The 1812 cartoon in the Boston
Gazette mocking the shape of one of
Gov. Gerry’s contrivances.
Once every ten years, based on the population census, each state usually must reconfigure its voting districts, first to conform to the number of congressional representatives that its newly-counted population permits, and then to arrive at approximately equal numbers of voters in each district. That upheaval gives either party the opportunity to redraw districts in their favor.

The goal is either to draw a boundary around neighborhoods that vote for your own party to guarantee that your candidates — state and federal — will be elected — or to cordon off the maximum number of voters from opposing groups into as few districts as possible to minimize the number of legislators from their party.

There’s nothing new about this practice. Called gerrymandering, the word

derives from 1812’s governor of Massachusetts, Elbridge Gerry, who rearranged election districts to his liking. The contorted shape of one of them reminded people of a salamander.

Such maneuvering has lasting consequences: the districts do not change until after the next census in 2020 and the presidential election of 2024. The last 10 years show the effect: only 22% of the seats in the House of Representatives changed hands during the entire decade. In California, a single seat out of 53 switched party control during those years. That led to a proposition that millions spent by unions and other Democratic groups could not keep off the ballot, disrupting as it would be to districts that had long ago been tailored in their favor. The proposition passed, a measure to bring redistricting out in the open by assigning responsibility to a nonpartisan commission, and California joined six other states (Arizona, California, Hawaii, Idaho, Minnesota, New Jersey and Washington) with similar commissions.

The 2010 election swept Republican majorities into the state legislatures that control the redistricting process in 36 states, and much of the remapping is thus producing districts that contain a preponderance of Republican voters. Often as not, the method is to pack minority groups such as Latins and blacks — traditionally Democratic voters — into as few districts as possible. The aim is to limit them to a minimum of representatives in Congress while “bleaching” the surrounding districts to make them safe for Republican candidates.

In North Carolina, Republicans captured control of the legislature in 2010 for the first time since just after the Civil War and drew district lines so as to corral 49% of all the state’s African-American voters into just three of the state’s 13 electoral districts, leaving the remaining districts mostly white.

Democrats play the same game in reverse. In Nevada, where population growth has added a seat, Republicans are trying to block an attempt by Democrats to spread the new Latino voters into as many as possible districts in the hope they will tilt their vote Democratic.

Redistricting battles often lead to court fights. Charged with redrawing the maps to add four new districts, the Republican majority in the Texas legislature brought forth a map that disadvantaged the very same Latino and black voters who had accounted for 89% of the state’s population growth that won the four new congressional seats. In response to suits
  Gerrymandered district in Florida, where areas are strung
  together by a connection no wider than a road to ‘capture’ the
  African-American population and “bleach” the surrounding area.
brought by Democrats and minority groups, a federal district court in San Antonio drew its own map, but the U.S. Supreme Court stepped in to give control back to the legislature.

The contorted shapes that gerrymandering produces are grotesque reminders that our democracy needs an asterisk.
This CNN report offers an example of how elections are rigged by taking us to an uninhabited grass strip in Chicago that separates two highways and is the only thing connecting two residential areas strung together to satisfy the requirement that a district be contiguous.

Redistricting is complex, and as one might expect, software companies have obligingly created the tools for apportioning voters to districts. This company is one of several.
Sample output from Maptitude redistricting software. What political ploy
was satisfied by that district that crosses a river and almost splits
another district in two?

What is lamentable is that the same software logic could be used to rid us of gerrymandering for good. Beginning by dividing a state into the nearest to equal size rectangles that irregular borders and waterways permit, each area could then be iteratively adjusted in shape and size — with no regard whatever to political parties and ethnic groups — until optimally equal populations occupy each district. Job done.

So where does this leave you? Whereas you may satisfy the new voter eligibility laws as they come into being, in our distorted democracy, your vote may not count at all if you live in a district rigged to be guaranteed for the political party you disfavor in the national election.

That assumes you don’t live in Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont or Wyoming. There is nothing for them to gerrymander. Their populations are too small to earn more than one member of Congress representing one statewide district.

It is astonishing that the Supreme Court, whose role it is to defend the Constitution, could have voted to allow strip searches of any detainee who is being placed in the general prison population, even for minor offenses. What happened to the 4th Amendment?

The right of the people to be secure in their persons…against unreasonable searches and seizures, shall not be violated…

What could be clearer? What could be a more unreasonable search than allowing the police to apprehend someone for walking on posted grass in a public park or failing to come to a complete stop at a stop sign and strip them naked to examine their body cavities? Because the ruling does not discriminate between someone with a violent rap sheet and someone who was nabbed for letting their dog off the leash.

The 5-4 decision turned on Justice Anthony Kennedy’s remarkable rationalization for ignoring the 4th Amendment:

Experience shows that people arrested for minor infractions have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment. They may have some of the same incentives as a serious criminal to hide contraband. A detainee might risk carrying cash, cigarettes, or a penknife to survive in jail. Others may make a quick decision to hide unlawful substances to avoid getting in more trouble at the time of their arrest. This record has concrete examples. Officers at the Atlantic County Correctional Facility, for example, discovered that a man arrested for driving under the influence had “2 dime bags of weed, 1 pack of rolling papers, 20 matches, and 5 sleeping pills” taped under his scrotum. (Kennedy, p. 14-15)

So, to catch the few, the rights of all should be compromised, says Kennedy. He has justified a huge expansion of police power with the example of someone smuggling into a jail those deadly weapons, cigarettes and cash, and with an anecdotal case — and for that matter an anecdote about a man secreting items that are also essentially harmless. In the actual case before the Court, the defendant was set free and all charges were dropped.

Not three months ago, the Supreme Court voted unanimously to forbid law enforcement from attaching without a warrant a GPS tracking device to the cars of suspects in order to follow their meanderings, basing their ruling on the same 4th Amendment that the strip-search ruling now ignores. Wrote Justice Antonin Scalia, Ttat amendment’s protection of “persons, houses, papers, and effects, against unreasonable searches and seizures” extends to private property such as an automobile. An automobile but not a person’s body? It is difficult to make sense of the Court’s thinking.

But the GPS ruling will hardly make a difference, it would seem. This recent report in the New York Times says that, while police may no longer attach GPS devices to cars, all over the country they are using cellphone tracking without benefit of court oversight, with phone companies capitalizing on the business and offering added services.

irresistible power

There is a truism that if you give authority a power, that power will be used, and will likely be misused and overused. That’s what happened after America’s panicked response to 9/11 when we unhesitatingly threw away a passel of the civil rights that were so much the theme of our lectures to the rest of the world about our model society.

One section of that statute passed by Congress with the Orwellian name of USA Patriot Act (which might better have been called the Bin Laden Act, so successfully has it diminished American civil liberties) allowed federal agents to issue “national security letters” or “administrative subpoenas” — that is, subpoenas issued on their own, not by a court — that permitted the F.B.I. secretly to tap telephones, eavesdrop on e-mail, and invade homes to haul away private information: computers, financial documents, medical records, anything found. If you are aware of the home invasion, you are disallowed from telling anyone, even a lawyer, else face prison. Free speech repealed. Due process repealed.

Obviously that’s a law that should be used with extreme care. Instead, in 2007, the Justice Department found that the F.B.I. had routinely violated the standards, issuing thousands of “exigent” or emergency letters — broad sweeps of citizens where no emergency existed to see what might turn up in “data mining”.

We can expect the same sort of reports from all across the land as police abuse their new unchecked right to strip-search for little (and, you can bet, prurient) reasons.

The Patriot Act is still with us. Ten years on, it keeps getting renewed. Obama gave it four more years of life in May of 2011. The truth is that 9/11 and a “war on terror” that has no definable end gave government an excuse without end to suspend civil liberties. What better example than this execrable law that President Obama just signed on New Year’s Eve that authorized indefinite detention of Americans in military prisons without trial.

risk aversion

Bernard Harcourt, political science department chair and law professor at the University of Chicago, calls the new strip-search permissiveness “police-state logic…that seeks to eliminate, to absolutely eradicate and purge any and all security risks, no matter how small they might be”.

He’s right. To eliminate risk is to shoot first and ask question later. So police across the country have increased the use of Tasers — stun guns that deliver an agonizing electrical shock — even when it’s just a woman complaining about a traffic stop in this segment on “60 Minutes” last.

It was the same for shutdowns of Occupy Wall Street demonstrations last fall. Without hesitation, police across the country employed the new weapons in their arsenals to discourage “the people peaceably to assemble” that was once guaranteed by the 1st Amendment. Evidence of physical provocation by Occupiers were few, non-violence being key to their winning public support, but the police in several cities went straight to tear gas, pepper spray and beatings. The risk being eliminated is the urge by people to take to the streets to defend their rights. Glen Greenwald at Salon.com said it best:

”Every time the citizenry watches peaceful protesters getting pepper-sprayed — or hears that an Occupy protester suffered brain damage and almost died after being shot in the skull with a rubber bullet — many become increasingly fearful … in general of exercising their rights in a way that is bothersome or threatening to those in power. That’s a natural response, and it’s exactly what the climate of fear imposed by all abusive police state actions is intended to achieve: to coerce citizens to ‘decide’ on their own to be passive and compliant.”

Where was the Obama Administration in the strip-search case? Fully on board. Cousin to this administration’s preference for suppression of 1st Amendment rights (reported in this article) is its apparent taste for getting rid of the 4th Amendment as well. The administration filed an amicus brief urging a blanket strip-search policy for all inmates entering the general prison population. Echoing Professor Harcourt’s total elimination of risk and Justice Kennedy’s willingness to violate everyone’s rights to look for the few malefactors, here’s Justice Department lawyer Nicole A. Saharsky: “When you have a rule that treats everyone the same you don’t have folks that are singled out. You don’t have any security gaps.”

If you are in favor of the Patient Protection and Affordable Care Act, you needn’t be concerned that Solicitor General Donald Verrilli did poorly in arguing for the


individual mandate before the Supreme Court.

Why is that? Wouldn’t the justices pore through the transcripts of the proceedings to see where his arguments failed the test of logic or precedent or points of law? Apparently not. Little known is that the justices confer in the afternoon immediately after the oral arguments, or at least by end week; each states reasons for what he or she has decided; and they vote — right then and there. So, while it is a preliminary vote, the case has already been decided. The perfunctory consideration of the arguments in court makes one wonder whether the public sessions are little more than a ritual.

Reporters, broadcasters, commentators and legal experts and interested citizens are busily picking over everyone’s words in the three court sessions, but for no good reason since it’s most likely over and done with.
In that conference, the Chief Justice assigns the writing of the majority opinion if he sides with the majority; otherwise the most senior justice voting with the majority makes that assignment. Dissenters can write independently or as a group. The law clerks go to work, drafts are exchanged, and any justice may change his or her mind up to the moment when the decision is handed down. But one has to wonder about the rush to that preliminary vote and whether that puts undue pressure on a justice not to change his or her opinion, which could turn the majority into the dissent in a close case and cause a do over of all drafting.

who asked what questions?

To discern the fate of the health care act, look not to what Verrilli and Clement and Carvin had to say in arguing before the Court; rather, look to the questions asked by the justices. And, if you assume that the four liberal and four conservative justices will vote as expected, then you may want to look only to what Justice Anthony Kennedy asked:

“Can you create commerce in order to regulate it?” That was the first clue, a suggestion that the law had things backward. Verrilli would only later say, “Congress is regulating existing commerce, economic activity that is already going on, people’s participation in the health care market, and is regulating to deal with existing effects of existing commerce.”

A bit later Kennedy said, “Could you help…me with this? … Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act, to go into commerce. If that is so, do you not have a heavy burden of justification… to show authorization under the Constitution?”

The proceedings continued until at one point Kennedy asked Verrilli, “Can you identify for us some limits on the Commerce Clause?” Mr. Verrilli could not. His response wandered afield. He came unprepared to answer the key concern that, if the Court allowed the government to require everyone to buy health insurance, what can be said about health insurance that makes it different from all other forms of commerce? Wouldn’t that lead to, as Chief Justice Roberts said, “pretty much all bets are off”, and a government that could conceivably force us to buy or do whatever it chose, to engage in activity where there was none before, to “make people buy broccoli”, as Justice Antonin Scalia would trivialize the crucially serious health care matter.

Kennedy also showed an inclination to go beyond the judicial branch, not limiting himself to review of the law before him, by asking why didn’t Congress make a different law? “If the Congress has alternate means, let’s assume it can use the tax power to raise revenue and to just have a national health service, single payer … It can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct [taxing] power”.

Further on Kennedy says, “But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act…that changes the relationship of the Federal Government to the individual in the very fundamental way.”

When Paul Clement took the floor to argue for the 26 states suing to halt the Act, Justice Kennedy reversed field slightly when he said about the uninsured, “But they are in the market in the sense that they are creating a risk that the market must account for”. This reading says that the uninsured are already in the health care market by virtue of their effect on the cost transferred to others who pay for insurance, which suggests that the mandate does not force the “activity” of entering that market, a key word in the suit.

And finally, in the session on the individual mandate, Justice Kennedy seemed to continue this new outlook with, “And the government tells us… the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, …the young person who is uninsured is uniquely, proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries”.

If that sounds like the justice is finding something of limiting principle, the next day’s session did not encourage those who want the Obama Administration’s health case measure to go forward. The subject was whether, if the mandate for everyone to buy insurance were to be deemed unconstitutional, would that cripple the entire Act such that the Court should overturn the Act in its entirety?

Justice Sotomayor lobbied repeatedly for judicial restraint, saying that it is Congress’s preserve to decide what to do with what remains of the Act. “If we strike down one provision, we are not taking that power away from Congress. Congress could look at it without the mandatory coverage provision and say, this model doesn’t work; let’s start from the beginning. Or it could choose to fix what it has… Unless Congress tells us directly, it’s not severable, we shouldn’t sever. We should let them fix their problems”.

Yet Kennedy had a different view: “When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if … one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended”.

Hard to follow, but his gist is that the Court would be doing a greater service to Congress by overturning the entire law rather than hand it a broken statute, its key funding element removed, and leaving the legislature to do a repair job on damaged goods.

So you have just explored the mind of the swing justice in the health care law debate. How do you think he voted?