Excluding Voters: How to Make America Grate

Demographics for the Republican Party are pretty nasty. Older, white voters, particularly those without a college education. GOP core. Minorities? Not looking good for the GOP. Younger voters (59% of Millennials have at least some college). Really not good for the GOP. Since the United States has already become a “majority of minorities,” and by definition older voters die off, the GOP doesn’t have a shot at maintaining its dominance of state legislatures, governorships, Congress and the presidency… as long as one person has the same voting power and access to the ballot as any other.

The solution, where Republicans can appoint judges, is to create voter ID laws, move polling places out of minority neighborhoods, policies that clearly hinder minorities from voting. Those incumbent Republicans have also created voting districts where non-Republicans are severely diluted and pushed aside.

Remember, Republican Donald Trump won the presidency while losing the popular vote by millions. Hmmm. Gerrymandering is an American tradition: Defining congressional districts to over-weight the power of voters favoring incumbents and under-weight voters of the “other” party. Whenever you see voting districts that have elongated reaches or twist excessively (the above are examples of several current gerrymandered districts), you can pretty much bet that you are witnessing gerrymandering.

Even sensing the inherent manipulative unfairness in partisan gerrymandering, the Supreme Court has struggled with how to remedy this distortion of our democracy. Meanwhile, modern academics were designing computer-generated algorithms, based on U.S. Census data and physical distance measurements, to provide objective determination that gerrymandering is present and to recommend structures where the inherent nature of the voters are reflected in the ultimate voting districts. Where the district is not reflective of the actual voting proclivities of the people in the area, an “efficiency gap” generates a clear mathematical verification of that fact. When the modern Supreme Court began to review gerrymandering, however, there were no “efficiency gap” measurements. Today, these algorithms are amazingly accurate. But history struggles to catch up.

For example, in “Davis v. Bandemer (1986), the Supreme Court held that partisan gerrymandering violated the Equal Protection Clause, but the court could not agree on the appropriate constitutional standard against which legal claims of partisan gerrymandering should be evaluated…  Lower courts found it difficult to apply Bandemer, and only in one subsequent case, Party of North Carolina v. Martin (1992), did a lower court strike down a redistricting plan on partisan gerrymandering grounds.

“The Supreme Court revisited the concept of partisan gerrymandering claims in Vieth v. Jubelirer (2004). The justices divided, and no clear standard against which to evaluate partisan gerrymandering claims emerged. Writing for a plurality, Justice Scalia said that partisan gerrymandering claims were nonjusticiable. A majority of the court would continue to allow partisan gerrymandering claims to be considered justiciable, but those Justices had divergent views on how such claims should be evaluated…

“In Gill v. Whitford (2016) a District Court used the efficiency gap statistic to evaluate the claim of partisan gerrymander in Wisconsin's legislative districts. In the 2012 election for the state legislature, the efficiency gap was 11.69% to 13% in favor of the Republicans. ‘Republicans in Wisconsin won 60 of the 99 Assembly seats, despite Democrats having a majority of the statewide vote…’” Wikipedia. In June of 2017, the Supreme Court agreed to hear Gill, but it soon reversed itself, remanding the case back to the lower courts for further review. Clearly, efficiency gap measurements can objectively address the concern that such voting anomalies cannot be objectively determined and resolved. They sure can today!

Yet the Court is more politically motivated that at any time in American history. There is much skepticism that the current Court, particularly if Brett Kavanaugh is confirmed as the next Associate Justice, would ever reach a ruling that would effectively reverse Republican voter district dominance and effectively level the voting playing field.

The Supreme Court’s bias in support of voter exclusion and distortion was unambiguous in its 2013 Shelby County v. Holder decision, in which it eviscerated long-standing provisions of the Voting Rights Act of 1965, which had been upheld by earlier incarnations of that Court. Effectively, the 2013 Court challenged maintaining voter-compliance scrutiny of certain named states where clear voting discrimination had been common practice. Lawyers arguing support for the statute as drafted argued that if those states were no longer going to subject to ongoing federal scrutiny, those discriminatory voter exclusions would be immediately reinstated. Those lawyers were horribly correct.

“On June 25, 2013, the Court ruled by a 5-to-4 vote that Section 4(b) [of the Voting Rights Act of 1965, ] is unconstitutional because the coverage formula is based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states. The Court did not strike down Section 5, but without Section 4(b), no jurisdiction will be subject to Section 5 preclearance unless Congress enacts a new coverage formula. [Like a GOP-dominated Congress with a GOP President would ever enact such legislation!!!]

“Five years after the ruling, nearly a thousand polling places had been closed in the country, with many of the closed polling places in predominantly African-American counties. Research shows that the changing of voter locations and reduction in voting locations can reduce voter turnout.” Wikipedia.

But much more has occurred since that ruling. “Five years after the Supreme Court gutted a key provision of the 1965 Voting Rights Act, a new report from the U.S. Commission on Civil Rights has confirmed predictions that the ruling would hobble enforcement of that landmark law…

“The term ‘judicial activism’ is thrown around, but if a decision ever deserved it, Shelby County did. The Constitution authorizes Congress to enforce the provisions of the 15th Amendment — which guarantees the right to vote without regard to ‘race, color, or previous condition of servitude’ — by enacting ‘appropriate legislation.’ In 2006 Congress voted to extend the Voting Rights Act’s coverage formula for an additional 25 years. Despite that, the court threw it out.

“The Civil Rights Commission report, ‘An Assessment of Minority Voting Rights Access in the United States,’ makes it clear why the court should have deferred to Congress’ judgment that extending the coverage formula would protect gains already made and prevent states from relapsing into discriminatory practices.

“The report notes that within two hours of the decision, Texas’ attorney general tweeted that the state would reinstitute a strict photo ID law, which had been struck down by a court during the pre-clearance process. A day later, North Carolina’s Legislature voted to make its voter ID law stricter, and eliminated or restricted rules that had made it easier for minorities to vote. Both states’ actions were ultimately found to be acts of intentional racial discrimination, but only after years of litigation. It wouldn’t have come to that if the pre-clearance formula had remained in place.” Los Angeles Times, September 23^rd.

So if you think you live in a representative democracy where voters are all approximately equal, think again. Despite their clear minority status, Republicans are in control, not only disproportionately in who gets to vote (always favoring the GOP) and who gets excluded (almost always Democratic-leaning voters) but of any attempt to correct this anti-democratic anomaly. Perhaps that’s why the Economist’s 2016 Democracy Index (released in January 2017) removed the United States from that category of nations living in a “full democracy” (9% of the global population) and pushed us down into 45% of the world population who live in a “flawed democracy.” Makes you feel all warm and fuzzy inside.

I’m Peter Dekom, and if a dying Republican constituency is prepared to violate some of the most basic democratic principles of our great nation just to maintain their minority governance, is the unraveling of our entire country now just a matter of time?