So now, in time for the July 4th celebration of our democracy, the Supreme Court has ruled that elected officials shall pick their voters rather than the other way around. It’s probably a worse decision that Bush v. Gore because the Court said in 2000 that there was no precedential value to that decision. Not so with Thursday’s ruling on gerrymandering.
The nation’s highest court said that it has no role to play in determining whether gerrymandering – drawing congressional district lines to advantage one party over the other – has gone too far. Lower courts have found otherwise, including in Michigan, Wisconsin and Ohio. The current case before the Supreme Court involved a Republican map in North Carolina and a Democratic map drawn in Maryland.
Chief Justice John Roberts differentiated between race-based gerrymandering and partisan gerrymandering, the former said to be “inherently suspect.” On partisan gerrymandering, he rejected a role for the Supreme Court, saying that the districts may reasonably appear unjust, but that the resulting interference with democratic principles doesn’t mean that the solution lies with the federal judiciary.
I share Justice Elena Kagan’s “deep sadness” that the nation’s highest court turns its back on its role in preserving our democracy through the fundamentals of a free and fair voting system. “The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process,” she wrote. In her dissent, Kagan said that the practice of extreme partisan gerrymandering amounts to “rigging elections.” Outrageously, the nation’s highest court has taken a pass.
Federal courts at the district level have acknowledged their responsibility. Former rulings have held that districts must be compact, contiguous and reflect common interests to preserve as much as possible the value of one person one vote. The North Carolina legislator who drew his state’s pro-GOP map said that he believes Republicans are better for the country, and he drew the map to maximize their opportunities to get elected. The map he drew facilitated the election of ten Republicans and three Democrats, only because, he said, he couldn’t figure out how to get 11 Republicans and just two Democrats. Not surprisingly, Common Cause, the League of Women Voters and the North Carolina Democratic Party filed suit.
There are other remedies, definitely more long-term. One is active grassroots engagement by a party to wrest control of the state legislature. Another is to establish independent commissions in each state to draw new district lines in an attempt at bipartisanship. There is also a role for Congress, where a 2005 Fairness and Independence in Redistricting Act, reintroduced every year, would mandate each state to set up such an independent commission and consider such criteria as compactness, contiguity, and population equality.
This substitution of partisanship for popular will is especially galling in our divided time, with the fate of the republic hanging in the balance. It’s bad enough that our elections are influenced by unseen amounts of “dark money” and that we have foreign intervention in our electoral process, especially manifest in 2016. Now we have Supreme Court imprimateur on unfair partisan power aggregation in district lines that determine whether and to what extent our individual votes count. And we can’t even make a federal case out of it.