Gerry, Meet Mander

 

Gerrymandering has been embedded in our nation’s history virtually since its inception: “The ‘Gerry-Mander’ cartoon first appeared in the Boston Gazette, March 26, 1812, and was quickly reprinted in Federalist newspapers in Salem … and Boston. The cartoon expressed opposition to state election districts newly redrawn by Massachusetts’ Jeffersonian Democratic-Republican Party, led by Governor Elbridge Gerry. Fearing that the Federalist Party would gain power in the 1812 election, Gerry consolidated Federalist voting strength in a salamander-shaped voting district. The practice—though not invented by Gerry—became known as a ‘gerrymandering.’” National Museum of American History. 

The Democrats used this abominable voting district-defining technique during the post-Civil War Reconstruction era right into the 20th century. When the Republican Party reconfigured its appeal in the South to displace the Democratic political machine to attract social conservatives, they cemented their hold on virtually every state legislature they controlled by becoming the major deployer of gerrymandering to maintain their incumbent advantage. Today, because of the constitutional bias against heavily populated states versus less densely populated agricultural states (which, for example allows 30% of the population to elect half the Senate), the Supreme Court has generally shied away from all but the most egregious forms of manipulated redistricting, focused on electing members of the House of representatives.

According to Article I, Section 4 of the Constitution, the states and their legislatures have primary authority in determining the ‘times, places, and manner’ of congressional elections. Congress may also pass laws regulating congressional elections. States can also set special commissions to promulgate election rules and districts. “For congressional races, 33 states and their state legislatures play the dominant role in congressional redistricting. In eight states, commissions draw congressional district lines. In two states, hybrid systems are used, in which the legislatures share redistricting authority with commissions. The remaining states comprise one congressional district each, rendering redistricting unnecessary… In 33 states, state legislatures play the dominant role in state legislative redistricting. Commissions draw state legislative district lines in 14 states. In three states, hybrid systems are used.” Ballotopedia.

But the Supreme Court has ruled that the “equal protection” provision of the 14th Amendment to the Constitution is supposed to protect the voting citizenry from unfairly biased redistricting. It’s just that the Court has not been particularly clear what that means, and most of the time the Court simply declines to hear even some pretty outrageous manipulation. Despite a modern ability to use computer analysis to identify gerrymandering and suggest a reflective alternative, the Supreme Court has repeatedly stated that it is not well-equipped to redraw voting districts.

One recent trend is for states, seeking to end partisan bickering and out-and-out exclusionary structures that overwhelmingly favor incumbents, to opt for redistricting to be determined by special commissions formed expressly for that purpose, shifting that function away from the legislature. There’s just one catch: in an effort to reflect a state’s partisan split, these commissions are often proportionately filled with partisan appointees. See a problem here? With new Census results, states are now charged with reconfiguring their congressional districts accordingly.

Writing for the September 20th Associated Press, David Lieb writes: “As a result, the new state House and Senate districts in Republican-led Ohio will still favor the GOP. Democrats who control New York could still draw maps as they wish. And a potential stalemate in Virginia could eventually kick the process to the courts.

“‘It’s probably predictable that this is sort of how it’s panned out,’ said Alex Keena, a political scientist at Virginia Commonwealth University who has analyzed redistricting and gerrymandering…. Redistricting can carry significant consequences. Subtle changes in district lines can solidify a majority of voters for a particular party or split its opponents among multiple districts to dilute their influence. Republicans need to net just five seats to regain the U.S. House in the 2022 elections, which could determine the fate of President Biden’s remaining agenda.

“Throughout most of American history, redistricting has been handled by state lawmakers and governors who have an incentive to draw lines favoring their own parties. But as public attention to gerrymandering has grown in recent decades, voters in an increasing number of states have shifted the task to special commissions.

“Some commissions — such as those in Arizona, California, Colorado and Michigan — consist solely of citizens who hold the final say on what maps to enact. But others, such as in Ohio and Virginia, include politicians among their members or require their maps to be submitted to the legislature for final approval, as is the case in New York, Virginia and Utah.

“If New York’s Democratic-led Legislature rejects the work of the new commission (consisting of four Democrats, four Republicans and two independents), then lawmakers can draft and pass their own redistricting plans… The prospects of that increased recently, when Democrats and Republicans on the commission failed to agree and instead released competing versions of new maps for the U.S. House, state Senate and state Assembly.” Each state that uses this commission process has a set of unique procedures to apply, but that doesn’t stop gridlock or highly partisan maps with zero votes from members of the minority party, an impasse that often throws the vote back to the state legislature or, as indicated above, the appropriate state courts. But it is clearly a mess, and that the relative weight of any individual vote is anything but uniform across the entire country; it is hardly even uniform within individual states. Is this democracy?

“Frustration also is mounting in Ohio, where a commission dominated by Republican elected officials voted last week to adopt a state legislative redistricting plan they favored. Because the plan had no Democratic support, the state constitution limits it to four years… Democrats on the panel called the maps unfair. But Republican Senate President Matt Huffman asserted that special interests pressured Democrats not to back a redistricting plan that could have lasted the entire next decade.

Huffman said the new map probably would produce 62 Republican seats in the Ohio House and 23 in the Senate — down just a couple in each chamber from the current GOP supermajorities. Experts estimate the state’s voters are more evenly divided, around 54% Republican to 46% Democratic… The partisan map came despite more than a dozen public hearings dominated by testimony from Ohio residents who said the current gerrymandered maps have left them out in the cold…

Michigan’s citizen redistricting commission released its first draft of a new state Senate and U.S. House map last week and is still working on a state House map. It’s planning to take more public comment on its proposals with a goal of finalizing maps by the end of the year — blowing past the Nov. 1 deadline set in the constitutional amendment approved by voters…

“‘There’s certainly a concern that two balanced sides just end in gridlock,’ [Liz White, executive director of OneVirginia2021] said. ‘The hope really is that the citizens are there to make sure that doesn’t happen.’… Even if the commission stalemates, the new process still could be considered an improvement over the previous one, because the public is getting to see deliberations and divisions that might otherwise have been kept behind closed doors, said Keena… ‘We’re going to be able to look back on this sort of experiment and see what works and what doesn’t work,’ he said. ‘Hopefully, that will lead to better reforms in the future.’” AP. Or not.

Our obviously fragile democracy has been stabbed, subject to seditionist physical attacks on its most hallowed institution (January 6th), lied about by its most senior elected officials including a president and subject to open defiant manipulation. Its very survival is very much in doubt, and if the US Supreme Court continues to fail to support equal protection within our voting process, it just might die.

I’m Peter Dekom, and when our highest court does not rise to protect the very elective process that defines our democracy, this nation may just unravel.