Gerrymandering and its Meandering of our Democratic Ideals
There is no greater threat to America’s democracy than when the voters lack confidence in their political and legislative system. In an age of voter disillusionment with their elected officials, the term “gerrymandering” has come to represent more than the malapportionment of political districts for partisan gain - it reflects the failure of judicial systems to effectively enforce democratic principles. The role of the judiciary should be to enforce democratic principles, however, in our increasingly politicised society, it appears that it is shying away from this function for political reasons. Due to gerrymandering reducing competition by creating safe seats, politicians have become more polarised, moving to their respective bases (McCarty, 2009). This increased entrenchment of incumbents and parties disenfranchises voters, who as a result become disengaged from the political process. The obstacles that prevent the Court from eradicating gerrymandering are entirely of their own creation. Having distinguished racial gerrymandering from gerrymandering that is merely partisan in nature and deciding that they have no power to constrain the latter, the Court is left unable to act in many instances.
Partisan gerrymandering manipulates district lines to ensure electoral success and maintain the party in power by creating safe seats for a single opponent while diluting opposition strength in the other districts (Daley, 2021). For instance, Texas’ 2018 House Elections resulted in a disproportionate number of seats won in comparison to the total percentage of the popular vote. Democrats won 47% of the popular vote but only 13 out of the 36 seats, representing just over 36% of available seats, while the Republicans won 50.4% of the popular vote but 23 out of 36 available seats (Lieb, 2017). This displays a key disruption of the democratic principle of “One man, One vote” due to the lack of equal representation in voting. Separately, racial gerrymandering is the deliberate and arbitrary distortion of electoral lines to mitigate the voting power of racial minority groups. Gomillion v. Lightfoot (1960) saw the Supreme Court utilise the Fifteenth Amendment, determining that the creation of a majority-minority district in Alabama, reduced minority political power from two districts to one (Okonta, 2018).
Comparing the Court’s willingness to find racial gerrymanders justiciable with its refusal to find partisan gerrymanders justiciable reveals a lack of doctrinal constraint (Spann, 2020). Therefore, the Court’s power to interrogate particular gerrymanders is dependent on deeming them racial or partisan in nature. Such a distinction is problematic as seen in Rucho v. Common Cause (2019), where the Supreme Court treated the constitutionality of partisan gerrymandering as nonjusticiable, thereby allowing voting districts to be created with the predominant intent of ensuring a desired political makeup. Once it is established that a gerrymander was not intended to be racial, the legitimacy of any political intent behind redistricting is treated as a “political question...beyond the court’s jurisdiction”’ (Baker v. Carr 1962). In her dissent, Justice Kagan lamented that ‘Of all times to abandon the Court’s duty to declare the law, this was not the one’.
Inherently, not all gerrymandering is racial, therefore by the court treating partisan gerrymandering as nonjusticiable, it is fundamentally limiting the situations in which it can take action to a subset of the total problem. Rucho shows how a gerrymander can easily avoid being categorised as racial, as population data on race was deliberately not used. Furthermore, even if we successfully eradicate racial gerrymandering, partisan gerrymandering is still undemocratic. Arizona State Legislature v. Arizona Independent Redistricting Comm’n recognised the “core principle of republican government is that the voters should choose their representatives, not the other way around”, displaying the mechanistic infringement of democratic principles being carried out by politicians being enabled to cherry-pick voters to ensure their re-election.
In a context where lawmakers are exercising their powers to erode democratic principles, the role of the Supreme Court is to act as a check on the legislature and the President, even if they are democratically elected, to ensure that political power is not abused to undermine democracy. This was seen through Roe v. Wade where the Supreme Court overturned its 1973 decision and allowed women to have abortions in most circumstances. This Court has recognised this even in the specific context of elections, such as in Harper v. Virginia Board of Elections (1966) which outlawed poll taxes as a precondition to voting. This is because ‘Part of the Court’s role in [the] system is to defend its foundations. None is more important than free and fair elections.” (Kagan’s dissent at p.33).
In addition, there is no other institution that can adequately police partisan gerrymandering. The majority in Rucho admit that partisan gerrymandering can be distasteful and unjust, but insist that legislatures have the ability to pass laws to curb excessive partisan gerrymandering. However, the mitigatory nature of only prohibiting “excessive partisan gerrymandering” is unsatisfactory, as it also places the expectation on the same legislative bodies who are constituted by gerrymandering to take action against the problem (Rucho at page 31). This strategy is doomed to fail as ‘The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.’ (Kagan’s dissent in Rucho at page 30).
Whilst no method may be perfect, there are several feasible accounts of the role Courts should play stopping short of denying their involvement. Strategies such as mandating geometric testing through mathematic algorithms or implementing voter-determined districts would ensure fair representation and effectively undercut the various political motives surrounding partisan gerrymandering (Hardy, 2019). However, given the highly politicised nature of the current Court and the uncommonly high number of appointments during the single term of the last administration, it seems unlikely the Court will rise to meet this expectation.
Reference List:
Daley, D., 2021. Republicans are ‘cracking and packing’ voters to secure minority rule | David Daley. [online] The Guardian. Available at: <https://www.theguardian.com/commentisfree/2021/nov/17/republican-gerrymandering-worse-than-you-realize> [Accessed 26 November 2021].
Hardy, J. and Tausanovitch, A., 2021. How to Fix Gerrymandering. [online] CAP. Available at: <https://www.americanprogress.org/article/how-to-fix-gerrymandering/> [Accessed 18 November 2021].
Law.georgetown.edu. 2020. Gerrymandering Justiciability. [online] Available at: <https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/04/Gerrymandering-Justiciability.pdf> [Accessed 22 November 2021].
Lieb, D., 2016. Election 2016: gerrymandering benefited GOP, AP analysis shows. [online] Denver Post. Available at: <https://www.denverpost.com/2017/06/25/gerrymandering-2016-election/> [Accessed 25 November 2021].
McCarthy, N., 2009. Does Gerrymandering Cause Polarization?. [online] JSTOR. Available at: <https://www.jstor.org/stable/25548144?seq=1#metadata_info_tab_contents> [Accessed 21 November 2021].
Okonta, P., 2018. Race-Based Political Exclsion and Social Subjugation: Racial Gerrymandering as a Badge of Slavery. [online] Columbia Law. Available at: <http://hrlr.law.columbia.edu/files/2018/07/PatriciaOkontaRaceBasedPo.pdf> [Accessed 17 November 2021].
Roberts, S., 2021. Mathematicians are deploying algorithms to stop gerrymandering. [online] MIT Technology Review. Available at: <https://www.technologyreview.com/2021/08/12/1031567/mathematicians-algorithms-stop-gerrymandering/> [Accessed 24 November 2021].
Supremecourt.gov. 2021. About the Supreme Court. [online] Available at: <https://www.supremecourt.gov/about/about.aspx> [Accessed 12 November 2021].