Should Representatives Choose Their Voters?

Member Discrimination, Law 0 Comments

Gerrymandering, the controversial, undemocratic practice of representatives choosing their voters, rather than voters choosing their representatives, is once again in the country’s headlines.

For much of United States history, the practice of gerrymandering was used to dilute or otherwise exclude the potential influence of minority (mostly African-American) voting districts so that whites would remain the majority everywhere, even when they weren’t physically located in a particular area. Today, gerrymandering been banned when it is carried out in explicitly racial terms, of course, but so long as it remains implicit instead, and is treated as merely a matter of political parties, it is apparently completely fine.

That might be about to change, however, though not for reasons of racial justice.

By June 2019, the Supreme Court is expected to decide whether it will ban the practice of politicians and parties simply redrawing electoral district boundaries as they please, or whether it will repeat prior conclusions that it just cannot stop the practice in a fair way to all, thereby allowing it to continue.

Following from the 2011 Wisconsin-based case (Gill v. Whitford), in which it was decided that nothing could be done about Republicans gerrymandering Democrats, the current cases facing the Supreme Court stem from North Carolina and Maryland. In both instances one party was unduly favored over another due to redistricting. What makes this situation unique, however, is that in this case, both Democrats and Republicans were negatively affected, rather than just Democrats alone.

What that means is that we might well see a swing vote emerge from an unexpected, usually-conservative source, much as happened with Justice Anthony Kennedy’s deciding vote in favor of same-sex marriage in 2015. This time around, it may turn out to be the newly-minted, still-controversial Justice Brett Kavanaugh who plays that role. Kavanaugh recently stated publicly that he is “not going to dispute” that partisan gerrymandering is a significant problem in the US. 

That should give us a little hope, but for the time being, nothing more.

The Problem

The gerrymandering problem is about racial justice and it’s about democracy. Let us consider the origin of the term first, so that we can come to an adequate solution.

The term “gerrymandering” is the result of a strange conjunction: the last name of early-19th century Massachusetts Governor Elbridge “Gerry” (who was also James Madison’s Vice-President), conjoined with the name of a sometimes cannibalistic, lizard-like creature, the salamander. The terms were first conflated to produce “gerrymander” due to Governor Gerry’s bizarre redrawing of the state map to enable his preferred electoral outcome in the 1812 election; a process which left a shape so unusual in one Boston district, that it was said to resemble the salamander.

Needless to say, though the term stuck, the initial sense of injustice did not. That is, until recently, when Republicans have been affected by it too.

Gerrymandering, whether racially or party-based, derives from two different types of strategies. Both are intended to ensure that a favored party wins a particular election through the redrawing of electoral boundaries. These two strategies are termed cracking and packing. Cracking divides the opposition between multiple districts so they can’t form a unified majority, while packing unites the opposition in a single district, so that all others can be carried by the preferred party. Both have been used to stop racial equality and democracy.

Predictably, just as with opposition to other measures intended to expand voter participation (such as automatic voter registration), opposition to ending gerrymandering practices has tended to prevail in red states, as well. Depending on which party is in power, this has included swing states, especially those that have been governed by Republicans over the course of the past decade (Wisconsin, Michigan, Ohio). As soon as Republicans gain power, one of the first acts they have engaged in is to ensure they’ll be able to retain the power they’ve gained.

However, it has also been the case in Democratic areas, where urban zones are divided so as to prevent suburbs and rural areas from predominating, as has occurred in Chicago, or in the most recent cases, Maryland. For the most part though, Republican willingness to exploit gerrymandering has greatly outweighed the timidity of Democrats, who often want to be seen as proceeding ethically, even if they lose.

The issue facing the nation currently is that while explicitly racially-based gerrymandering has been ruled illegal by the Supreme Court, party-based gerrymandering has not been.

Today, the issue being considered by the Supreme Court is a question of majorities and minorities. This applies to both Democrats and Republicans, and that’s the main reason Justice Kavanaugh is suddenly paying attention, though one wouldn’t otherwise expect him to.

The Solution

Ironically, the argument against gerrymandering would have been appreciated by Madison, one of the main sources of the Constitution’s “balance of powers”, which was supposed to be balanced in a way that would benefit both majority and minority groups, without having to deal with the undue influence of an overwhelming majority “faction”. The fact that Governor Gerry, the origin of the “gerry” in “gerrymandering” was Madison’s Vice-President is no small paradox, though it is, thankfully, a resolvable one.

The solution to all of this couldn’t be simpler: revert gerrymandering back to county lines in every state, and if states don’t want to do it, then deny them federal funds until they do.

The next sitting Democratic President could accomplish this by Executive Order, or it could be passed by Congress at the Federal level. If Trump remains in power, it is fairly unlikely that he’d sign such a bill, but perhaps he actually would, given that Republicans can also lose in swing states that Democrats have had success in, such as Wisconsin, Michigan, and Ohio.

Another approach would be to pressure the Supreme Court to rule against gerrymandering between now and June, hoping that Justice Kavanaugh becomes the swing vote needed to achieve it.

Barring that, a final option would be to hope that state governments would “choose” to outlaw it, as has occurred to some degree in Washington state, where a five-member committee composed of two Republicans, two Democrats, and a nonvoting member redraw election boundaries conjointly once per decade, following the Census.

The danger in this approach though is that more conservative states won’t go along with it willingly.

Thus, we need to start from the Federal level, building upon more moderate, piecemeal successes in states like Washington, which have already set a precedent for how this could occur at the national level.

The time to act is now.

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