The Dangerous Extremists We’re Facing, Part 2

Article 4, Section 4 of the Constitution says:

The United States shall guarantee to every State in this Union a Republican Form of Government . . .

They weren’t referring to a government run by the Republican Party (there weren’t any political parties in America in 1789). They meant that every state should be a republic, not a monarchy. We, the people, along with our elected representatives, should hold supreme power.

The 14th Amendment, Section 1 says that laws should treat us all equally:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . nor deny to any person within its jurisdiction the equal protection of the laws.

Taking those two requirements together, it seems to say that people who live in the same state should be treated equally when it comes to electing their representatives. A state’s laws should not discriminate between voters.

However, Article 1, Section 4 of the Constitution gives state legislatures power to set the borders of congressional districts (and, by implication, of state legislative districts as well). This allows state legislatures to decide which voters live in a particular district, although Congress can overrule how those decisions are made:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . .

This creates a situation the authors of the Constitution probably didn’t foresee. A state’s legislators are responsible for determining the boundaries of their own legislative districts, meaning they decide which voters will be responsible for electing them. They are also responsible for setting the boundaries of congressional districts, the areas in the state that elect particular members of the House of Representatives (senators are elected by the whole state).

Gerrymandering has been the result. Legislators design legislative and congressional districts to give themselves and their parties as much power as possible. Voters who tend to vote for the other party are corralled into certain districts, meaning that those districts are guaranteed to elect members of the other party. But it also means there will be relatively few of those lopsided districts.

The upshot is that most districts in a gerrymandered state will have voters who reliably elect members of the party that controls the state legislature. Suppose, for example, a district in Houston, Texas, might always give tremendous victories (80% of the vote) to a Democrat, while two districts near Houston always give smaller, but still reliable, 60% victories to Republicans. This means that even if Democratic candidates get 50% of the total vote in those three districts, Republicans will almost always win two of them and the Democrats will only win one. In a nutshell, allowing legislators to design legislative districts allows them to pick their voters, when the citizens of a republic are supposed to pick their legislators.

That’s obviously not fair. The voters in those three districts in Texas aren’t being treated equally. Practically speaking, the Democrats who live in those districts will never be able to elect more than one Democrat to the state legislature or the House of Representatives, while the equal number of Republicans who live in the same districts will be able to elect two Republicans.

But wait! Congress could change the rules (such as where the district boundaries are) so that the three elections would be competitive. Sometimes one party would win more seats; sometimes the other party would. Except that the very same legislators are responsible for setting the boundaries for Congressional districts. The result is that, in the example above, gerrymandering would allow the state legislature to arrange the boundaries so that more Republicans are guaranteed to win elections, even if the region is equally divided between Republicans and Democrats. Why would a gerrymandered Congress use its authority to undo the gerrymandering that helped get many of its members elected? And even if the House of Representatives agreed to do something about it, the Senate probably wouldn’t, since the Senate is the bastion of minority rule (given the existence of the Senate filibuster and the fact that the Constitution gives two senators to every state, even the smallest or most rural that frequently vote Republican).

But we have federal courts to intervene! The Supreme Court is ultimately responsible for making sure the nation’s laws at both the state and federal level are constitutional. Given the republican (small-r) government guarantee in Article 1, and the equal protection clause in the 14th Amendment, the courts could fix the gerrymandering problem.

Well, the Supreme Court could, but that’s not what the Republican majority on the Court decided two years ago. From NPR:

In a 5-4 decision along . . . ideological lines, the Supreme Court ruled that partisan redistricting is a political question — not reviewable by federal courts — and that those courts can’t judge if extreme gerrymandering violates the Constitution.

The ruling puts the onus on the legislative branch, and on individual states, to police redistricting efforts.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Chief Justice Roberts wrote for the conservative [i.e. reactionary] majority. 

Roberts noted that excessive partisanship in the drawing of districts does lead to results that “reasonably seem unjust,” but he said that does not mean it is the court’s responsibility to find a solution.

To which Elena Kagan, appointed to the Court by a Democrat, responded:

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation. The partisan gerrymanders in these cases [before the Court] deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.

These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

And checking them is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering
claims. . . . They limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process.

But yes, the standards used here do allow—as well they should—judicial intervention in the worst-of-the-worst cases of democratic subversion,
causing blatant constitutional harms. In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. In giving such gerrymanders a pass from judicial review, the
majority goes tragically wrong.

In sum, state legislators are allowed to rig elections, the Supreme Court says it’s up to Congress to stop them and Congress won’t, not unless enough Democrats are elected to state legislatures and Congress, but that’s unlikely because Republican state legislatures have rigged the game.  

Jamelle Bouie of The New York Times summarizes the current situation:

Not content to simply count on the traditional midterm swing against the president’s party, Republicans are set to gerrymander their way to a House majority next year.

Last week, North Carolina’s Republican-controlled statehouse passed a new map that would, in an evenly divided electorate, give it 10 of the state’s 14 congressional seats. To overcome the gerrymander and win a bare majority of seats, according to the Princeton Gerrymandering Project, Democrats would have to win an unattainably large supermajority of votes.

A proposed Republican gerrymander in Ohio would leave Democrats with two seats out of 15 — or around 13 percent of the total — in a state that went 53-45 for T____ in 2020.

It is true that Democrats have pursued their own aggressive gerrymanders in Maryland and Illinois, but it is also true that the Democratic Party is committed, through its voting rights bills, to ending partisan gerrymandering altogether.

The larger context of the Republican Party’s attempt to gerrymander itself into a House majority is its successful effort to gerrymander itself into long-term control of state legislatures across the country. In Michigan, Wisconsin, Pennsylvania and other states, Republicans have built legislative majorities sturdy enough to withstand all but the most crushing “blue wave.”

And in the age of D___ T___, they are using their majorities to seize control of election administration in states all over the country, on the basis of an outlandish but still influential claim that the Constitution gives sovereign power over elections to state legislatures [Note: which it doesn’t, according to Article 1, Section 4 of the Constitution].

These are the dangerous extremists we’re facing.