Not Your Grandpa’s Gerrymandering; The Rigged Election We Should be Talking About
By: Ashleigh Creed
In 2012 the democrats got 1.4 million more votes than the republicans and could not take control of the [House of Representatives]; and when a gerrymander like this, for all intents and purposes, puts a chamber ostensibly intended to mirror popular opinion and the public will beyond control of the voters- that damages the levers of representative government; that is how elections are rigged and that is the kind of rigged we ought to be talking about. Not what Donald Trump is talking about. Author David Daley on how “the game changed in 2010”;
The Best of the Left Podcast (January 19, 2018).
For those needing a brief refresher on the subject, gerrymandering is the act of “redrawing the lines of a congressional district to give one political party a voting advantage over another.” (See http://www.dummies.com/education/politics-government/what-is-gerrymandering/) The idea was born from a bill signed by Massachusetts Governor Elbridge Gerry that redistricted his state to “overwhelmingly benefit his party” back in 1812. This redrawing is effectuated through acts of “cracking” and “packing.” Cracking being when the controlling party takes the opposing party’s vote and divides it up into as many districts as possible- to make it as ineffective as possible; and packing being when the controlling party “packs” as many of the opposing votes as possible into as few districts as possible, in an effort to take the majority for themselves. (See www.redistrictingthenation.com). Historically, this was “business as usual,” and a bipartisan game. However, with modern technology, the threat now posed to democracy through acts of gerrymandering, can no longer be ignored.
Every decade the United States conducts a census – a “population enumeration” – the results of which include extremely detailed demographic information that is used to “allocate Congressional seats, electoral votes and government program funding.” (See www.redistrictingthenation.com).This census data comes preloaded on a program called “Maptitude,” which also provides demographics, ethnicity, economic data, consumer preferences and even voting records. Essentially, “a partisan mapmaker now has so much information in front of them that they can draw [district] lines that are essentially unbeatable for a decade.” Author David Daley on how “the game changed in 2010”; The Best of the Left Podcast (January 19, 2018). Or, more simply put, “he who controls redistricting can control Congress.” Karl Rove, The GOP Targets State Legislatures, (March 4, 2010). See https://www.bestoftheleft.com/_1159_voters_need_to_pick_their_reps_not_the_other_way_around_gerrymandering
At this point you may be asking yourself, “is this legal?” I certainly was. And, as it turns out, the Supreme Court has been considering that same question for several years now. Since Baker v. Carr in 1962 to be exact. Baker v. Carr, 369 U.S. 186 (1962). Those early cases led to the development of the “one person, one vote” principle which boasted to be profoundly constitutional and in symmetry with the framer’s intention. However, the principle’s application wasn’t without its problems. Further, the Court was struggling with coming up with a standard to satisfy discord amongst Justices regarding judicially manageable gerrymandering cases, or if the area was even justiciable in the first place. Indiana circa 1986, a suit was filed by a number of Democrats against various state officials claiming that the Republican Governor’s reapportionment plan constituted a “political gerrymander intended to disadvantage Democrats across the state.” Davis v. Bandemer, 478 U.S. 109 (1986). On appeal, the Supreme Court reversed the decision of the trial court and held that: (1) political gerrymandering claims were properly justiciable under the Equal Protection Clause; and (2), in the case at bay, “while the apportionment law may have had a discriminatory effect on the opposing party, the effect was not “sufficiently adverse” as to violate the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution.” But, what then is, “sufficiently adverse?” Fast forward a few years to 2004 and Vieth v. Jubelirer, a split decision that had no majority opinion, where the Supreme Court “decided not to intervene because no appropriate judicial solution could be found.” Vieth v. Jubelirer, 541 U.S. 267 (2004). In this case, Justice Scalia proffered that “the Court should declare all claims related to political gerrymandering nonjusticiable” because “no court had been able to find an appropriate remedy to political gerrymandering claims in the eighteen years since the Court decided Davis v. Bandemer.”
Now, fast forward to 2017 and Gill v. Whitford: Plaintiffs filed suit in 2015 challenging the legislative re-districting plan drawn by the Republican-controlled legislature following the 2010 Census, alleging discrimination against Democratic candidates and voters on the basis of their political beliefs in violation of the Equal Protection Clause of the Fourteenth Amendment. The procedural history is as follows:
On November 21, 2016, the panel issued a 2-1 opinion holding that Wisconsin’s legislative plan was an unconstitutional partisan gerrymander because it resulted in excessive partisan asymmetry that could not be explained by neutral factors such as political topgraphy. Wisconsin filed an appeal on February 24, 2017, asking the Supreme Court to review the decision striking down the map.
So, Wisconsin Democrats are claiming that Republicans have drawn district lines that virtually guarantee their party’s control of both houses of the state legislature. The Republicans counter that the tests proffered by the Democrats to measure political gerrymandering are “too complex and fail to provide a limited and precise standard for evaluating partisan gerrymandering claims.” “This case will force the Supreme Court to tackle questions that have long gone unanswered: Can the courts actually rule on partisan gerrymandering? And if so, how will they evaluate such claims?” David Goldman, One Person, One Vote (September 27, 2017). With so much at stake, this case will be one to watch; but, regardless of the outcome, I am left still wondering, is this the best we can do? Will the Supreme Court rule that political gerrymandering is nonjusticiable? Likely resulting, then, in further perversion of our democratic system? Or will they rule that gerrymandering is a constitutionally justiciable issue of equal protection and lay out a standard for evaluating such claims? Which, pragmatically, legalizes the perversion to the standard laid out by the Supreme Court’s decision. Again, is this the best we can do?