandary seems like a perfect case for Justice Breyer’s doctrine of “active liberty.”