Clos­ing a ‘cav­ernous di­vide’

Walker County Messenger - - Front Page -

“You are the only in­sti­tu­tion in the United States that can solve this prob­lem.”

That was at­tor­ney Paul M. Smith, telling the Supreme Court this week that the jus­tices had to deal with a grow­ing men­ace to democ­racy: highly so­phis­ti­cated ger­ry­man­der­ing by both par­ties that is se­ri­ously ag­gra­vat­ing the poi­sonous par­ti­san­ship af­flict­ing the cap­i­tal.

Smith is right. Nor­mally judges are -- and should be -- very re­luc­tant to ad­ju­di­cate po­lit­i­cal dis­putes. But politi­cians keep show­ing that they are en­tirely in­ca­pable of re­form­ing a sys­tem that keeps them in power, and the stakes are very high. “What is re­ally be­hind all of this?” asked Jus­tice Ruth Bader Gins­burg dur­ing the court’s ar­gu­ment. “The pre­cious right to vote.”

We would add: the right to have a gov­ern­ment that fo­cuses on solv­ing prob­lems and serv­ing peo­ple and doesn’t spend its en­tire time play­ing po­lit­i­cal games and seek­ing par­ti­san ad­van­tage.

The tribal feud on Capi­tol Hill is get­ting worse, not bet­ter. Apart from the most ba­sic tasks -- keep­ing the gov­ern­ment run­ning, rais­ing the debt limit, pro­vid­ing aid for storm-rav­aged states -- Congress is in­creas­ingly paralyzed and dys­func­tional. The leg­is­la­ture’s ap­proval rat­ing is 16 per­cent in the lat­est Gallup poll, a dis­mal and ac­cu­rate judg­ment.

There are many rea­sons for this dys­func­tion and no magic formula will com­pletely re­v­erse the trend. But chang­ing how con­gres­sional dis­tricts are drawn is one re­form that could make a real dif­fer­ence.

To­day, in­cum­bents use highly ef­fi­cient com­puter pro­grams to tai­lor dis­tricts that so­lid­ify their power while un­der­cut­ting their op­po­nents’. In the case ar­gued be­fore the court this week, Wis­con­sin Repub­li­cans used a shrewdly dis­torted map to cap­ture 60 of 99 leg­isla­tive seats in 2012, while win­ning only 48.6 per­cent of the statewide vote.

This is not just an ab­stract de­bate about fair­ness. Legislators are us­ing their power to de­stroy a ba­sic prin­ci­ple of democ­racy: ac­count­abil­ity to the vot­ers. If they rep­re­sent to­tally safe dis­tricts, they have lit­tle in­cen­tive to co­op­er­ate with ri­vals or lis­ten to dis­senters.

The House of Rep­re­sen­ta­tives proudly calls it­self “The Peo­ple’s House,” but it’s be­come “The Politi­cian’s House” -- an Amer­i­can ver­sion of the House of Lords, un­trou­bled by messy mat­ters like vot­ers and elec­tions.

Rep. Brian Fitz­patrick, a Penn­syl­va­nia Repub­li­can who joined a court brief op­pos­ing the Wis­con­sin map, told the New York Times: “You have 435 dis­tricts in the na­tion, and there’s prob­a­bly only 20 or so that are le­git­i­mate swing dis­tricts. For the 415 safe seats, their main elec­tion is in the pri­mary, not the gen­eral. When the main elec­tion is in the pri­mary, you leg­is­late ac­cord­ingly. The re­sult has been a grow­ing cav­ernous di­vide, which has cre­ated a Hat­field v. McCoy en­vi­ron­ment in the leg­is­la­ture, and it’s hurt­ing the Amer­i­can peo­ple.” Ger­ry­man­der­ing is only partly to blame for this “cav­ernous di­vide.” Out­side in­ter­est groups pour mil­lions into po­lit­i­cal cam­paigns and de­mand pu­rity on their is­sues. The out­rage in­dus­try, a net­work of right-wing ra­dio hosts, web­sites and pres­sure groups, threat­ens reprisals against any law­maker who ac­tu­ally talks to a Demo­crat. Lib­er­als have their own, if less pow­er­ful, ver­sion of Ortho­doxy Inc.

Then there’s the “big sort”: vot­ers mov­ing to com­mu­ni­ties pop­u­lated by like-minded peo­ple. Democrats per­formed poorly in Wis­con­sin in part be­cause so many of their sup­port­ers crammed into ur­ban ar­eas or col­lege towns, “wast­ing” their votes.

Still, ger­ry­man­der­ing is real and dan­ger­ous. Repub­li­cans who want the court to avoid the is­sue in­sist that the Se­nate, where can­di­dates run statewide, is just as po­lar­ized as the House, but that’s just not true. In 2013, the Se­nate passed a com­pre­hen­sive immigration re­form bill with 14 Repub­li­can votes, but GOP lead­ers in the House re­fused even to bring it to the floor.

Right now, there’s a bi­par­ti­san push in the Se­nate to craft a bill shoring up the in­sur­ance mar­kets cre­ated by Oba­macare. Many Repub­li­can gov­er­nors, also elected statewide, sup­port the ef­fort, but House Repub­li­can lead­ers are dis­miss­ing the whole en­ter­prise.

Jus­tice Gins­burg is cor­rect that the court has an obli­ga­tion to tackle ger­ry­man­der­ing, be­cause the “pre­cious right to vote” is at stake. Chief Jus­tice John Roberts says the court could be dam­aged by ac­cept­ing this chal­lenge, but it could also be dam­aged by avoid­ing it.

The key to the out­come rests with Jus­tice Anthony Kennedy. He’s shared Gins­burg’s con­cerns about democ­racy’s peril, but doubted whether courts could de­vise a “work­able stan­dard” that draws a dis­tinct line be­tween the le­git­i­mate and cor­rupt use of po­lit­i­cal power.

Now, the jus­tices have to draw that line and de­fine that stan­dard. They’re the only ones who can do it.

Steve and Cokie Roberts can be con­tacted by email at steve­

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