In his final months in office, President Ronald Reagan spoke out about the dangers to American democracy of partisan gerrymandering, calling it on one occasion “a great conflict of interest to ask men holding office, elected from districts, to change the lines of that district to fit the new population changes.”
Today, nearly 30 years later, it’s looking increasingly like this is the year the Supreme Court will finally rein in a gerrymandering practice that undermines a fundamental principle of American democracy: that all citizens’ votes count equally, irrespective of which party they back. We very much hope the Court does so.
Partisan gerrymandering has recently grown far more acute and brazen. This has occurred because of a new strategy to manipulate the entire state delegation, rather than just helping or hurting individual friends or foes; and computer technology advances that let officials precisely manipulate district lines to guarantee one party or another protracted dominance of the delegation, notwithstanding the popular vote. According to University of Chicago Law Professor Nick Stephanopoulos, four of the five most partisan state legislative maps in the last 45 years were drawn since 2010, as were seven of the 10 most partisan state congressional maps. Americans know it's getting worse, because it is.
On Wednesday, March 28 the Supreme Court will hear – for a second time this term – a case challenging the constitutionality of egregious partisan "bulk" gerrymandering, in this case by Democrats in Maryland.
Maryland's mapmakers deliberately drew the state’s congressional map to ensure the re-election of the state’s six Democratic incumbents, and manipulated the map to shift one of the two remainder districts held by Republicans into Democratic hands. That’s exactly what happened: in the very first election under the new map, ten-term Republican Rep. Roscoe Bartlett was defeated. A 6-2 delegation became 7-1, by packing Republicans into that remaining district.
The Supreme Court also this term heard a Wisconsin case on partisan gerrymandering, Gill v. Whitford, brought and argued by the Campaign Legal Center and co-counsel. In Wisconsin, the state assembly map was painstakingly drawn by Republican legislators and consultants to guarantee one-party control for the entire decade. Writing for the majority, Judge Kenneth Francis Ripple, a Reagan appeals court appointee, found that the Wisconsin map violated the First and Fourteenth Amendments.
In North Carolina and Pennsylvania, suits challenging hyper-partisan "bulk gerrymandering" maps also succeeded. In the former, a state where the partisan split is right down the middle, the Republican co-chair of the state's congressional redistricting committee explained that lawmakers directed a partisan consultant to draw the state congressional map to elect 10 Republicans and 3 Democrats “because [he did] not believe it’s possible to draw a map with 11 Republicans and two Democrats.” In January 2018, a bipartisan panel of federal judges unanimously found the congressional map to be an unconstitutional partisan gerrymander.
In Pennsylvania, the state Supreme Court interpreted the Pennsylvania Constitution to bar the state’s congressional map, which had given Republicans 13 of 18 seats in an election in which more votes overall were cast for Democrats. After Pennsylvania lawmakers failed to submit a suitable new map, the Court crafted remedial districts to treat voters of both major parties fairly. On March 19, the Supreme Court denied a stay application, and a federal court dismissed a challenge to that remedial plan. This means Pennsylvania voters will be able to vote under a fair congressional map in 2018.
Americans across the country are sick of legislators, and the powerful interests lurking behind them, manipulating district lines for partisan advantage at their expense. In a comprehensive bipartisan survey, an overwhelming majority (71 percent to 15 percent) of respondents wanted the Supreme Court to place limits on lawmakers’ ability to manipulate voting maps. This includes 80 percent of Democrats, 68 percent of Independents and 65 percent of Republicans.
The principle at issue here could hardly be more fundamental. The Declaration of Independence provides that our government derives “just power” from “the consent of the governed.” Unrestrained partisan gerrymandering directly contravenes the "consent of the governed," because voters no longer choose their elected officials; instead, elected officials manipulate district lines to cabin opposition voters into hyper-concentrated districts, pulling those opposition voters out of the statewide pool, and thus guarantee one party’s hold on power -- notwithstanding the popular vote. This "bulk gerrymandering" practice is easy to detect, and easy to cure.
American democracy is today being tested in many ways. The notion of restraint, or virtue, or duty to our country, has in many quarters gone out the window. Voters are justifiably frustrated and disillusioned. The Supreme Court can’t repair all the damage at once, nor should it be expected to. But the Court can and should take upon itself to advance the common good by guaranteeing that, irrespective of political party, citizens' voices -- and votes -- count in a meaningful way.
Whitehouse is a member of the Judiciary Committee and Potter is president of the Campaign Legal Center.