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PaperclipPerfector  4d ago (text post)   16244 thread views

Culture War Roundup for the week of August 18, 2025

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Redistricting fight

It's been in the news that Trump is pushing for mid-decade redistricting. Yesterday, the Texas house approved a new map(https://www.texastribune.org/2025/08/20/texas-house-vote-congressional-map-redistricting-democrats-trump/) which nets the GOP five seats- while not a done deal de jure, in Texas politics when something the republican party wants passes the house, it's as good as done. Texas has only in-person filibustering(that is, a filibuster in the Senate needs to talk the entire time), so democrats can't delay the map for weeks in the upper chamber.

Separately, Gavin Newsom is pushing for redistricting California to gain more seats for democrats(https://apnews.com/article/california-texas-redistricting-congressional-map-4c22e21d5d4022d33a257045693b6fd4). One problem: California law doesn't allow the legislature to unilaterally do this. They need voter approval to override their independent redistricting commission. As gerrymandering tends to be unpopular with actual voters, their odds are a lot worse than Texas'. Other solidly blue states like Colorado have the same issue that they can't actually gerrymander on short notice due to their 'independent' redistricting commissions.

Trump is going beyond Texas as he tries to ensure Republicans maintain their House majority. He’s pushed Republican leaders in states such as Indiana and Missouri to pursue redistricting. Ohio Republicans were already revising their map before Texas moved. Democrats, meanwhile, are mulling reopening Maryland’s and New York’s maps.

The other problem for democrats in an all out gerrymandering war is that they simply have fewer seats to eek out. The most gerrymandered states in the union are all blue; red states going tit for tat isn't actually something they can escalate that much against. Combine it with red states not being dumb enough to establish independent redistricting commissions and it's pretty clear that democrats will lose in an all-out war of redistricting.

Combine it with red states not being dumb enough to establish independent redistricting commissions

Well, one formerly red state did. It turns out that "the Legislature" and "the People" in the U.S. Constitution mean the same thing (or so 5 Supreme Court justices thought).

It's worth reading Roberts' dissent if you enjoy that kind of thing. (starting at 2678 by the pagination on the left side).

Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from "the Legislature" of each State, Art. I, § 3, to "the people thereof." The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States.

What chumps! Didn't they realize that all they had to do was interpret the constitutional term "the Legislature" to mean "the people"? The Court today performs just such a magic trick with the Elections Clause. Art. I, § 4. That Clause vests congressional redistricting authority in "the Legislature" of each State. An Arizona ballot initiative transferred that authority from "the Legislature" to an "Independent Redistricting Commission." The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising "the Legislature" to mean "the people."

Yeah, I’m not very sympathetic to Roberts here. This precise case is, I believe, best read as a naked power struggle between the voters and the legislators. The latter had a privilege the former believed was being misused and wanted stripped from them. The defense of the legislature was best read as “you don’t have the right to tell us what to do, only we can decide whether we have this power (or Congress with an amendment), and we say no.”

Given this, what recourse would the voters have? They’d have to make this a single issue or else give up. And I’m really not sympathetic to the idea that a certain class - and politicians are by now definitely a class - deserves inalienable privileges over the rest.

Finally, his example of senator elections is trite. The question for senators was formally, how those elections should be operated. That obviously requires an amendment, since it’s changing a specific process. The point of the section on state elections is that the details are deferred to the state. Nothing more is specified beyond “the legislature.” Would Roberts have objected to a legislature voting for their own independent districting body on the basis that the Constitution forbids it? Or if you want something even wackier - the US Constitution does not specify the political structure of the states (beyond saying that the federal government will ensure they can have a republic, which was not defined as the American structure prior to America)! That is done by the state constitutions, individually. It is convention that they all resemble one another. But if a state rewrote its constitution to move the legislative power to something like, say, a series of elected bureaux, what in the Constitution would forbid this? Is this not a power delegated to the states? And then would “Legislature” in the Constitution refer to the legislating bodies, or to nothing at all, rendering the point moot? Or what if, oh, I don’t know, the state had rewritten its constitution to allow voters to legislate through the ballot? Does that include them in the legislating body? If not, then was the ballot initiative law unconstitutional? How can there be one without the other, when the Constitution does not state explicitly what structure it wants the states to have?

Roberts’ dissent is beyond specious. I rest my case.

The defense of the legislature was best read as “you don’t have the right to tell us what to do, only we can decide whether we have this power (or Congress with an amendment), and we say no.”

Given this, what recourse would the voters have? They’d have to make this a single issue or else give up. And I’m really not sympathetic to the idea that a certain class - and politicians are by now definitely a class - deserves inalienable privileges over the rest.

You're in good company since 5 of the Justices thought this way. They thought the result was good policy (as opposed to the many, many times the Supreme Court dislikes ballot initiatives, as Thomas lists in his dissent) and therefore the actual language of the Constitution didn't matter.

As to your other points, I suspect you didn't read Roberts' full dissent since he addresses some of your concerns. Not that you have to; there are better things in life than reading random SC decisions from 10 years ago about election laws.

Does he? I certainly didn’t find that when reading it. He certainly doesn’t present a compelling case that the US Constitution provides for any specific organization on the part of the states beyond assuming that they all must follow a familiar pattern. Well, now they don’t. So what now? Rule the very practice unconstitutional because it was not anticipated by the initial authors? He doesn’t make that claim ever. Why not?

His whole initial section on the definition has a particularly laughable moment where he undermines his whole argument, if he had been aware of it. Quoted in full:

Moreover, Dr. Johnson's first example of the usage of "legislature" is this: "Without the concurrent consent of all three parts of the legislature, no law is or can be made." 2 A Dictionary of the English Language (1st ed. 1755) (emphasis deleted). Johnson borrowed that sentence from Matthew Hale, who defined the "Three Parts of the Legislature" of England as the King and the two houses of Parliament. History of the Common Law of England 2 (1713). (The contrary notion that the people as a whole make the laws would have cost you your head in England in 1713.) Thus, even under the majority's preferred definition, "the Legislature" referred to an institutional body of representatives, not the people at large.

That is, in the initial definition of legislature, THE KING OF ENGLAND was a necessary component. We obviously don’t have that. The institutional body of representatives was ONE house of Parliament. The Lords Temporal and Spiritual were institutional, but not representative. The King was not a body in the sense he intends at all. Yet “the voting public when they select a ballot initiative” is somehow excluded from a definition of “legislature” that is obviously descriptive as to how the laws are passed in the country of concern? On the basis of THIS paragraph? Did this guy read what he was quoting?

Like I’m telling you, specious in its entirety. Come on, you can’t read this and tell me the guy doesn’t come off like Sotomayor.

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