The Counterdemocratic Difficulty
By 
I have a piece putting Kennedy’s refusal to do anything about even the most egregious partisan gerrymandering in the context of the Republican war on voting rights, which the Republicans on the Supreme Court has enthusiastically joined:
The Supreme Court had the opportunity on Monday to address the constitutionality of partisan gerrymandering. Instead, it decided not to decide. In cases involving gerrymandering in Wisconsin and Maryland, it declined to reach a decision on the merits, in the former instance returning the case to the lower courts and in the latter upholding a lower court decision that held Maryland’s congressional map unconstitutional. As a result, some egregiously gerrymandered maps will remain in place for the 2018 midterms.
This reflects an unfortunate pattern: Desperate Republicans trying to keep people away from the ballot box to stay in power, and the Supreme Court collaborating in these efforts.
As Richard Hasen of the U.C. Irvine Law School explains, the Supreme Court’s decision to punt on Wisconsin’s gerrymander comes down to one man: Anthony Kennedy. The Supreme Court justice is unwilling to join his conservative colleagues and hold that gerrymandering is a “political question” that cannot be resolved by the courts. But he is also unwilling to join the Court’s liberal wing and create a rule to evaluate the constitutionality of partisan filibusters. And so the issue remains unresolved.
This is a deeply regrettable outcome. Wisconsin’s gerrymander is extreme — in 2012, for example, Democrats got 51.4 percent of the vote but received only 39 of 99 seats in the state legislature. But the 2018 elections will be fought with the map in place, and the Supreme Court continues to refuse to address the question because of Kennedy’s indecision. As Justice Elena Kagan pointed out in her concurrence, while partisan gerrymandering goes back to the earliest day of the republic, computer technology has made the problem much more dire. Democrats could win the popular vote in the upcoming midterms by 6 or 7 points and still not gain control of the House — an outcome that is obviously unacceptable in a democracy. The Supreme Court had a chance to act and failed to.
And yet it could be worse. In other decisions related to voting rights, Kennedy has simply joined his Republican colleagues to undermine them.
Last week, the Supreme Court issued a ruling, Husted v. A. Philip Randolph Institute, that upheld Ohio’s draconian voter purge law. The Ohio law presented a potential conflict with the National Voter Registration Act, which makes it illegal to use a failure to vote as a reason to remove voters from the rolls. As Justice Breyer noted in his dissent, the Ohio law — which wipes a voter off the books if she fails to respond to a mailed warning about inactivity — effectively reads this prohibition out of the law. And as Justice Sotomayor noted in her own dissent, the Ohio law ignored the core purpose of the NVRA — to prevent the disenfranchisement of minority and low-income voters — and indeed strengthened a law that will disproportionately suppress such voters. But Kennedy joined his fellow Republicans to uphold it.
And Kennedy has joined an even more egregious attack on voting rights. In the 2013 case Shelby County v. Holder, the Supreme Court cut out the heart of the Voting Rights Act, the most important civil rights statute passed since Reconstruction. Congress, under authority explicitly granted by the 15th Amendment, required jurisdictions with a history of discrimination to pre-clear any changes to their voting laws with the Department of Justice. Roberts struck down the coverage formula enacted by Congress, under the theory that racism is no longer the pressing issue it was in 1965. As Justice Ginsburg pointed out in her unanswerable dissent, “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
And Roberts’ contention that voter discrimination is no longer a serious issue has proven to be laughably false. Several states enacted vote suppression laws in the immediate wake of Shelby County. One passed in North Carolina, for instance, was found by a federal judge to have “target[ed] African Americans with almost surgical precision.” Now North Carolina is trying to resurrect part of the law that was struck down by a lower federal court, eliminating the last day of Saturday voting, which has been used disproportionately by African Americans. Note that there isn’t even the pretext that such a change is necessary to prevent voter fraud; making it harder for African Americans to vote is the sole purpose of the change.
The Hasen article is really good about Kennedy’s Hamlet routine. Joseph Fishkin has more. Anyway, this will all be over soon; either the median vote of the Court will either be a completely unapologetic and shameless neoconfederate or a liberal. So things could get much better, although they’re more likely to get much worse.