Von Spakovsky: Judiciary Too Unaccountable to Rule Over Redistricting

The battle over redrawn legislative districts rages on. The ‘Special Master’ appointed by a three-judge panel is expected to make his final presentation to the federal court in Greensboro by the end of this week, after preliminary drafts naturally earned praise from Democrats and indignation from Republicans.

Lost in the partisan back and forth about racial quotas and double-bunking incumbents is the inherently political nature of redistricting (by design), and due consideration of just how involved the judiciary should be in drawing such legislative maps.

Hans von Spakovsky described the dangerous precedents set by courts getting too involved in redistricting, using legal battles over the issue in Wisconsin as a case study – one that parallels the current battle over district lines in North Carolina.

Von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative.

His legal mind is top-notch and applying it to the redistricting issue leads him to the conclusion that the judiciary should not have a role in redistricting because they lack accountability, as he lays out in a piece in the Milwaukee Sentinel:

“There aren’t many issues the Supreme Court has managed to sidestep, but political gerrymandering is one of them. Until now.

The court recently heard oral arguments in Gill v. Whitford, a Wisconsin case that involves how voting district lines are drawn—an issue Justice Felix Frankfurter called a “political thicket” that the courts should avoid.

We should not transfer authority for drawing political boundaries to unaccountable federal judges who, unlike legislators, can’t be voted out if we don’t like what they did.

In Gill, a lower federal court threw out the state legislature’s redistricting plan from 2011, claiming that it was an unconstitutional gerrymander because the number of seats held by the Democratic Party didn’t match the party’s share of the statewide vote.”

This is precisely why the constitutions of the United States and North Carolina delegate such authorities to the legislature. The representative branch of government is, by far, the most accountable because voters get to weigh in on their performance and policy regularly.

Of course, Democrats will cry foul any time Republican leadership in the North Carolina General Assembly pushes back against judicial rulings that usurp these powers. That’s because Democrats quest for an ‘Independent Judiciary’ is merely a marketable euphemism for a court system that favors Leftist political success over Conservative ones.

Von Spakovsky’s analysis of Wisconsin’s redistricting legal battles is exceedingly relevant to the eastern front of that war in the Old North State.

“Lawmakers in the Republican-controlled legislature had done exactly what Democrats would have done if they were in the majority: They drew districts favoring their own party.

They followed all the redistricting criteria required by Wisconsin, including ensuring that districts are contiguous, as compact as possible, and respecting the boundary lines of political subdivisions as much as possible.


…under the Voting Rights Act, states cannot use race as the predominant factor in redistricting. But they are forced to use race as a factor to meet the requirements of the Voting Rights Act to create protected districts for minority voters.

The legal standard on how much race can or must be used is confusing and so amorphous that the federal courts have been flooded with lawsuits challenging redistricting plans.”

That’s why Republican majorities in North Carolina banned race from consideration after their 2011 legislative maps were faulted for what the court perceived as racial gerrymandering. It removed the most contentious criterion from the process, but the courts are now intent upon reintroducing that element as a focus of the Special Master’s redrawing efforts.

“In May in Cooper v. Harris, a North Carolina redistricting case, dissenting Justice Samuel Alito warned the court against transforming the federal courts “into weapons of political warfare” that “invite the losers in the redistricting process to seek to obtain in court what they could not achieve in the political arena.”

It is easy to imagine that, if the scenario were reversed and Republicans were undoing legislative districts via judicial activism, Democrats would be losing their voices as they screamed about overreaching courts. And they would be right to do so. Republicans lived under Democrat drawn maps in North Carolina for decades that were drawn with partisan advantage at the front of their mind.

Now that the table is turned, Democrats are seeking to invalidate duly elected Republican majorities by doing what they do best – yelling ‘Racists!’ and waiting for favorable coverage from the mainstream media and conflicted jurists.

Read more of Von Spakovsky’s analysis here.

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