Offsite Post: ‘States Should Listen to Justice Thomas on Redistricting’

 

Louisiana isn’t the only State that has had to walk down a ditch full of horse manure lately just to get a federal congressional map approved – her sister South Carolina has also experienced those difficulties, though the outcome of her trial was better than Louisiana’s.  The federal Supreme Court’s decision Alexander vs South Carolina NAACP upheld the map drawn by the South Carolina Legislature, which is good, but the best part of the ruling – and thus most worthy of note by conservatives/revivalists in the States – is the concurrence by Justice Clarence Thomas.

The late Rush Limbaugh once said that if he had to have someone’s else brain, he would choose Justice Thomas’s.  Such a statement becomes very understandable as one watches him roast the federal Court’s flimsy gerrymandering jurisprudence one piece of illogic at a time.  And also like Mr Limbaugh, he can do so with a bit of humor at times.  One can picture a wry smile curling his lips as he writes ‘just enough’:

As these cases make clear, this Court’s jurisprudence puts States in a lose-lose situation. Taken together, our precedents stand for the rule that States must consider race just enough in drawing districts. And, what “just enough” means depends on a federal court’s answers to judicially un-answerable questions about the proper way to apply the State’s traditional districting principles, or about the groupwide preferences of racial minorities in the State. There is no density of minority voters that this Court’s ju-risprudence cannot turn into a constitutional controversy.

But let us put that aside and focus on the main points of his concurrence.  Right away he says what is obvious from a plain reading of the federal constitution:

Determining the proper shape of a district is a political question not suited to resolution by federal courts. The questions presented by districting claims are “ ‘nonjusticia-ble,’ or ‘political questions.’ ” Vieth v. Jubelirer, 541 U. S. 267, 277 (2004) (plurality opinion). We have explained that a question is nonjusticiable when there is “ ‘a lack of judi-cially discoverable and manageable standards for resolv-ing’ ” the issue or “ ‘a textually demonstrable constitutional commitment of the issue to a coordinate political depart-ment.’ ” Id., at 277–278 (quoting Baker v. Carr, 369 U. S. 186, 217 (1962)).

In Rucho v. Common Cause, 588 U. S. 684 (2019), we ap-plied those principles to conclude that partisan gerryman-dering claims are nonjusticiable. Partisan gerrymandering claims allege that a political map unduly favors one politi-cal party over another. We explained that partisan gerry-mandering claims therefore present questions about how to “apportion political power as a matter of fairness,” despite the fact that “[t]here are no legal standards discernible in the Constitution for making such judgments, let alone lim-ited and precise standards that are clear, manageable, and politically neutral.” Id., at 705, 707. We bolstered our con-clusion by reference to “the Framers’ decision to entrust dis-tricting to political entities” in the Elections Clause, Art. I, §4, cl. 1. Id., at 697, 701. Because courts “have no commis-sion to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority,” we held that partisan ger-rymandering claims are nonjusticiable. Id., at 721.

The same logic demonstrates that racial gerrymandering and vote dilution claims are also nonjusticiable. As with partisan gerrymandering claims, the racial gerrymander-ing and vote dilution claims in this case lack “judicially dis-coverable and manageable standards” for their resolution. Vieth, 541 U. S., at 277–278 (internal quotation marks omitted). And, they ask us to address an issue—congres-sional districting—that is textually committed to a coordi-nate political department, Congress. Id., at 277. As a re-sult, racial gerrymandering and vote dilution claims brought under the Fourteenth and Fifteenth Amendments are nonjusticiable.

He then elaborates on why courts are ill-suited to resolve redistricting controversies:

Racial gerrymandering claims ask courts to reverse- engineer the purposes behind a complex and often arbitrary legislative process. The standard developed under our prec-edents “require[s] the plaintiff to show that race was the ‘predominant factor motivating the legislature’s decision to place a significant number of voters within or without a par-ticular district.’ ” Ante, at 2 (quoting Miller, 515 U. S., at 916). In other words, “a plaintiff must prove that the legis-lature subordinated traditional race-neutral districting principles . . . to racial considerations.” Id., at 916. The Court’s focus on legislative purpose is unavoidable because “the constitutional violation in racial gerrymandering cases stems from the racial purpose of state action,” not the re-sulting map. Bethune-Hill v. Virginia State Bd. of Elec-tions, 580 U. S. 178, 189 (2017) (internal quotation marks omitted).

Divining legislative purpose is a dubious undertaking in the best of circumstances, but the task is all but impossible in gerrymandering cases. “Electoral districting is a most difficult subject for legislatures,” a pure “exercise [of] the political judgment necessary to balance competing inter-ests.” Miller, 515 U. S., at 915. We have therefore cau-tioned courts to “be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus.” Id., at 915–916.

It is those same legislative branches, State and federal, to which the federal constitution has granted oversight of redistricting, not the judiciary:

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The rest is at https://thehayride.com/2024/06/garlington-states-should-listen-to-justice-thomas-on-redistricting/.

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Holy Ælfred the Great, King of England, South Patron, pray for us sinners at the Souð, unworthy though we are!

Anathema to the Union!