Democracy Hangs in the Balance as Supreme Court Deliberates

Thursday, October 12th, 2017 @ 9:03AM

In what may be its biggest decision since Bush v Gore, for all intents and purposes, handed the 2000 presidential election to George W. Bush, the United States Supreme Court is deliberating Gill v. Whitford, deciding the constitutionality of Wisconsin legislative district lines drawn by the Republican majority in 2010 that has led to what plaintiffs consider to be disproportionate representation favoring Republicans. In the election the year after redistricting, Democrats won a majority of the statewide vote—51.4 percent—yet captured just 39 of the 99 contested seats. Plaintiffs argue that Republicans had gained unfair advantage through the process of gerrymandering—creating districts that dilute the political strength of the opposing party. The Supreme Court’s decision could impact as many as 20 other states.

Using sophisticated computer programming, Republicans could either “pack” or “crack” voters into districts that favor their party. The former involves packing a few districts with a heavy proportion of Democrats rather than dispersing voters evenly across districts and thereby creating competitive districts. Cracking is the process of dispersing opponents across many districts and thus diluting their political strength. Historically, both Democrats and Republicans have been guilty of partisan gerrymandering, however with today’s computers, the practice can be done with more precision. The results are often contorted districts such as Illinois’s 4th Congressional District represented by Democrat Congressman Luis Gutierrez, one of the more egregious examples.

Illinois 4th Congressional District

Those twisted congressional district are drawn to ensure incumbents have a greater probability of re-election—which does not necessarily result in more polarization, but reduces the chances of moderates being elected. Many believe gerrymandering has played a role in Republicans retaining control of the House of Representatives. In 2012, Democrats garnered 1.7 million more votes than Republicans nationwide but controlled only 46 percent of seats in the House. Democrats outpolled Republicans in North Carolina and Pennsylvania but won only 9 of 31 seats in both states. On the flip side, in 2014, Democrats won 57 percent of the votes in California and controlled 74 percent of seats. A recent study by Princeton scholar Samuel S. H. Wang, concluded gerrymandering in 2012 may have cost Democrats as many as 22 seats.

Plaintiffs allege that gerrymandering violates not only the 14th Amendment—equal protection under the law—but also the First Amendment by classifying voters by political affiliation and then denying them full expression in exercising their political preferences. It’s a stretch but could swing Justice Anthony Kennedy’s deciding vote. A few prominent Republicans have come out in full force against gerrymandering. Arizona Senator John McCain joined fellow Democratic Senator Sheldon Whitehouse in issuing a statement urging the Supreme Court to act. Former California governor Arnold Schwarzenegger has forcefully condemned the practice. However, the Supreme Court has been reticent about deciding matters of a political nature—believing they are best left to legislatures.

While the Supreme Court has been reluctant to weigh in on political questions, it has acted on racial gerrymandering, most recently in May 2017, ruling in Cooper v. Harris, that North Carolina was in violation of the 14th Amendment when it drew two congressional districts that restricted the voting strength of African Americans. The Supreme Court took on nonracial gerrymandering cases in 1986, 2004, and 2008 but did not strike down the practice although various justices called partisan gerrymandering illegitimate, seriously harmful, incompatible with democratic principles and “manipulation of the electorate.” They felt they could not set a standard to determine when legislatures had crossed the line. Legendary Chief Justice Earl Warren when asked to name his most important case did not choose the landmark Brown v. Board of Education or Gideon v. Wainwright, which established the right to counsel, or Miranda v. Arizona, which established a right to avoid self-incrimination, he choose Baker v. Carr, which led to the concept of one person, one vote.

In a decisive verdict on June 29, 2015, the Supreme Court upheld Arizona’s referendum to select a nonpartisan commission to do its redistricting. In 2000, voters in Arizona passed an amendment to the state’s constitution transferring redistricting responsibilities from the legislature to an independent commission. The Court’s 5-4 ruling was split along ideological lines with Justice Kennedy casting the deciding vote. According to the Brennan Center for Justice, 24 states are considering redistricting reform to rein in partisan gerrymandering. It boils down to a fundamental question: should legislators be choosing voters or should voters choose their representatives? All eyes should be on the Supreme Court and the new census nears in 2020.

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