By Michael Wein
Last June in Ocean City, Maryland, the Supreme Court panel discussion for the Maryland State Bar Association (MSBA) convention, (which included guest panelists Kelsi Corkran, Prof. Shon Hopwood and Beth Brinkman) seemed to agree on one thing–the two pending political gerrymandering cases of Benisek v. Maryland and Gill v. Whitford, were likely to be the blockbuster decisions for the Court. That didn’t happen last year, with the Supreme Court not deciding the merits of those cases and remanding the Benisek case on procedural grounds.
Still, that left open the possibility the merits of the legal issue would come up again this year, and a decisive Majority opinion, particularly with the North Carolina Rucho case waiting in the wings. Unfortunately, for those who have studied the corrupting consequences on democracy and good government created by severe partisan redistricting, a year didn’t help. Instead, the clarity the Supreme Court decided, came in the form of a 5-4 opinion consolidating the Redistricting challenge of Benisek with that of North Carolina’s Rucho decision, concluding partisan gerrymandering will not be addressed by the Federal Courts as a “political question.”
As MdAppBlog contributor Alan Sternstein explained in a piece last week analyzing Rucho, excessive partisan gerrymandering, would appear to be quite justiciable, and logically makes sense, consistent with prior Supreme Court cases. Justice Elena Kagan’s Dissent, in favor of justiciability, discussed the little doubt, without Court intervention, the potential permanent possibility, of the lack of competitive Congressional elections, and an unnatural number of elected partisan Democrats and Republicans, as opposed to moderates, centrists, and independents. Chief Justice John Roberts’ Majority Opinion, perhaps ironically as a more optimistic perspective, in determining that the issue was non-justiciable in the federal courts, seemed to support alternatives, through Congressional action, or through the “state by state” approach of non-partisan redistricting Commissions. This piece focuses on the Congressional action alternative, particularly as related to the history of the Populist movement also known as the “Progressive Era” movement from the early 1900s. Part Two, when published will discuss the “state by state” approach alternative in more detail, both historically, and how that can be a guide for today.