Testing an Independent Judiciary

The Supreme Court abandons one person, one vote rule.

Two factors determine the vitality of a democracy: equal representation in governing institutions and an independent judiciary. The concept of a body of peers to interpret the application of law originated in Greece. Basically, the concept of an independent judiciary stated that in a democracy, the demos or people ultimately determine their fate — not a monarch nor an oligarch.

From a logical perspective both factors form a trust in the purpose and legitimacy of governing one’s affairs. Power or agency is surrendered to an elected representative in a ‘representative democracy’ — trust, one. Compliance with and protection by governing laws is adjudicated by a group of peers — trust, two.

The importance of an independent judiciary is trust in the process of reviewing the law, of interpreting, applying and upholding the law for the benefit of the people.

In the nineteen sixties the Supreme Court of the United States ruled on a number of election and voting-related cases. One voice for the majority in ruling on these cases was Chief Justice Earl Warren, appointed by Dwight Eisenhower, and a former Republican Governor of California. (1)

Warren saw in post-World War II America the emergence of an urban populace which rendered the traditional districting of representation unequally, giving an advantage to rural voters and depriving urban voters of coequal governing. Warren also saw emerging a communication industry which reached into every American household. He foresaw that both trends could work against the precepts of democracy and look like ‘democracy’ was increasing,’ when in reality ‘democracy’ was shrinking.’

States were not just growing in size; voting districts within states were changing. The simplicity of ‘equal representation’ regardless of where one lived was being challenged.

In the cases brought up to the Supreme Court, the Constitution’s equal rights’ clauses were being tested by districting and certifying decisions. Warren asked governing bodies, legislators and law makers, to ‘make an effort’ to ensure every voter had an equal vote, that one’s vote did not count more than another’s. (2)

Countering Warren’s interpretation was a predominantly white, rural, conservative populace who felt their access to services and privilege was being sapped by the emerging urban groups, portrayed as classes of immigrants and first-generation citizens. Xenophobia intensified throughout rural America. Criticism of the “Warren Court,” focused on a return to ‘American values,’ the sanctity of ‘small town communities,’ what these critics felt was being threatened by the federal government. It was not hard to see that also involved was a silent fury that Warren had assembled a majority in Brown vs. Board of Education ending racial segregation in public schools.

On Tuesday, October 4, when the Supreme Court convenes, America will attend the court’s decision in a case which will signify a departure from the ‘one person, one vote rule.’

The justices will hear a Republican-backed appeal in a case from North Carolina that could give state legislatures far more power over federal elections by limiting the ability of state courts to review their actions. North Carolina’s top court threw out a map approved by the Republican-controlled state legislature delineating the state’s 14 U.S. House districts. That court determined that the districts were drawn impermissibly in a manner that boosted electoral chances of Republicans at the expense of Democrats. The Republican lawmakers in the case are invoking a contentious legal theory called the “independent state legislature doctrine” that holds that the Constitution gives legislatures, not state courts or other entities, authority over election rules including the drawing of electoral districts. An argument date is pending. (3)

The North Carolina case (4) takes on how states decide election outcomes. Being tested is the question which body ultimately determines the outcome of federal election results, the state courts or the state legislatures. When election outcomes had occurred in the past, the state Supreme Court would adjudicate. The plaintiff in the North Carolina case is asking the decision to be taken away from the court and placed before the state lawmakers.

The Supreme Court in the sixties understood this consequence of voter representation inequality and so applied the ‘one person, one vote rule’ to guide state legislatures in drawing voting districts. The ‘rule’ states that state legislatures should ‘make every effort’ to draw districts of equal size — hence, one person, one vote — such that a vote in one district doesn’t count disproportionately with a vote in another.

A ruling in favor of the plaintiff in the North Carolina case would return the equality of representation to pre-sixties’ decisions and tilt the distribution of representation in favor of rural and suburban districts, not to speak of “gerrymandered” districts.

From a political view, the North Carolina case has little to do with gerrymandering and lots to do with voting rights. There is a misinterpretation of gerrymandering that once the current political party, whose districting gives the party an advantage, is voted out, the opposing party will re-district in their favor. And so, on ad nauseum.

The political purpose behind gerrymandering is to ‘hold onto power:’ redrawing voting districts in one’s favor is one method. Once employed, the only alternative to dismantle this methodology is by direct petition. (5)

The impending SCOTUS deliberation in North Carolina could not come at a worse time for America’s ‘experiment.’ Blocked in Congress are two major bills which will be seen anew once the North Carolina decision goes public — the Voting Rights Act and the Electoral College Act (6). The SCOTUS decision’s interpretation will weigh heavily on how and in what form these bills proceed.

And when the Court convenes America will be less than thirty days before Election Day when many bills such as these at both State and Federal levels will be tested at the voting booth.

To fully grasp the urgency of this moment politically, consider that John Eastman, Steven Miller and Trump lawyers, a consortium of election deniers, have filed an amicus brief in the North Carolina case. (cite)

September 29, updated October 1

Notes

1-https://www.thoughtco.com/the-warren-court-4706521

2- Following Warren’s plea, many state legislatures appointed commissioners to look at districts through the lens of proportionality and not to accept that districts’ borderlines could be shifted to retain an imbalance in the favor of the existing apportion. Demographic movement should be a factor, otherwise, inequality would surface.

3- “Factbox: U.S. Supreme Court to tackle a raft of new cases,” September 30.
https://www.reuters.com/legal/us-supreme-court-tackle-raft-new-cases-2022-09-30/

4- I have selected the North Carolina case for it targets the one vote, one person rule. However. North Carolina is not the only districting case being heard on appeal by the Supreme Court this coming term:

The justices next Tuesday are set to hear arguments in an Alabama case that threatens to cripple a landmark civil rights law — the Voting Rights Act, which bars racial discrimination in voting. Alabama is appealing a lower court’s ruling invalidating a map approved by the state’s Republican-controlled legislature drawing the boundaries of the state’s seven U.S. House of Representatives districts. The lower court found that this map diluted the electoral clout of Black voters in violation of the Voting Rights Act. The map concentrated Black voting power in the state into a single district even though Alabama’s population is 27% Black. Reuters, ibid.

5-Since the 2020 census, Michigan, among several states, has been successful in petitioning for an independent district-drawing commission. The efforts and outcomes of the commission’s districting work has been the source of multiple court cases brought by the Republican legislature. All cases have failed in court.

6-In the House version of the Electoral College Act, there is a proviso preventing state legislatures from overruling courts in deciding contested state electors. (cite)

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Rodney Clough

Rodney Clough

Refuses to nap. Septuagenarian. Cliche’ raker. Writes weekly.