The inconvenience, having to get a majority

 If I told you Florida has 250,000 more registered Democrats than Republicans, but that the state Legislature has 73 Republicans and only 47 Democrats, would you be intrigued enough to ask why? Even Chief Justice Roberts thinks you would, but last week he and the four other conservatives in the Supreme Court decided there is nothing they can do about it.

 Fifty years ago I probably would have agreed with them.

 The whole answer is more complicated, but the simple answer is, of course, “gerrymandering.” The Republican lawmakers, being the majority, can draw election districts any way they want, and as long as they can do that, there will never be enough Democratic lawmakers to stop them from putting Democratic voters, in districts that overwhelmingly favor Democrats anyway – and keeping them out of districts where they could make a Republican seat competitive.

 The Chief Justice says gerrymandering is almost as old as the republic (correct) and that the Constitution doesn’t give the courts any license to stop it. (You won’t find anyplace in the Constitution where it says the courts can act if a president suffering from the Dunning-Kruger effect decides to ignore Congress and the courts and govern by fiat, either.)

  Anyhow, Justice Elena Kagan, writing for herself and the other liberals, dissented, and in the dissent she nailed a point that: a) the Chief  completely missed, b) is the reason I don’t agree with the Court now as I once might have.  I'll let her make the point in her own words after the break:

 

Yes, partisan gerrymandering goes back to the Republic’s earliest days. (As does vociferous opposition to it.) But big data and modern technology—of just the kind that the mapmakers in North Carolina and Maryland used—make today’s gerrymandering altogether different from the crude line drawing of the past. Old-time efforts, based on little more than guesses, sometimes led to so-called dummymanders—gerrymanders that went spectacularly wrong. Not likely in today’s world. Mapmakers now have access to more granular data about party preference and voting behavior than ever before. County-level voting data has given way to precinct-level or city-block-level data; and increasingly, mapmakers avail themselves of data sets providing wide-ranging information about even individual voters. …While bygone mapmakers may have drafted three or four alternative districting plans, today’s mapmakers can generate thousands of possibilities at the touch of a key—and then choose the one giving their party maximum advantage (usually while still meeting traditional districting requirements). The effect is to make gerrymanders far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides. These are not your grandfather’s  — let alone the Framers’—gerrymanders. (Page 9 of the dissent, page 48 of the Scotus PDF)

 When Daniel Webster (not the famous orator -- the current U.S. House member from Florida's 11th Congressional district) was Speaker of the Florida House in 1997, the state acquired a new-fangled computer program to aid the Legislature in the post-2000 Census redistricting.  Webster, an air-conditioning guy in private life, was amazed and invited lawmakers and scribes to look upon this mighty work and despair. I availed myself of the opportunity.

 On a huge screen a map showed several U.S. House election districts. Along the side were numbers showing the percentages of Republicans, Democrats and Independents. And how the district had voted in the last gubernatorial and last two presidential elections. The shaman demonstrating the device moved a cursor, and the central district lines moved to encompass some new streets and drop some old ones, and the numbers on the side all changed. A district that had been 54% Democratic in voter registration soon became 51 percent Republican, and all the districts around it changed accordingly. More movement, and it became 60% Democratic.

We were properly amazed. No one asked questions. No one could think of an intelligent question to ask. It was like magic. Today, the program is two generations more sophisticated; it might be able to change its numbers by excluding or including individual houses. And people can think of intelligent questions to ask. The answer, though  -- no matter what the question is – will be “algorithms.” Everyone will nod.

If a state Legislature can do that on its computer, a court could do that with the same program. So Chief Justice Roberts’s worry, which he shared with retired Justice Anthony Kennedy, is obviated. Anybody with a cursor can gerrymander today. You don’t have to phone the grizzled old political pro and describe your map to make sure you haven’t done something stupid. Yu don't even have to understand how the computer does it.

But federal courts will not be allowed to do that. Some state courts – if their state Constitutions are prescient -- may be allowed to. And some states have created independent Redistricting Commissions to operate the computers and give lawmakers the result, although not all commissions are allowed to have the last word. My state now has a Constitutional Amendment that sets rules for congressional and legislative districts. But it hasn’t been tried yet, and the current Republican lawmakers have pretty much made up their minds that citizen-initiated Constitutional Amendments should not be allowed.

As the situation stands, in most states the lawmakers choose their constituents, rather than the other way around. The other way around is what most Americans think we do. And because one or the other party practically owns each  district, its incumbent has to worry more about crazies to their left (if they are D) or right (if they are R) than anyone who might oppose them in a general election.  Hardly anybody ends up having to win over voters from both parties to win.

All that contributes to the inability of Congress to  get anything done. Some people have caught on. Although there are more Ds than Rs in Florida, there are almost as many Independents as either party. The Is have decided it’s a swindle. It is. The Supreme Court thinks so, too. But the Chief and the other four conservatives can’t think of a constitutional thing they can do about it.

Don’t look for salvation from legislatures of Congress. Their members are the ones for whom the system is perfect. It elected them, didn’t it?