Cross-posted on The Daily News
Tuesday’s arguments in the U.S. Supreme Court’s blockbuster partisan-gerrymandering case should give voters who are fed up with overly aggressive drawing of district lines — most voters in the country, that is — plenty of reasons to be optimistic. The justices were active and engaged, clearly thinking hard about how to address a pressing issue that’s undermining our democracy.
A ruling from the court that bars extreme partisan gerrymandering would go a long way toward undoing the dysfunction that’s gumming up our legislatures and restoring some basic accountability for our lawmakers. That ruling would be an instant landmark, like the cases that gave us — sometimes famously, sometimes infamously — “one-person, one-vote,” “separate-is-not-equal” and “corporations are people.”
But if the court is going to take such a significant step to fix our democracy, it also should help the public understand why the Constitution requires it to act. That was the gist of a line of questions Chief Justice John Roberts asked during the argument: If the court rules against gerrymandering, he wondered, will the “intelligent man on the street” understand what principles the Court is vindicating, or will it all be such a muddle that she will suspect the decision stemmed from some sort of political bias?
Fortunately, this case is practically screaming for the court to say something that will be easy for everyone to grasp and accept: It is wrong — and unconstitutional — for legislators to use their positions to lock in their own power. That’s called entrenchment, and the Supreme Court must prevent it. Period.
Politicians should not be allowed to rig the system by purposefully drawing lines that guarantee their side always wins, even if they lose the voters’ support. And they should not be able to rig it so the other side can never win a majority of the seats even with a majority of the votes.This is not a political idea; it’s about the basic democratic fairness the First Amendment and the Equal Protection Clause of the Constitution are supposed to protect.
For years and for very good reason, the vast majority of Americans polled has opposed partisan gerrymandering. A 2013 Harris poll saw only 2% of adults conclude that line-drawing should be done by “state legislatures, with (the) majority party having the most say in the process.”
That’s because people know nothing good comes from legislators drawing their own lines. In that same poll, 70% of Democrats, 63% of Republicans, and 61% of independents agreed “that redrawing districts is often used to take power away from American voters.”
The public wants the court to act. A recent survey by Lake Research Partners and WPA Intelligence shows that a supermajority of those polled (71%) support the court stepping in to place limits on the practice.
The public should also understand that courts can identify where entrenchment exists. Courts routinely are tasked with identifying when a person or a legislative body has acted with a bad intent and when they have succeeded in bringing about the bad result they intended.
They do this in fraud cases (“Did the person intend to defraud the other person?”), cases of price-fixing, or, closer to home, cases of race discrimination in the redistricting process (several of which the Court resolved just this past year in favor of plaintiffs challenging unfair maps). Courts using these basic concepts to suss out badly gerrymandered maps wouldn’t be unusual.
The map before the Justices this week — Wisconsin’s General Assembly map — is a case in point. Evidence of bad intent is all over this case: The leaders of the Republican caucus sent a team of consultants and legislative aides to an off-site “map room,” where they worked in secret for four months; the mapmakers boxed Democratic legislators out of the process; they used statistics to ensure that Republicans would hold a majority in any foreseeable electoral scenario; they kept tweaking the draft maps to maximize the seats they’d win; and they planned to tell legislators that their maps would “determine who’s here 10 years from now.”
In short, they intended to lock in a Republican majority for a decade.
By all lights, they succeeded, winning 60 of 99 General Assembly seats in 2012 with only 48.6% of the vote and holding a majority through every election since.
Anyone with a good view of this purple state with a one-note legislature will understand what’s going on.
Roberts was right to be concerned that Americans maintain their faith in our democracy, and not begin seeing the court as just another partisan player.
But as attorney Paul Smith made clear when he argued for Wisconsin’s voters, the best way for the Court to foster that faith isn’t to let the status quo stand. To the contrary: If the Court remains quiet, 2021’s national redistricting will see a flood of the kind of extreme gerrymandering that’s leeching away at the public’s belief in the power of its votes and the accountability of its legislators.
If the court is looking to protect its legitimacy and the integrity of our democracy, then it must limit partisan gerrymandering. And, in the process, articulate and affirm the basic constitutional values the public intuitively understands.