The week before Independence Day, Chief Justice John Roberts gave the United States two extraordinary rulings on the nature of American democracy. Both cases are about fair elections, and both outcomes are all about John Roberts.
The first enshrines the partisan manipulation of voting districts, what’s called “gerrymandering,” as a practice beyond the control of the courts. The second ruling challenged the Trump administration to speak openly about its views on citizenship and representation. The administration declined and departed the field abruptly on July 2. However, President Trump tweeted the next day that he is “absolutely moving forward” with the census citizenship question, so the controversy will continue.
A right to fair elections? The text of the Constitution protects many rights, but voting in an election with fair rules is not one of them.
The two cases this year — on the census in Department of Commerce v. New York and on gerrymandering in Rucho v. Common Cause – challenged the Supreme Court to change this.
The justices did not. And the cases are intimately connected.
The Constitution commands a count of the population every 10 years so that we can know how many representatives in Congress and votes in the Electoral College each state receives for the following decade.
Then those same data are used by each state to establish the new boundaries of its legislative districts. The data also are used to determine how much money the federal government sends states for a variety of mandated programs.
This process of counting people and then dividing them into districts is the heart of how we turn the democratic ideal — representation of the people — into the selection of leaders through elections. But what that process should look like is anything but clear, because it raises problematic questions about who is represented and how.
The gerrymandering case is about whether the political party in control of a state legislature can alter the electoral maps to make it harder for their party to be removed from office.
To many, this sounds like a clear violation of representative democracy. But has a right been violated? If not, then allocating electoral districts remains a power assigned to the political branches, which means the courts have little role in it. The core problem the Supreme Court faces in dealing with even blatant gerrymandering is that the Constitution does not identify a clear right to fair elections. It speaks of rights to freedom of speech, religion and the press, but it does not mention freedom from manipulation in counting Americans or allocating them to electoral districts. The irony of the court’s ruling is that gerrymandering can only be solved by voters showing disapproval of the politicians who shifted the rules, but those shifts are what make it harder for voters to do that.
While previous Supreme Court rulings left room for future challenges to gerrymandering (better measures, worse examples), the recent decision seems to be definitive. The practice surely will increase in the future, insulated from judicial challenge. But the prospects for the 2020 census are not so clear. The census case is about whether including a citizenship question violates the constitutional command to conduct an accurate count. Underneath this question is the debate over who gets to be represented in our system. Is it everyone living in the United States? Or is it just citizens? If “the people” are to be represented, defining those people in the current political age has proved to be deeply divisive. But it must be done if the census is to count the people who count. The plaintiffs contend that the commerce secretary, Wilbur Ross, intentionally added the citizenship question to discourage recent Hispanic immigrants from filling out the census form. They offer an analysis from the Census Bureau concluding that including the question will lower the response rate by noncitizens by about 5%, resulting in millions of people being uncounted, unrepresented and unfunded in federal government programs.
Roberts wrote the court’s opinions in both cases, the fifth justice in each 5-4 decision.
In the gerrymandering case, Roberts joined with the other four conservatives against intervention by the court.
In the census case, he did not really decide at all. While the four liberal justices were willing to reject the citizenship question outright, Roberts would only go so far as demanding more information first.
The undisputed winner is the influence of John Roberts.