North Carolina and Maine Show The Voting System Remains a Mess

This past Monday, the US Supreme Court Struck down two of North Carolina’s Congressional Districts. And in typical fashion, folks are failing to understand what the Court did. The issues in Cooper v. Harris, were whether North Carolina’s First and Twelfth Congressional Districts (herein after NC-1 and NC-12) were improperly drawn. The Court answer yes to both questions. But what people are glossing over is the Court was unanimous in finding NC-1 improper. Everyone is focusing on the 5-3 split regarding NC-12. In doing so, the chattering classes, both conservative and progressive, are missing the forest for the trees.

For NC-1, when redistricting occurred following the 2010 census, the State found the district was short 100,000 people. There is and was no dispute the borders of the district would have to be altered. The question was how to do it. Ultimately, the borders of the district were drawn in a way the State thought it had to be done to comply with the Federal Voting Rights Act. And that was, the State argued, was by making the district a Majority Minority District.

(Brief diversion- for voting rights purposes, a majority minority district is one where a majority of the population is made up of one or more non-white racial groups and where they can elect someone they want. This is to prevent minority groups being put into districts where the white population, if it voted en bloc, could deny the minorities a representative they wanted).

The Court said the State didn’t need to do it because there was no evidence the white population of NC-1 (which is deeply Democrat) was voting in a way that prevented the minority communities (in this case, primarily African-Americans) from electing their choice for office. NC-1 was a heavily Democrat before redistricting. Nor did it matter that past performance was no guarantee of future performance. Because in the moment the district was electing members of the political party that a majority of the minority group approved.

This wasn’t an issue where those dastardly Republicans were trying to screw African-Americans. They were acting under a legitimate belief that if they didn’t do what they did, they would be in violation of the voting rights act. This suggest the problem lies not with the legislature, but with the law they must contend with.

NC-12 is a different story. And as the Court notes, this district has been before the High Court 4 times in the last 25 years. Justice Gorsuch did not participate because he was not on the bench when the case was heard. That meant only 8 Justices decided the matter. And if the Court deadlocks at 4-4, the lower Court is affirmed, but the Supreme Court decision has no precedential value. The dispute between the Majority and the Dissent was whether the Court was bound by the ruling it made the last time the issue was before them. The 3-member dissent (all from the conservative side) said they were so bound and the 4-person majority (all from the progressive side) said they were not. Now keen observers will note that 4+3 is 7. What about Justice Number 8? Well, that was Justice Thomas. He sided with the majority because he doesn’t think race should be a factor at all. And in this situation, that means he agreed with the Sotomayor, etc.

The one thing the Court still refuses to address is gerrymandering for political advantage. While the Court has been traditionally very wary of entering such discussions, this matter of drawing district boundaries to favor one party over another has to be addressed. The best way to get politicians to be more responsive to what the voters want is to put them into competitive districts and to increase the valid choices voters have instead of the current crap choices the two party system creates.

That’s why I have been intrigued by ideas such as ranked voting and this was something I had wanted to discuss a while back but the Scandal Par Heure of the Trump Administration kept putting it off. Main had a ballot question in November changing the way the voting would be conducted. Currently, most elections in this country are “first pass the poll”, i.e. whoever gets the most votes wins, even if that total is less than a majority of all votes cast. Under the system Maine voters sought to adopt, if no candidate got at least 50% of the votes cast, then the voters second choice votes would be considered. It is a system known as Ranked Voting. On Tuesday, Maine’s Supreme Court struck down the ballot initiative saying it violated the State’s Constitution.

Now on the one hand, it’s not that bad of a loss since all it means is amending the State Constitution. But on the other hand, I am still not convinced Ranked Voting will survive a Federal Challenge. I suspect the Supreme Court will decide, given its numerous precedents, Ranked Voting violates the “One Man, One Vote” Doctrine. Which is a shame. The more choices people have, the more likely the Country will break the duopoly that gave us Clinton v. Trump.

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