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Finally Weighing in on Utah Redistricting

September 28, 2011 by 2 Comments
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Here in Utah we’re approaching the end of a months-long ordeal forced upon us (and every other state) every ten years by the Constitution:  congressional redistricting.  And with the results of the 2010 census showing that Utah is entitled to a fourth congressional seat, the stakes are extra high for parties and individual candidates (or prospective candidates — I’m looking at you @CarlWimmer) alike.

In Utah, the ultimate authority to set electoral boundaries rests with the Republican-dominated state legislature, which has created a redistricting commission tasked with recommending a proposal to the general legislative body at the special legislative session set to begin on next Monday, October 3, 2011.  For the last three months (or more), the commission has been travelling all over the state to obtain public input on specific proposals and general principles.

Yesterday morning, September 27, 2011, the redistricting commission met at the state capitol to take action on some proposed maps and to take public input.  I attended — for the first time.  Although things were an hour late in getting underway, it was nonetheless an interesting show once it got going.

Ultimately, the commission adopted a base map — referred to by the straightforward name Sumsion_06_Modified_A — which I don’t particularly like for a number of reasons.  But that’s a post for later this week.  Right now, I want to speak more generally about redistricting, realizing that I’m woefully late to the party.

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One of the reasons redistricting is such a reliably thorny issue is there’s no consensus on what redistricting is meant accomplish.  Is redistricting just about accounting for shifts in population in the years since the last census?  Is it about ensuring meaningful (or more meaningful) electoral competition?  Is it an opportunity to strengthen democratic institutions and community bonds?  Or, more cynically, is it just another opportunity for the more dominant party to consolidate political advantage and a tool for demographically weak geographies (whether urban or rural) to maintain political power out of proportion to population?

Practically-speaking, redistricting is all of these things.  In a more ideal world, however, it is (or should be) about all of the first three and not about the last two.  Redistricting should be a balancing exercise, in which state legislatures meet, at least every ten years, to account for changing demographics and to structure the rules of political competition in ways that ensure elections remain meaningfully contested, democratic commitment is strengthened, and sense of political community is maintained.  Hardly an enviable task . . . which is something we should all keep in mind the next time we criticize (as we often must) the poor souls assigned to the task.

Things become even more complicated because our state legislators aren’t free to balance these three considerations in any way they see fit.  There are some rules that assign preference.

If for no other reason than Supreme Court mandate, one redistricting concern necessarily predominates over the other two:  that there be an equivalency of each man or woman’s vote.  Known more simply as the “One Man, One Vote” doctrine, voter equivalency requires that, at the very least, congressional districts may not be so skewed in population as to meaningfully dilute or concentrate a person’s vote in relation to those of voters in other districts.

While this doesn’t require exact mathematical equivalency in population among districts, it requires that you get pretty darn close, especially when you’re redistricting for congressional seats.  In fact, the Supreme Court has declined to set any safe harbor for population deviation in redistricting (i.e., it has refused to say something like “so long as population deviation is not greater than 1 percent, you’re OK”).  Instead, the Court has left the rule as “you’ve got to get as close to perfect equivalency as possible, unless you have a legitimate concern justifying minimal deviation.”  This essentially tells the state legislators tasked with drawing congressional electoral boundaries that the only time they can be absolutely certain of being immune to challenge is where they draw boundaries with the minimum possible amount of deviation; once they choose to depart from that principle, they enter a realm of uncertainty:  their efforts may be upheld, but they may also be struck down on judicial challenge.

The practical effect of the Supreme Court’s “One Man, One Vote” doctrine is to severely limit the extent that a state legislature can consider other factors in drawing congressional electoral districts.  This is a necessary limitation, given our country’s system of representation and political history.  But some legislatures use this necessary limitation as an excuse to not consider other factors at all, or to give them only the most cursory consideration.  I believe that such an approach is misguided and not mandated by law.

In my opinion, redistricting should be about making individual votes as meaningful as they can be, within the constraints of the “One Man, One Vote” doctrine.  Indeed, the fundamental idea underlying the “One Man, One Vote” doctrine is that skewed population distributions among congressional districts undermine the efficacy of individual votes.  But there are other ways besides population deviation in which the efficacy of a vote can be undermined.  It’s important to remember that even though we vote as individuals, we live in different places and act collectively.  Collective action determined by individual votes means that the efficacy of an individual’s vote can be undermined by the creation of “safe” districts.  It means that the efficacy of a person’s vote can be undermined by the creation of districts designed specifically to exclude opposing viewpoints from having any say in governance.  It means that the efficacy of an individual’s vote can be effectively undermined, or even silenced, as to specific issues, by unnecessarily splitting up connected neighborhoods or “communities of interest,” difficult as those are to define.

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Now, none of this means that a redistricting legislature should pursue these goals without regard to the realities on the ground.  That, too, would undermine the efficacy of individual votes.  Where one governing philosophy or political party predominates over another in a jurisdiction because it has prevailed in the public contest of ideas, redistricting shouldn’t be used to manufacture competition inconsistent with that reality.  But where a more competitive option consistent with the “One Man, One Vote” doctrine exists, it should be pursued over a less competitive option.  Where a more community-friendly option consistent with the “One Man, One Vote” doctrine, exists that should be pursued over an option that cuts apart communities of similar demographic characteristics and historical attachment.  And certainly, either of these are preferable to an option, even if it is consistent with the “One Man, One Vote” doctrine, that unnecessarily undermines both the goals of competition and community.

And if the goals of competition and community can be significantly better served by a small deviation in population among districts, legislatures should be willing to take a small risk and pursue those options, because they are consistent with what I believe should be the underlying goal of the redistricting process — competitive elections, strong democratic institutions, and maintenance of the sense of political community.

Making these judgment calls isn’t easy.  And, when it’s done right, no one is going to be 100 percent happy.  Lines have to be drawn somewhere, and inevitably, they will divide neighborhoods, separate communities, and provide some practical advantage to some candidates over others.  But the fact that no map can be drawn that satisfies everyone isn’t a license to fully embrace redistricting as a tool for political advantage.  Redistricting, frustrating as it is, is extraordinarily important.  It’s about ensuring that people are meaningfully represented in our compound constitutional republic, and it requires the very best good faith efforts of our representatives.

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Lessons in American Constitutional History, Post-1787: Volume 1 – Justice Robert H. Jackson

August 24, 2011 by 2 Comments
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This is the first in a somewhat random series of posts about constitutional insights provided by people other than the Founding Fathers.  For all the constitutional rhetoric we get out of Tea Party groups about the meaning and purpose of the Constitution, they, by and large, ignore everything that’s a part of our constitutional tradition post-1787, because it’s irrelevant in their mind to the holy grail of Constitutional interpretation: Original intent, . . . or original meaning, . . . or original understanding,  . . . or, to put it more inclusively and ambiguously, originalism.

I’m a believer in adherence to original meaning where it can be clearly ascertained against alternatives, but disagree with a number of my friends who discount America’s subsequent-to-the-Founding constitutional history. It’s sad that very sincere lovers of our Constitution often know very little about the men and women who have shaped the Constitution and our perception of it during the last 225 years.  It is, at the very least, unfortunate, because it prevents its disciples from being exposed to most of America’s constitutional tradition and some of the really important insights regarding what the Constitution is and what it does.

And so, with that disclaimer and without any further ado, I present Volume 1 in my new series, Lessons in American Constitutional History, Post-1787, where I introduce my founding constitutionalist friends to Justice Robert H. Jackson, a Roosevelt (gasp! — yes, that Roosevelt) appointee to the Supreme Court, one of the chief prosecutors at the Nuremberg War Crimes Tribunal, and the last person appointed to the United States Supreme Court who did not graduate from law school (emphasis in the quotations below is all mine):

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From West Virginia State Board of Education v. Barnett, a case involving a challenge to mandatory reading of the pledge of allegiance in public school:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Youngstown Sheet & Tube Co. v. Sawyer, a case involving President Truman’s seizure of steel mills when faced with the likelihood of a steel union’s strike during the Korean War — ironically pitting my favorite Supreme Court Justice against one of my very favorite Presidents):

The actual art of governing under out Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context.  While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.  It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.  Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.  We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1.  When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.  In these circumstances, and in these only, may he be said (for what it may be worth) to personify federal sovereignty.  If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power.  A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2.  When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.  Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility.  In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.

3.  When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.  Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.  Presidential claim to power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

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And finally, from United States v. Korematsu, a case where the Court was asked to evaluate the constitutionality of a military order interning Americans of Japanese ancestry at the outset of U.S. involvement in World War II:

In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence, courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.”  A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.

 

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Sixth Circuit Court of Appeals Upholds Obamacare: Sometimes an Intuition is Just an Intuition

June 30, 2011 by 3 Comments

Legal circles are buzzing with the news that a panel the Sixth Circuit Court of Appeals today upheld, 2-1, the constitutionality of Obamacare as a lawful exercise of Congress’ power to regulate interstate commerce.  The Sixth Circuit Court of Appeals’ ruling affirmed a similar ruling by the district court.

The lead opinion, written by Judge Martin, determined that Obamacare was a constitutional exercise of Congress’ legislative power pursuant to two separate Constitutional authorizations: (1) the commerce power, and (2) the taxing power.  The lone vote for reversal, Judge Graham — a district court judge sitting on the appellate panel — obviously determined that Obamacare exceeded Congress’ authority under both rationales.  The swing vote (and, consequently, the most significant opinion) was Judge Sutton, who determined that Obamacare was unconstitutional as an exercise of the Congress’ taxing power, but was a constitutional exercise of Congress’ power to regulate interstate commerce.

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