U.S. Supreme Court Justice Samuel Alito and a three-judge panel of the Middle District of Pennsylvania both ruled earlier this week that the new congressional district map drawn by the Democrat-controlled Pennsylvania Supreme Court could remain in effect. This is the most recent story from an underreported crisis of democracy occurring right now in our country.
Democrats and their liberal allies, not satisfied with their results at the ballot box and in the legislatures, have turned to the courts to enact their radical agenda by fiat, without the input of the people as intended in our system of constitutional government.
This is an old story, but currently there is a concerted push for the courts to decide an inherently political issue that determines the structure underlying that ballot box: where district lines are drawn.
Commonly called redistricting (when done in a way you like) or gerrymandering (when done in a way you dislike), states have established procedures whereby the state legislature or a special redistricting commission determines the districts for federal congressional and state legislative races after each decennial census. This has an enormous practical impact on elections, as it not only divides voters into constituencies but also decides which candidates may represent which group of voters.
Redistricting is, at best, a confusing area of law. The guidelines provided in past Supreme Court cases are vague and applied inconsistently by the courts. And the reasons for this are obvious. Unlike traditional “law,” which involves applying static statutes, case law, and regulations to a specific fact pattern, redistricting is an inherently political act. It is difficult for courts to assess the political judgments of a state legislature or commission and provide clear guidelines for adjudicating future political decisions.
That is why the “political question” doctrine exists. Courts will refuse to make decisions on inherently political questions, recognizing that the political process is the correct place to resolve political disputes. Courts simply are not equipped to decide political questions. For years, redistricting was considered a political question. Yet, in the past thirty years, redistricting cases and court decisions have become common.
In this term alone, the Supreme Court is considering two partisan redistricting cases, Gill v. Whitford, argued in October, and Benisek v. Lamone, scheduled for oral argument at the end of this month, and a racial redistricting case, Abbott v. Perez, scheduled for oral argument in April.
Pennsylvania provides the best example of just how inappropriate it is for courts to make these political judgments.
The Pennsylvania Supreme Court is an elected court with partisan-affiliated justices. After Democrats gained a majority on the court in 2015, liberal organizations seized the opportunity to undo the congressional map enacted by the Republican-controlled legislature in 2011, based on the 2010 census. They sued on the basis of the state constitution, hoping to prevent any hope of appeal to the U.S. Supreme Court, as the court of last resort in each state has the final say in interpreting state law.
The Democrat-controlled Pennsylvania Supreme Court was only too happy to assist the liberal organizations in their efforts two years before the next census to throw out the map enacted by the people’s representatives seven years ago. As the state legislative leaders, in a brief filed with the U.S. Supreme Court, said: “The Pennsylvania Supreme Court conspicuously seized the redistricting process and prevented any meaningful ability for the legislature to enact a remedial map to ensure a court drawn map.”
On January 22, it issued an order striking down the map for unspecified violations of the state constitution and requiring the state legislature to draw, pass, and have the Democratic governor approve a new map by February 9. The Supreme Court did not issue any guidance on what requirements the new map must meet or what provisions of the Pennsylvania Constitution the old map violated until February 7, just two days before the deadline. The February 7 opinion revealed that the court’s decision rested in part on legal theories like the “efficiency gap” that did not even exist when the map was enacted in 2011.
Unsurprisingly, the Democratic governor was not willing to approve the legislature’s map. After the deadline, the Republican-controlled legislature’s leadership submitted its map, the Democratic governor submitted a map, and independent organizations submitted potential maps as well.
The court was not interested in any of these maps. Instead, it had hired an outside expert, Stanford Law Professor Nathan Persily back on January 26, with the clear intent that only the court’s hand-picked expert would draw the map. The court would not even consider the map submitted by the Democratic governor. But in news that shocked no one, the new map favors the Democrats.
Putting the merits of Professor Persily’s map aside, the simple fact is that the Pennsylvania Supreme Court has purposely taken the decision over congressional districts away from the people’s representatives and given it, not even to the elected justices of the Pennsylvania Supreme Court, but to an unelected, unaccountable individual who is not even a resident of Pennsylvania.
And that brings us back to the beginning. We are in a crisis of democracy over political control. Ultimate political power and accountability ultimately resides with the people, who exercise control through their elected representatives. Yet some courts, when presented with the opportunity from liberal activists’ lawsuits to undo and ignore the will of the people, jump at the chance to turn over political power to unelected, unaccountable experts.
We have a government of the people, by the people, and for the people. But if liberals have their way, we will have a government of the experts, by the experts and for the experts. The people will be left behind.
What is happening in Pennsylvania is just their latest and most egregious victory.
Michael Thielen is the executive director of the Republican National Lawyers Association.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.