Judicial Fiat?

Madison's words are oft quoted by those opposing judicial activism,
 but he was actually referring to the courts expanding congressional authority
 beyond that specified in the Constitution.

A month ago I wrote about the Fair Districts movement in Pennsylvania and its lawsuit, led by the League of Women voters, seeking to have the absurdly gerrymandered boundaries of the Commonwealth's districts for the US House of Representatives declared unconstitutional.

That lawsuit succeeded: the Pennsylvania Supreme Court issued an order that the boundaries for the districts be re-drawn.

This has attracted national attention, as Pennsylvania is not the only state in which congressional districts have been a hot topic of political discussion.  North Carolina is just one other current example.

Last week (Monday, 2-26-18, to be precise), this subject was mentioned in the "Monday Political News Roundup" on the NPR broadcast of the KQED (San Francisco) Forum, a program hosted by Michael Krasny.  Krasny was talking with KQED's Senior Political Editor Scott Shafer, when Shafer referred to the decision as a "judicial fiat."

This was somewhat jarring to hear.  As you likely know, NPR is thought of as being part of the "liberal media" establishment, and San Francisco, home to KQED, certainly plays into that stereotyping.  Shafer is not known for liberal bias - and of course no political journalist should be - but a gay man from San Francisco is not someone I would expect to use a phrase that suggests a court is over-reaching its authority, given how the LGBTQ movement has relied so much upon the courts in seeking fair treatment.

The word fiat, taken in its most neutral sense, can mean simply an order to "make it so" (in the words of British naval officers, made famous by Captain Picard on Star Trek).  But the word is usually understood to suggest an arbitrary edict, in an authoritarian sense.

The purpose of this essay is not to take Shafer to task for his choice of words but to examine the question of whether the Pennsylvania Supreme Court was, in fact, over-reaching.

The Court found the gerrymandered districts unconstitutional.  So we should ask whether there is anything in the Pennsylvania Constitution or the US Constitution that provides a clear basis for that ruling.  The federal Constitution says simply that the drawing of district boundaries is the job of the state legislatures.  The Pennsylvania constitution, a much longer document (typical of state constitutions), contains specific language concerning the drawing of boundaries for state legislative districts but not congressional districts.

So what did the Commonwealth's high court do to find a basis for its ruling?

First, it declared that the language related to the drawing of state legislative districts - which specifies that districts should be compact and contiguous and should break up recognized entities such as counties and municipalities as little as possible (only where necessary to make district populations come out even) - to be entirely appropriate for extrapolation to congressional districts and to provide a "floor" - or minimum standard - by which these boundaries can be judged.

Second, it reviewed the political history of Pennsylvania, from colonial times through the drafting of the Commonwealth's first constitution and several revisions over many decades.  In an opinion exceeding 130 pages, the Court found that Pennsylvania has a history of trying to assure that its citizens have representation based on elections that are free and equal.  The consistent principle is that Pennsylvanians should not have less of a voice in their government because of where they live, or their nationality or ethnic background, or their political ideology.  Thus congressional district boundaries deliberately drawn to have exactly that effect are unconstitutional in the Court's view.

The state Supreme Court then reviewed the evidence presented by the parties to the lawsuit in support of or refuting the claim that existing boundaries were, in fact, deliberately drawn for the purpose of reducing the voice in government of Pennsylvania Democrats.  This evidence was somewhat limited by the refusal of Republican leaders in the state legislature to provide information about the methods they used in drawing the lines.

However, the strategy and tactics used by the Republicans have been no secret.  "REDMAP" is both what the GOP wants the US to look like (the Republican party's symbolic color red dominating the US map) and the acronymous name of its project for achieving that: the Redistricting Majority Project.  Just Google REDMAP, and settle in for hours of reading about how successful this has been in many US states, Pennsylvania prominent among them.  As I explained in last month's essay, Pennsylvanians distribute their votes for Members of Congress roughly equally between the two major parties, yet the state's congressional delegation of 18 in the US House of Representatives is not 9-9, but 13 Republicans and 5 Democrats (before the resignation of Tim Murphy last fall).  The situation is similar for the state legislature, which has strong Republican majorities in both houses.

So what are we to make of the Court's ruling?  It might seem even more like judicial fiat when you consider that the Supreme Court issued the new boundaries itself.  But its original order instructed the legislature to develop a new plan for congressional districts, send it to the governor for his approval, and then pass it along to the Court for its review.  The other branches of state government did not follow those instructions, knowing full well that Court-issued boundaries would be the result.  Legislative leaders of the two parties separately prepared new maps (on a partisan basis), and the Republicans sent theirs to the governor.  He did not approve, and prepared his own.  All of these were forwarded to the Court.  As no plan was submitted to the Court having been approved by the legislature and the governor, the Court, aided by its retained Special Master, drew up its own plan.

Just what is at issue here?  First, whether the state constitution, accompanied by state constitutional and legislative history, really affords a basis for the Court's ruling.  Second - given the US Constitution's provision assigning the task of drawing congressional district boundaries to state legislatures - whether the Court was sufficiently deferential to legislative authority.

Any time someone does not like a court ruling that is at odds with what legislators have done, the court can expect to be accused of "legislating from the bench" or of "judicial activism."

In the case of this Pennsylvania Supreme Court ruling, legislators have proposed impeaching the justices who voted in the majority, and the ruling has been appealed to a panel of federal court judges as well as to the US Supreme Court in a separate action.

Few things are of such keen interest to students of political science as a battle between branches of government over separation of powers.

If you are a "strict constructionist," you are likely to object to the Court's ruling, as it does not rely on the plain language of the state constitution (which does not specify criteria for congressional districts) and seems to flout the US Constitution (which assigns authority to state legislatures).  If you believe in the importance of examining constitutional and legislative history, which the Court does at great length in its opinion, you will reach the opposite conclusion.  Yesterday's Pittsburgh Post-Gazette offered a glimpse of this difference of opinion within the Thornburgh family.

Here is an update of the situation, published yesterday in The Morning Call, an eastern Pennsylvania newspaper.  At this point the pundits' consensus view seems to be that the federal court challenges will fail, and the new districts will be in effect for the primary to be held May 15th.  Right now congressional candidates across the Commonwealth are circulating petitions, gathering signatures to get on the ballot for that primary.  As one of those candidates, I would like the federal courts to stay out of this, as we have had so many screwball twists and turns in this election cycle already, we really don't need another one.  But stay tuned!

Guns & Mental Health

A teenager returned to the high school in Parkland, Florida from which he had been expelled for behavioral problems.  Armed with a semiautomatic rifle, he shot about 30 students, killing 17.  Many who knew him at the school knew he was deeply disturbed, and that he had guns, and they had predicted that he would do exactly this.

News reports said the FBI was warned but did nothing.

When I read online commentary it seems to me that opinion is divided into two camps.  Guns are the problem.  Or mental illness is the problem.  Of course American gun violence is a complex matter, and the availability of guns and the prevalence of mental illness are both important factors.

Are we going to do something to reduce dramatically the availability of guns?  All the evidence points to No.  We have more firearms in the USA than we have people.  We had a ban on semiautomatic rifles for ten years, but it had little effect on supply, and it sunset without evident effect on crime, partly because these weapons are used in a tiny fraction of incidents in which people are killed with guns, even though they are used in a sizable proportion of mass shootings.  We may have another ban on these weapons, as the public demand to "do something" escalates.  Or we may not.

If we do, I predict it will have little or no effect on mass shootings.  First, weapons like the AR-15 used by the Parkland, Florida shooter will remain abundant unless there is an Australian-style confiscation, which seems exceedingly unlikely.  Second, anyone bent on a mass shooting does not need an AR-15.

Ask a "gun nut" who owns an AR-15 with 30-round magazines and a Glock pistol of heavy caliber (say, .40 or .45 or 10 mm) with 15-round magazines this simple question: given either weapon, with twice as many loaded magazines for the Glock as the AR-15 (to yield the same number of total rounds), is there any real difference in how fast you could shoot and kill how many people?

The answer will be No.  And if your response is, well, then, we have to ban semiautomatic pistols, too, I can assure you that is a much bigger hill to climb, as they have been in US civilian hands in vast numbers for well over a century.  The same is true for high-capacity (meaning more than ten rounds) magazines.  Given the large number of such guns and magazines in circulation now, and the "non-starter" status of any attempt at confiscation, this approach is just not an effective solution.

So, I have a simple idea that might make a small contribution.  Small contributions have the disadvantage of being small, but sometimes they have the advantage of being feasible, so consider this one in that light.

In the spirit of full disclosure, there are three things I should tell you about myself.  First, I am a doctor specializing in emergency medicine, with a longstanding interest in public health, and I've read a lot about the public health perspective on gun violence.  Second, I am a gun owner, and I have read a lot about the American gun culture.  I can tell you how gun owners think and feel, and I can explain the positions of the NRA and the other gun-rights advocacy groups that take an even harder line (believe it or not).  Third, I am running for Congress, so I think a lot about America's problems, including social problems, from the "there-oughta-be-a-law" viewpoint.  If a voter asks me what I am going to do, if elected, about gun violence, "I don't know" is not an acceptable answer.

I live in Pennsylvania.  In my state doctors have a legal obligation to report to the Department of Transportation drivers who have medical problems that may cause them to have episodes of loss of consciousness that would be dangerous if they happen while driving.  This affects mostly people with seizures, but diabetics with repeated episodes of low blood sugar, people with fainting spells of various causes, and alcoholics and other drug addicts who lose control of a vehicle because of an overdose are all reportable.

So how about this?  Why not ask a doctor who encounters a patient with behavioral problems such that, in the physician's judgment, this person should not have access to firearms, to make a similar report to an appropriate government agency?

How would that work?  Here are a few essential points.

1.  Doctors would need guidelines.  So form a panel of experts to create them.  What are the signs a doctor can recognize that mean a person is potentially dangerous in ways relevant to having access to guns?  Require all licensed physicians to learn these guidelines.  State medical boards already micromanage our continuing education, like requiring all licensed physicians to take two or three hours of online education about opioid prescribing and addiction, or child abuse, so this would be easy to do.

2.  Reporting in good faith would be legally protected.

3.  A person who is reported would be investigated with respect to whether s/he should have the right to possess firearms restricted.  There would be built-in due process involving appropriate parts of our legal system, with the right to appeal and the right to petition to have gun rights restored.

Would this identify everyone who is emotionally unstable and shouldn't have guns?  Of course not.  But what do we do now?  The people who are disqualified are those hospitalized involuntarily because of mental illness, and those who are adjudicated mentally incompetent.  That is a small portion of the population of people who shouldn't have guns because they are a potential danger to themselves or others.  And the expansion of the "pool" adopted during the Obama Administration, and reversed by Trump, that would have added people judged by the Social Security Administration as incapable of managing their affairs (financially) was vigorously opposed by both the NRA and the ACLU.  That should catch your eye, because the ACLU does not recognize a Second Amendment individual right, even after the Supreme Court explicitly did.

We need creative solutions.  Lots of them.  And they have to be solutions that can get substantial buy-in from interested parties on various sides of the issue.  This is one.  I will be doing my best, if I am elected, to fashion more that I think can be enacted in the context of an American society that is starkly polarized on this issue.

Fair Districts Pennsylvania

Many voters are now aware that some people in Pennsylvania regard the way the boundaries of congressional districts are drawn in the state to be unfair.

Let's start with the basics.  Representation in the United States House of Representatives is based on population.  For more than a century the number of representatives grew as the population grew.  But in the early 20th Century it was decided that this could not go on forever.  So after the US Census in 1910 the number of Representatives in the House was fixed at 435, effective with the Congress that was elected in 1912 and took office in 1913.  This is a number that is now familiar to all who pay attention to the workings of Congress.  We don't really think about it.  But the census a century later showed the population had more than tripled.  If we had kept increasing the number of Representatives in the House, it would now be 1,456!  Most agree that would be unwieldy.

The number of people in a congressional district is currently a little over 700,000.  The boundaries are supposed to be drawn so that the number of people in each district is roughly equal.  This is done after each US Census, so the last time was in 2011, after the 2010 Census.  This decennial re-drawing is necessary because population grows and shifts.  The overall population grows, and the number of people living in any given state or any given district may increase or decrease.  The number of representatives in each state may decrease even if the number of people increases, if it increases less than the populations of other states.  This has happened with my state of Pennsylvania, which has seen its population grow with each Census but has had its number of Representatives in the House steadily decline because its population has grown more slowly over the last century than the population of the country as a whole.  After the 1910 Census, Pennsylvania had 36 Representatives in the House; after the 2010 Census, that number had been halved, to 18.

Now that you know something about how representation is determined, to make it proportional to population, you might ask whose job it is to do that.  The US Constitution says the state legislatures have that responsibility.  But the legislature may delegate that responsibility.  This is typically done to make it non-partisan and less political.  California, for example, has an independent commission that draws the boundaries for both its delegation in the House and its state legislature.  In Pennsylvania the legislature draws the boundaries for itself and for the congressional delegation.

Now the question arises: what makes district boundaries "fair?"

There are many ways of looking at this, but it is usually viewed through the prism of our two-party system, and the idea is that fairness should produce a congressional delegation that reflects the party affiliations or voting patterns of the state population as a whole.  So, if you look at the way the people of Pennsylvania vote - tally up all the votes they cast for their US Representatives - it comes out roughly 50-50 between Democrats and Republicans.  Yet the state's membership in the House consists of 13 Republicans and 5 Democrats.  That could easily be explained if the Democrats tend to be concentrated in certain areas, such that a few districts are very heavily Democratic, while the rest have a modest preponderance of Republicans.  But when you look at the way the boundaries are drawn, and at the odd shape of some of them, it is natural to wonder whether they have been drawn to achieve that relative concentration of Democrats in a small number of districts, when geography alone did not produce that pattern.

Some of these districts have shapes that are very odd, indeed:

The state legislature has access to very detailed data on voting patterns, and it is no secret that these data are used to draw boundaries that favor the party that has the majority in the legislature.  And the legislature, because it draws the boundaries for its own districts, can work that angle to keep its majority.  If the governor is a member of the same party as the majority of the legislature, or one party has a veto-proof majority, then there is nothing to keep this from going pretty far to favor one party over the other.

[By the way, this process is called "gerrymandering," after Elbridge Gerry, a US public official who served as Vice President of the US more than a century ago.  Gerry was governor of Massachusetts in 1812 when he signed a reapportionment bill that created district boundaries, based on the 1810 census, that favored his party.]

If you have no "dog in this fight," so to speak - you don't care which party has control - you might not like or dislike the idea of partisan drawing of district boundaries.  But you should understand that, whichever party the process might favor in a given state, it tends to create boundaries that are "safe" for one party or the other because they have strong partisan majorities.

What is the consequence of "safe" partisan districts?  Let's look at this both ways: good and bad.

One may argue that with safe partisan districts, voters tend to elect people whose appeal to the "base" of their party is strong, so that their political positions are more extreme, in either a liberal or conservative direction.  This can serve to make Congress more partisan and more polarized, so that congressmen find it more difficult to work together and to compromise.

On the other hand, one may argue that that same tendency favoring candidates for office who have views that appeal to their own partisan base will assure that we elect some congressmen who have strongly liberal or conservative views, thus assuring that those views are voiced and heard in the political process that plays out on Capitol Hill.

Imagine instead that a state like Pennsylvania - or the nation as a whole, in which voting patterns trend close to 50-50 between the two parties - had districts drawn to be 50-50.  Then every candidate would have to appeal to both Democrats and Republicans, both liberals and conservatives.  This would heavily favor "moderates" or "centrists," people who do not lean strongly one way or another ideologically.  Congress might then be less partisan, less polarized, with congressmen more willing to work together in a spirit of compromise.  Yet the voices to which I alluded earlier - the strongly ideological voices, favoring clearly liberal or conservative ideals - might never be heard on Capitol Hill.  We should ask whether that is a good thing.  And you may say we needn't worry about that, because this is done by state, and we will always have liberals from California and conservatives from Texas.  But it's an interesting and important question within each state.

Now, using Pennsylvania as an example, I am going to take you through some arithmetic to illustrate the difference between the notion of "fair districts" that reflect statewide voting patterns and what the legislature can do if it is determinedly partisan.  I will begin by telling you that the state constitution says districts should be "contiguous" - meaning there should not be a piece here and a piece there, not connected with each other - and compact, which militates against some of the very odd shapes you see in the map above.  It also says political entities, such as townships, boroughs, municipalities, and even counties - should not be broken up by district boundaries except where necessary to make populations come out roughly equal.  My district (PA-18) has voters from four different counties, and not one of those four counties is entirely within the district.  That's a pretty clear indication that the boundaries do not meet the constitutional standard.

So, here we go.  Don't worry about the actual numbers, because they are just for the sake of illustration.  I am using numbers just so that this will not be a set of equations full of variables, making you feel as though I am torturing you with algebra.  But although I am using real numbers instead of variables, this is generalizable to any 50-50 state.

Each district has 700,000 people.  We will then say that about 400,000 are registered voters.  (The rest are not eligible to vote or too apathetic to register.)  And now let's say we want to maximize the number of safe Republican districts and minimize the number of safe Democratic districts.  So we decide we want to create districts that are 60-40 Republican to Democrat.  That means a district has 240,000 registered Republicans.  Statewide there are 18 districts, with 400,000 registered voters each, half of whom are Republicans, for a total of 3.6 million registered Republicans.  If we put 240,000 of them in each district, we have enough for 15 districts.  The remaining three districts will then be 100% Democratic.

Now you may say this is ridiculous.  How could we draw districts so that 15 of the 18 are 60:40 R:D, and the other 3 are 100% D?  Well, of course we couldn't, if the districts actually had to appear to make some geographic sense when you look at them on a map.  But if the legislature can draw them any way it wants, you can do exactly this.

And that brings us to the Pennsylvania Supreme Court case, in which the Court says the districts are unconstitutional, because the state constitution says the boundaries have to meet certain standards of geography, and the Republicans in the legislature say the Court's ruling is unconstitutional, because the US Constitution says the authority to draw the boundaries belongs to the legislature, period.

The Republicans in the legislature are trying to get the US Supreme Court to intervene, to say the state legislature has the ultimate authority.  On the other side, the League of Women Voters and others who brought the "fair districts" lawsuit in the first place, are telling the US Supreme Court that the state court is applying the state constitution, and this is clearly a state matter.  We should hear from the US Supreme Court this week: will it, or won't it, get involved?

My money is on won't.  And that is a good thing, both as a matter of jurisprudence and of fairness.

If a partisan legislature can draw boundaries in the way I illustrated above, to favor their party 15:3, when statewide voting patterns suggest 9:9, then in every 50-50 state the legislature could draw boundaries that favor its own majority party with 83% of the seats in the US House of Representatives.

No matter how you look at it, those are just not fair districts.