This week Mark Walker, a federal judge in Florida, called out the Supreme Court in no uncertain terms. The judge was considering Governor Scott's arguments that he has no obligation to extend voting registration because of Hurricane Matthew. The specifics of the case are not important (although the judge's characterization of Scott's position as "poppycock" is worth reading). What's really important is that Judge Walker described "a fundamental right to vote" and applied "strict scrutiny" to Scott's arguments.
To understand why this was such a radical step one has to understand that there is a gaping hole in the constellation of rights that are guaranteed under our Constitution: there is no guarantee of a right to vote. There are rights that surround voting: the XVth Amendment says no one may be denied the vote on the basis of race. The Supreme Court has ruled that federal districts must be equal in the populations they contain. And under Article I, §4 Congress has authority to intervene if States draw districts improperly. For example, it is due to an act of Congress that we have single-member winner-take-all districts. (Please note: Congress could get rid of gerrymandering tomorrow--they choose not to do so.) But none of these things gets to what Judge Walker was saying: that voting, in and of itself and without questions of race or inequal treatment, is fundamental to the American system of democratic rights.
It's not that no one has thought of this before. Walker quotes an earlier case called Wesberry v. Sanders: "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." In 1986, in Davis v. Bandemer, the Court ruled that judges have the authority to intervene to correct excessive political manipulation of electoral districts. But 1986 which was a very different era. The attitude of the Court in the modern era is best captured by the late Justice Scalia in a 2004 opinion, Vieth v. Jubilirer. Scalia, writing for a 5-4 majority, overruled Bandemer and concluded that political gerrymandering raises no "judicially enforceable" constitutional issues at all.
Scalia's ruling in Vieth is of a piece with the analysis in Citizens United that relied on the proposition that there is no important public interest in preserving confidence in democratic institutions. The absolutely intended result is that the ability to use money to try to influence an election is a fundamental right, but the opportunity for individual voters to actually participate in the same election is not.
The political manipulations of districts, particularly following the 2010 mid-terms, has been blamed for increasing polarization and extremism in our politics because contestants in safe districts position themselves to win primaries, the only contest that actually counts. But that is the least of it. To really see how this plays out in practice, one should look at a brief that was filed by a group of Virginia Republican congressmen in 2015.
A federal court had found that Virginia's districts were drawn in a way that resulted in racial discrimination, so new districts were needed. Competing plans were proposed, including one by the Republican incumbents (appearing as "intervenor-defendants"). They argued that according to Supreme Court precedent a federal court reviewing districts should "not pre-empt the legislative task nor intrude on state policy any more than necessary." In this case the state policy in question was to preserve the Republican majority that emerged from the 2010 midterms against any future electoral outcome.
This is not a conspiracy theory or an accusation, this was precisely the claim asserted in the brief. The core purpose of the original district design was "to maintain the 8 Republican to 3 Democrat ratio established in 2010". "[T]he district design was described not as a racial gerrymander, but as a political gerrymander that created a 8-3 partisan division in favor of Republicans." The legislature was pursuing the "inarguabl[e] political goals of implementing an 8/3 incumbency protection plan."
By this analysis, squarely based on Supreme Court precedents, the court was obliged to ensure that in remedying the racially discriminatory aspects of the plan it did not upset the political gerrymander. To be fair (if "fair" is the word I want) the GOP had good reason to fear that without pretty extreme gerrymandering future elections were likely to produce different outcomes. Consider the results of state-wide Virginia elections. Both US Senators are Democrats (elected in 2009 and 2013). The governor is a Democrat (elected in 2014). In both 2008 and 2012 the state went for Obama. Yet the congressional delegation reflects a carefully maintained 8-3 Republican majority that was created in the Republican wave of 2010.
Gerrymandering is just the one example. In Florida, Governor Scott's refusal to extend registration was quite obviously aimed at depressing turnout among populations likely to vote Democratic; in fact, his defense of his decision was that it was just "politics." That's the proposition that Judge Walker called "poppycock", the idea that there were no issues of rights involved here only politics as usual.
Yet there is no question that Governor Scott's position is consistent with the rulings of the Supreme Court. Voter suppression, class-based or geography-based obstacles to voting, and even the most extreme district gerrymandering do not violate any constitutional rights unless race is involved. Because according to our Supreme Court there is no constitutional right to vote. Judge Walker has called out the Supreme Court. Now, or after the election, or once a ninth justice is confirmed--at some point SCOTUS needs to respond to this challenge and assert that the ability to manipulate elections does not outweigh the right to have elections in the first place.