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Gerrymandering

How the Supreme Court's gerrymandering decision wiped out a 1962 court precedent

The Baker v. Carr decision established the historic 'one man, one vote' standard. Now it seems to have been washed away.

Keel Hunt
Columnist

Anyone still wondering what President Donald Trump has accomplished need only look to the Supreme Court’s decision that it is helpless to fix cases of partisan gerrymandering now.

With the strokes of their five pens, Trump’s new conservative majority on the high court swept away 57 years of judicial history flowing from the Baker v. Carr decision. That case established the “one man, one vote” standard and, importantly, opened the door to proper federal court review of legislative redistricting.

Previously, the courts had regarded partisan gerrymandering as a “political” matter outside the purview of the judiciary. On that basis, judges sidestepped taking up gerrymandering cases, in which some legislatures redrew districts to protect themselves in future elections. (Baker v. Carr was soon applied to congressional districts also.)

Last week, the nation's highest court said pretty much the opposite: That partisan gerrymandering cases — where a majority political party has disadvantaged the other in drawing new district lines — are now off-limits going forward.

Constitutional scholars will parse all this in the days ahead, but right now it feels very much like the Supreme Court has turned back the nation’s clock by about six decades.

That was a big win for Republican officeholders and a high triumph of Trumpism, for whom the Supreme Court is now sufficiently packed. By cementing Republican control of legislative districts, this overshadows even Bush v. Gore (2000) and Citizens United (2010) in its potential erosion of modern democracy.

A Tennessee tie

The U.S. Supreme Court: "What's wrong with a little gerrymandering?"

Baker v. Carr was a Tennessee case. Charles W. Baker, a Republican, was former mayor of Millington, Tennessee; and Democrat Joe C. Carr was Tennessee’s secretary of state with authority over elections. The legislature had not redrawn district lines since 1901, and Memphis, Nashville and other cities contended this had shortchanged them in the legislature’s funding decisions.

The assertion proved correct. The failure to update legislative districts by current population had cemented the political clout of rural counties, especially in middle Tennessee. They had lost population to the cities over the first half of the 20th century, but they had kept their legislative voting strength to the detriment of population centers.

Historically, the courts had refused to correct this, insisting the judiciary should not delve into the “political thicket” where the legislative branch was responsible. Then Baker v. Carr wiped away this dodge, affirming that gerrymandering was a proper subject for court review. It was a landmark ruling for fairness.

‘One person, one vote’ standard wiped away

On Friday, I caught up with Nashville attorney Harris Gilbert, one of the few surviving members of the original legal team in Baker v. Carr. Now 87, he helped me understand what has been lost in light of Thursday’s ruling.

“It’s wide open now,” Gilbert told me. “The ‘one person, one vote’ standard is dead for a while. It may come back when the Democrats have a majority on the court.”

In 1961, Gilbert was one of three young Nashville lawyers (together with Tommy Osborne and John Jay Hooker Jr.) who went to Washington to advance the cities’ case for redistricting. They found hope at the Department of Justice in an extraordinary meeting with Solicitor General Archibald Cox.

The Supreme Court justices

(That meeting was arranged by John Seigenthaler, later editor of The Tennessean, who was then the top assistant to Attorney General Robert Kennedy. Getting the three lawyers from Nashville in to see Cox on very short notice was a measure of Seigenthaler’s own stature in the young Kennedy administration.)

The Warren court wrestled with the great question, then voted 6-2 to send the Baker case to district court in Nashville where it started, declaring that gerrymandering was in fact “judiciable,” not merely political. After trial, District Court Judge William Miller required the Tennessee legislature to redraw its lines.

Equal culprits

Looking back, it is clear that neither political party has clean hands when it comes to partisan gerrymandering. Both sides have done it when opportunities came. In fact, the gerrymandering that kept Tennessee legislatures rural-dominated into the early 1960s was — until Baker v. Carr — engineered by Democrats, not Republicans. Presently, the state Senate and House are controlled by Republican supermajorities.

This is why a handful of states have shifted to independent redistricting commissions in order to lift the process out of partisan politics and also out of legislative darkness. Some Tennesseans are advocating that now.

“How can the political system work things out if it’s the part that’s broken?” Gilbert suggested in our interview. “The pendulum will swing again. Unless the citizens make it very clear they are tired of this baloney, the Democrats will do unto the Republicans as the Republicans have done unto them. The people have the opportunity to solve this problem, if they have the will to do it.”

And that is why elections matter. Another one is coming in 16 months.

Keel Hunt is the author of two books on Tennessee political history. This column originally appeared in The (Nashville) Tennessean.

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