“A Shadow Across Our Democracy”

Charles Fried for the HLR Blog:


There is a clear constitutional warrant. As long ago as 1986, the Court recognized that partisan gerrymanders manifestly offend the Fourteenth Amendment’s constitutional guarantee of equal protection. They are also contrary to the First Amendment’s guarantee of freedom of association, as Justice Kennedy argued in Vieth and Justice Kagan, writing for four Justices, recently elaborated in Gill. Yet Since 1986 no Court majority has been willing to join the radical view that this was an issue forever and in principle beyond the reach of the judiciary. Over and over again, it has been a case of—in the words of St. Augustine—Lord, make me pure, but not yet. Four Justices have been willing to pull the trigger on this outrage, but Justice Kennedy has publicly agonized that a sufficiently clear metric has not yet been found.

The Supreme Court Term just ended brought to the Court two cases, one from Wisconsin and one from North Carolina, with facts so egregious and lower court findings of fact so irrefutable that many hoped that finally the time had come: Justice Kennedy could no longer withhold his fifth vote—and maybe a sixth, maybe even a seventh Justice would follow. Though it is impossible to say just how many hairs a man may sport on his head and still count as bald, surely the smooth, shiny pate must announce a clear case if the word is to have any meaning—and we all understand it does. Wisconsin and North Carolina are surely as bald-faced examples of naked partisan gerrymanders as we will ever see. And given the capabilities of recent algorithms and data-mining techniques, Wisconsin and North Carolina are likely to become the norm.

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