We should look at the mythology behind the once-assumed belief that judges do not have the knowledge or capacity to control any redistricting decisions. Additionally, many argue that the judicial system is constitutionally barred from restructuring even blatant discriminatory redistricting. Indeed, there is an inherent tension between two constitutional provisions on point. But what is going on in virtually all of the red state legislatures is a movement that moves the balance of Congressional power in federal elections squarely to Republicans before a single vote is cast. The release of Census data triggers a once-a-decade redistricting process across the land. The above chart illustrates how gerrymandering works. However, note that Republicans and Democrats have each historically abused this process. Let’s look at the Constitution first.
When it comes to presidential elections, the Constitution gives the Legislatures of each State the right to determine the “Manner” in which the State’s presidential electors are appointed. See U.S. Const. Art. II, § 1, cl. 2 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, [the] Number of Electors” to which it is entitled). Article I, § 4 (the “Elections Clause”) governs setting state districts that determine House seats. The Clause directs and empowers states to determine the “Times, Places, and Manner” of congressional elections, subject to Congress’s authority to “make or alter” state regulations. It accords each level of government the authority to enact a complete body of law for such elections, including rules concerning public notices, voter registration, voter protection, fraud prevention, vote counting, and determination of election results. Whenever a state enacts a law relating to a congressional election, however, it is exercising power under the Elections Clause; states do not have any inherent authority to enact such measures.
Looking at a subsequent (and thus seemingly prioritized) Constitutional provision, however, the “Equal Protection Clause” of the post-Civil War era, the 14th Amendment, pulls back on a theoretical blanket right of states to do what they want in creating voting districts for federal elections. Still, the Supreme Court, particularly the current right-wing configuration, has found ways to ignore that Equal Protection Clause by stating it will only look at the words of any state voting restrictions… not the obvious intended or actual discriminatory impact of such state laws, a position that allowed the Court to allow voter suppression limitations in Arizona to stand.
In the arena of gerrymandering, the Court has simply proselytized that excessive complexity makes judicial engagement in redistricting too complex for any court absent clear wording in redistricting that clearly imposes prohibited discrimination (like race). The conservative justices have also been adverse to modern analytics, which could apply standards approved by the National Conference of State Legislatures (NCSL) noted below that easily and objectively identify gerrymandered districts and provide neutral alternatives. Nothing evidences this judicial disdain for this 21st century mathematical process than the words of Supreme Court Chief Justice John Roberts who “has consistently expressed his disinterest in having the federal courts determining winners and losers in partisan disputes over legislative boundaries; he suggests, straight face and all, that this is necessary to preserve the judicial branch’s reputation for independence.
“Roberts has argued that mapmaking is a political function given by voters to their elected representatives, issued one of his most scathing and sarcastic dissents in a case where the Court narrowly upheld the constitutionality of Arizona’s independent redistricting commission, and referred skeptically to standards that measure the impact of partisan gerrymandering as ‘sociological gobbledygook.’” Salon.com, 3/24/19. Yet there are trusted computer programs that objectively apply these often judicially accepted NCSL’s standards (as of September 2017):
“Courts have identified six ‘traditional districting principles’ that are common to many states. These include two that are based on geography:
Compactness (a measure of a district’s geometric shape)
Contiguity (all parts of the district must be connected)
“The other traditional districting principles are:
Adhering to pre-existing political subdivisions (such as city and county lines)
Preserving communities of interest (such as neighborhoods or regions where the residents have common political interests)
Preserving the cores of prior districts (to provide continuity of representation)
Protecting incumbents (by avoiding contests between incumbents that could result if a new district included residences of two or more sitting representatives).”
Nevertheless, many states, not so coincidentally mostly red states, have simply rejected these criteria and any objective algorithms that conclusively prove discriminatory gerrymandering. The latest to join the “make sure Democrats are marginalized” gerrymandering occurred on November 10th as both houses of the Utah legislature, overwhelmingly Republican, passed just such a plan which was immediately accepted by the governor. All in one day! It was more than ironic when Governor Spencer Cox suggested that if the voters objected to this plan, they could always vote it out… even as he rigged their ability to elect representatives to vote it out.
The November 10th Associated Press examined this mostly red state trend that gives Republicans more federally elected members of Congress well before any election (with a lessor effort in a couple of blue states): “North Carolina Republicans are well positioned to pick up at least two House seats in next year's election — but it's not because the state is getting redder.
The state remains a perennial battleground, closely split between Democrats and Republicans in elections. In the last presidential race, Republican Donald Trump won by just over 1 percentage point — the narrowest margin since Barack Obama barely won the state in 2008.
“But [in early November], the GOP-controlled legislature finalized maps that redraw congressional district boundaries, dividing up Democratic voters in cities to dilute their votes. The new plan took the number of GOP-leaning districts from eight to 10 in the state. Republicans even have a shot at winning an eleventh.
“North Carolina's plan drew instant criticism for its aggressive approach, but it's hardly alone. Experts and lawmakers tracking the once-a-decade redistricting process see a cycle of supercharged gerrymandering. With fewer legal restraints and amped up political stakes, both Democrats and Republicans are pushing the bounds of the tactic long used to draw districts for maximum partisan advantage, often at the expense of community unity or racial representation… Republicans dominated redistricting last decade, helping them build a greater political advantage in more states than either party had in the past 50 years… Republicans need a net gain of just five seats to take control of the U.S. House and effectively freeze President Joe Biden’s agenda on climate change, the economy and other issues.
“But Republicans' potential net gain of three seats in North Carolina could be fully canceled out in Illinois. Democrats who control the legislature have adopted a map with lines that squiggle snake-like across the state to swoop up Democratic voters and relegate Republicans to a few districts.
“In the 14 states that have passed new congressional maps so far, the cumulative effect is essentially a wash for Republicans and Democrats, leaving just a few toss-up districts. That could change in the coming weeks, as Republican-controlled legislatures consider proposed maps in Georgia, New Hampshire and Ohio that target Democratic-held seats… Ohio Republicans have taken an especially ambitious approach, proposing one map that could leave Democrats with just two seats out of 15 in a state that Trump won by 8 percentage points.”
Even where voters have established “election commissions” to attempt to reduce partisan control over redistricting, some legislatures have actually voted to give themselves the power to override the resulting districts. “Among the dozens of election reform laws changing rules regarding how voters cast ballots, several have also diminished secretaries of states' authority over elections or shifted aspects of election administration to highly partisan bodies, such as state legislators themselves or unevenly bipartisan election boards.” ABC News, August 16th. For those who believe that the United States is a representative democracy, think again.
I’m Peter Dekom, and there is a reason why The Economist refers to the United States as an unrepresentative “flawed democracy.”
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