Rigging Elections is A-okay
As long as you give the right reason
The Supreme Court has issued another carefully considered, intellectual decision upholding the law and Constitutional principles.
Haha, yeah right.
Yet again, the Court’s majority, ruling strictly on ideological lines, has decided that voting is not really a fundamental right. Or more accurately, the Court simply thinks the value of an individual’s vote is immaterial — for some people at least. But even if it is important to maintain the illusion that votes matter, such a feat requires an intelligence simply unavailable to humans. After all, these justices are the smartest people alive. So, if they cannot generate a fair, wise solution to a stubborn problem, certainly no one else can.
Before the court was the issue of gerrymandering — the artificial creation of voting districts to maximize some desired result — specifically, how to decide when it is conducted based on illegal motivations. Legislatures typically engage in gerrymandering when they cannot win popular votes. Okay, technically they do it after the completion of a new census (every ten years) to ensure that representative districts contain roughly equal populations. But both parties use it to manipulate the vote in their favor, though lately it has become the weapon of the Republican party far more frequently to reduce the voting power of oppositional electorates.
The untoward version of gerrymandering redraws voting districts to achieve one of two possibilities. One is to split up areas that lean heavily toward one party to reduce the chances of that party winning. The other is to divide areas in such a way that large numbers of like-minded voters end up in a single district, thereby limiting their influence in Congress by giving that large group only one (or a few) representatives while giving small populations a relatively equal or larger number. In the latter case, the effect tends to be that small, politically derivative populations receive a substantially greater per capita representation in Congress than very big populations. Regardless of which party does it, the process is routinely unethical and always undemocratic. There are plenty of arguments for how to provide fairer representation even while employing some version of gerrymandering, but they are too complex for retelling here.
Whatever one thinks about the rationality behind or fairness of gerrymandering, there are some motivations that all should agree are malevolent and, thus, illegal. Alas, in 2024, nothing in America is as it should be. The recent case on gerrymandering was South Carolina State Conference of NAACP v. Alexander. In short, plaintiffs complained that “the challenged districts were adopted with racially discriminatory intent” in violation of the law.
At the district level, the court’s conclusion was unequivocal:
The Court finds that race was the predominant factor motivating the General Assembly’s adoption of Congressional District №1. With the movement of over 30,000 African American residents of Charleston County out of Congressional District №1 to meet the African American population target of 17%, Plaintiffs’ right to be free from an unlawful racial gerrymander under the Equal Protection Clause of the Fourteenth Amendment has been violated. Defendants have made no showing that they had a compelling state interest in the use of race in the design of Congressional District №1 and thus cannot survive a strict scrutiny review.
It came to the same effective result for District 6. Lest one argue some bias in this court, it found that the plaintiffs proved a racial motive in redrawing only two of the three districts challenged. Moreover, the court’s decision was unanimous.
The Supreme Court took to reviewing the lower court’s findings related to those two districts, number 1 and 6. It found that the lower court decision “was clearly erroneous.” But just in the summary of its holding, the majority’s disingenuousness was on display. In the first paragraph it noted that its opinion did not consider the respondents’ attack on the “factual basis” of the district court’s decision. But then the majority asserted that the district court’s decision exhibited “clear error,” a factual issue. Strange. Clear error suggests that the decision of the court “cannot be true” based on the facts presented, that it “crosses into the realm of the unbelievable.”
Insurrectionist-sympathizer Sam Alito penned the majority opinion of the Supreme Court. To start, he wrote as if we should accept it as true that a “legislature may pursue partisan ends when it engages in redistricting.” In other words, in view of the majority of this Court, reducing the value of people’s vote is ok as long as doing so is for the purpose of propping up one political party or another. It becomes unconstitutional, he continued, if the “legislature gives race a predominant role in redistricting decisions.” To set the course for the remainder of the Court’s interpretive jiggery-pokery, he announced the following rule:
[A] party challenging a map’s constitutionality must disentangle race and politics if it wishes to prove that the legislature was motivated by race as opposed to partisanship.
One need not read the remainder of either the district or SCOTUS decision to see where this will go. Under this rule, gerrymanderers will always claim they are engaging in self-interested partisan politics. Indeed, that was precisely the argument by the gerrymanderers in the case at hand. And why wouldn’t they claim that? Even if there is a racial animus or motive behind the way in which they go about redrawing, it will always be driven by the desire to win and hold power. The animus derives from the fact that the minority group does not like them and will not vote for them. Thus, the notion that the two are somehow extricable is patently absurd. Worse, the idea that either is ok as long as they run in parallel — partisanship and racism — is reprehensible.
But for this Supreme Court, “states’ rights” take priority over all else, including civil rights. For that reason, Alito made sure to announce that “federal-court review of districting legislation represents a serious intrusion on the most vital of local functions” [emphasis added].
He then went on to list the various criteria necessary to prove a true racial motive behind a redistricting. Spoiler alert: proving them are near impossible. For example, while he mentioned the idea that “circumstantial” evidence could serve as sufficient proof, he all but waived it off by warning that producing compelling evidence of this kind will be “especially difficult.” Instead, Alito seems sure that if a racial motive exists, plaintiffs will find it in the form of direct evidence. Examples he provided are when lawmakers drop the “n” word in redistricting discussions, or when they instruct the map-makers to put all the “black voters” in one place. Okay, he didn’t write it exactly that way, but that quite accurately relays his point. Alito actually wrote:
Direct evidence can also be smoked out over the course of litigation… we offered the hypothetical example of a plaintiff finding “scores of leaked e-mails from state officials instructing their mapmaker to pack as many black voters as possible into a district.”
Absent such smoking gun emails, Alito pondered how one could ever find an unconstitutional purpose behind redistricting because, after all, “there is a high correlation between race and partisan preference.” And upon accepting that premise, “When partisanship and race correlate, it naturally follows that a map that has been gerrymandered to achieve a partisan end can look very similar to a racially gerrymandered map.” This means that as long as plaintiffs forward even the feeblest partisan defense of a racially gerrymandered district, this majority will find that A-OK.
Alito’s deductive chicanery did not satisfy insurrectionist-husband Clarence Thomas, however. Curiously, Thomas found the majority’s review under the clear-error standard as excessive, noting it should not have “sift[ed] through volumes of facts” and “argue its interpretation of those facts.” Like a broken clock stuck at twelve, Thomas correctly cuckoo-cuckooed that it is indeed midnight — the Court did not need to relitigate the facts, just whether the District Court’s rendition of them indicated a Constitutional violation. But his twice-a-day moment of accuracy was just that, a fleeting coincidence. The majority’s excessive and legally tenuous revisitation of the facts only bothered Thomas for one reason: he would simply have not reviewed the case at all.
In his concurrence, he declared that the “Court has no power to decide” either a claim of racial gerrymandering or vote dilution because these are strictly legislative decisions. Furthermore, for Thomas there “are no judicially manageable standards for resolving claims about districting” even if such claims are reviewable. The smartest people on Earth, he opined, cannot possibly litigate or review issues designated exclusively to the political branches. It’s an odd view given that the Court reviews legislation all the time to determine whether it adheres to the Constitution. Surely, legislation falls under the exclusive purview of the legislative branch, no? In addition to gerrymandering’s unique exemption from review, in Thomas’s view it comprises a process so “complex” and “arbitrary” that one cannot conceivably “reverse-engineer” the motives that led to a result. He harps on this point for several pages. Then again, Thomas also does not understand how to fill in simple ethics forms, so his befuddlement might make sense.
But the complexity, arbitrariness, or motivations do not form the primary basis of Thomas’s concern anyway. No. His issue is the colorblindness of society. Starting with the alleged overreach of Brown v. Board of Education, the seminal case in tackling segregation, Thomas thinks that employing “extraordinary remedial measures” to correct Constitutional wrongs “are at odds with the history and tradition of the equity power and the Framers’ design.” The Brown Court, Thomas seemed to suggest, executed the power “to invent whatever new remedies may seem useful at the time,” and this was wrong. Redressing unfair, discriminatory power-grabs through gerrymandering, Thomas persisted, rests “on the same questionable understanding of equitable power.” In other words, even if legislation is constitutionally broken, the Court is in no position to fix it.
Like many faux originalists, Thomas then supported this judicial laissez faire approach by citing the lack of “historically supportable” solutions. Indeed, Thomas complained that forcing the redrawing of electoral districts that were unconstitutionally gerrymandered “exceeds ‘the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution’.” The High Court of Chancery… in England. Thomas invoked the doctrine of some ancient court out of merry ol’ England, just as Alito relied on the wisdom of Sir Edward Coke and Matthew Hale in the Dobbs decision. For a bit of reference, the Pennsylvania State Supreme Court adroitly reminded us all who Matthew Hale was:
The Dobbs majority relied upon the patriarchal notions of eminent authorities of old English common law, including Lord Matthew Hale, [whose] beliefs were driven by his goal of keeping women from encroaching upon the rights of men. [Hale] who presided over the hanging of two women accused of being witches [thought that giving women] legally enforceable rights over their own bodies was a threat to the freedom of men.
Extremists on the Court from Scalia onward continue to show an obsession with boxing American jurisprudence into some medieval corner. Bring back the days of burning witches, I guess. Anyway, pontificating on that requires far more ink, perhaps spilt by me at another time.
For now, the conclusion to draw from this latest legal atrocity vomited by this defunct Court is quite simple. The US Supreme Court is not an adjudicative body. For them, laws in the United States have no meaning. Precedents have no value. Logic has no place. Reasoning is a foreign word. Instead, always toward some pre-determined ideological outcome, the intellectual lightweights of this Court engage in historic and semantic sophistry to gut the rights of one group after another in the United States, groups that always look suspiciously different from them.
I dared not trust the case on the presumption that the court knows everything. In fact, I argued it on the presumption that the court didn’t know anything.
Robert Vanwey was Senior Technical Analyst for the New York State Division of Criminal Justice, who specialized in investigating public corruption, technology and financial crime. He also has a Juris Doctor and Master degree in history.
Be sure to check out Just Say We Won, his detailed narrative of Trump’s attempted soft coup to overthrow the United States of America, and According to Trump, Any President can do Anything, Including Kill You, a careful analysis of Trump’s immunity arguments made before the Supreme Court. Or check out the Evidence Files Substack for an exploration into technology, science, aviation, and the Himalayas, where Rob frequently lives and works.
