Fifty-five years ago, Justice Frankfurter, in Baker v. Carr, urged the Court not to enter into the “political thicket” of redistricting litigation. The Supreme Court’s decision in Cooper v. Harris takes the court beyond the thicket and into the woods. And these woods are particularly deep and dark and confusing, even for experts…While ideological disagreements are commonplace on the Court, the liberal wing of the Supreme Court’s complete disregard for precedent regarding redistricting caused Justice Samuel Alito to write in dissent: “A precedent of this Court should not be treated like a disposable household item—say, a paper plate or napkin—to be used once and then tossed in the trash. But that is what the Court does today in its decision regarding North Carolina’s 12th Congressional District: The Court junks a rule adopted in a prior, remarkably similar challenge to this very same congressional district.”. . .
Put more charitably, the Harris opinion on one level is an attempt to balance the equal protection requirements of the Fourteenth Amendment and the intent of the Voting Rights Act (VRA) to allow minorities to elect candidates of their choice. But Cooper v. Harris ultimately decides that even if a legislature has redistricted based on partisan lines (as is common) and established majority-minority districts in conformity with the Voting Rights Act, a court can ignore all the evidence of that permissible strategy if it feels like it and decide that the redistricting plan was impermissibly based on race.
This is a difficult balance to strike and opens the door to endless litigation. More practically this lack of bright lines takes power to create legislative districts away from the people’s locally elected officials and gives it to judges appointed by national outsiders such as President Trump and Obama. As Justice Alito said, “But if a courtmistakes a political gerrymander for a racial gerrymander, it illegitimately invades a traditional domain of state authority, usurping the role of a State’s elected representatives. This does violence to both the proper role of the Judiciary and the powers reserved to the States under the Constitution.” . . . While all of this is great for lawyers — they’ve just been handed what amounts to a “Full Employment Act” and can count on a lot of work in the coming years — it’s very bad for democracy and the rule of law.
There is a strong political motive behind this decision. Faced with Republican dominance at the legislative level (Republicans control at least 32 state legislatures), Democrats believe they will have a chance to fare better in court than at the hands of Republican legislators, some of who may be motivated by the egregious Democratic gerrymanders of the 80’s and 90’s. Democrats hope that an Obama-appointment heavy judiciary will give them more favorable districts. The political reality is that endless litigation is upon us. . . .It should also be pointed out that this 5-3 decision did not yet include Justice Gorsuch since he was not a member of the Court at the time the arguments were heard. To read John Ryder’s full article, please visit the Daily Caller here. Future weekly Daily Caller op-eds penned by RNLA Leaders will be highlighted right here--be sure to visit for a great summary and why it is important to our members and followers.