'the Constitution does not require proportional representation'

While a surprising number of cases decided in the current Supreme Court term have seen justices crossing party or ideological lines, the decision announced today in the case of Rucho v. Common Cause saw a more typical partisan split. Plaintiffs, including both Democrats and Republicans, wanted the Court to curtail the practice of so-called partisan gerrymandering by state legislatures, through which partisan majorities redraw districts with the idea of ensuring maximum representation for their own party. The Republican-appointed majority of justices, led by Chief Justice Roberts, decided that they have no authority to intervene, since gerrymandering does not violate the "one person, one vote" principle that justifies other forms of judicial intervention. In a summary of his opinion, Roberts makes the significant observation that "one person, one vote" is not synonymous with proportional representation, the implicit standard of fairness allegedly violated by gerrymandering. He states bluntly that "the Constitution does not require proportional representation." While "each person is entitled to an equal say in the election of representatives," it "hardly follows from that principle that a person is entitled to have his political party achieve representation commensurate to its share of statewide support." In short, political parties are not entitled to proportionate representation. That fact should be self-evident from the territorial principle of representation, since partisanship is unevenly distributed geographically. Roberts is careful to deny that he or the majority "condones" partisan gerrymandering, but observes that the remedy lies elsewhere than in the Court. As some instant critics of the ruling have observed, it really reinforces the necessity of defeating parties that abuse their power through gerrymandering at the polls, or thwarting them by amending state constitutions.

In dissent, Justice Kagan expresses impatience with the majority. If they concede that "gerrymandering is 'incompatible with democratic principles,'" Kagan assumes a self-evident duty of the Court to respond. She roots that obligation in the equal-protection clause of the Fourteenth Amendment, which is violated by "the devaluation of one citizen's vote as compared to others." She points out that federal courts have intervened against partisan gerrymandering at the state level without appealing to the proportionate-representation principle, rendering Roberts' objection to that irrelevant. Instead, Kagan claims, these courts hold states to their own constitutional standards as well as the nation's. Alas, one must presume that the high court overrules the lower courts. The ultimate problem, it seems, is whether the equal-protection argument can be separated from what Roberts perceives, and rejects, as an entitlement claim by political parties in place of people.  The Chief Justice sees no essential rights violation when one's party isn't represented in a legislature in the proportion to which partisans may believe it entitled. This perception misses what Kagan takes to be the real issue: partisan gerrymandering is partisan politicians "entrenching themselves in power by diluting the votes of their rivals' supporters." In short, partisan gerrymandering is cheating. But Roberts presumably ignored rather than missed this point, since he doesn't see partisan cheating as an actionable violation of individual rights. It's not surprising that the minority sees the majority opinion as undemocratic, since it appears to acquiesce in a practice widely seen as tantamount to the sort of vote-rigging that alleged authoritarians practice around the world. To be fair to the minority, I can well imagine some of those supposed authoritarians -- those that actually rig elections, as the reputed authoritarian Erdogan apparently neglected to do in Istanbul last week -- echoing the inference that an individual's voting rights are not harmed no matter how badly the rules screw over his party. Unfortunately, democracy at the macro level is diluted by every division of power along geographic lines. The Electoral College arguably violates the equal-protection principle advanced by Kagan more egregiously than any state's gerrymandering, yet it is the supreme law of the land. Roberts may be a killjoy when he points out what the Court can't do about such things, but despite Kagan's disparagement, he did point to alternate remedies. A real test of our democracy may come should partisan gerrymandering or other forms of election-rigging prove capable of thwarting those remedies, but then it will be the people's responsibility, not the courts', to respond.

ei