It is often said that too much of anything can be bad for one’s health. If there is any indication from today's decision by the Supreme Court to hear arguments about the threat of partisan gerrymandering to the health of our democracy, politicians on both sides of the aisle should be worried about their growing and excessive use of this practice as a political weapon of choice to maintain political power at the expense of voters.
Gerrymandering is the practice by which politicians manipulate congressional and state legislative districts for their own partisan advantage. Gerrymandering is not new, but with the precision of today’s mapping technology, the effects are more acute than ever before.
That’s why a federal three-judge panel recently ruled in favor of 12 plaintiffs represented by a legal team including the Campaign Legal Center in the landmark case Gill v. Whitford, which challenged Wisconsin’s 2011 redistricting plan as an extreme partisan gerrymander.
In Wisconsin in 2011, legislative aides and consultants hired by the Republican majority in the legislature worked in a secret room in a private law firm, hidden from the public and the press, to manipulate the state assembly district lines in an effort to ensure Republican control for the next decade, irrespective of the will of voters. Their strategy paid off as Republicans gained 60 percent of the seats in the state assembly, despite receiving only 49 percent of the statewide vote in 2012. This means the majority was able to use the gerrymander to retain political power, contrary to the will of the voters.
In the majority decision for the three-judge panel, Kenneth Ripple — a judge appointed by President Reagan to the 7th U.S. Circuit Court of Appeals — found that Wisconsin’s 2011 State Assembly district map violates both the First Amendment and Fourteenth Amendment of the U.S. Constitution. Shortly following the panel’s decision, the state of Wisconsin appealed to the U.S. Supreme Court, setting the stage for one of the most consequential cases on the Supreme Court docket this year. Republicans are not the problem. Democrats practice the same tactics in other states, so supporters of both parties are deprived of their fair voice, just in different states.
In a healthy democracy, voters are supposed to be able to choose their representatives through elections. But when representatives get to draw their own district lines, legislators often choose their voters instead. When one political party has unified control of state government, voters in the opposite party are often effectively silenced with little to no chance of influencing policy in the foreseeable future. Voters, politicians, and our democracy all lose. This calculated practice, which undermines the power of voters, has gone on for far too long and must end.
Across the country we’re witnessing both Republicans and Democrats manipulating the system, taking power away from voters. In Illinois in 2016, for example, more than 60 percent of state legislative general elections were uncontested with Democratic incumbents facing no opposition. That same year, Democratic politicians stopped a citizen ballot initiative, supported by an overwhelming majority — 80.5 percent of Illinois voters — that would have created an independent commission to preside over the redistricting process.
Whether you’re a Democrat in Wisconsin or North Carolina or a Republican in Illinois or Maryland, politicians are effectively marginalizing your vote by drawing lines to keep hold of power. Looking at the big picture, all Americans are harmed by uncompetitive elections, not simply Democrats or Republicans. American voters of all parties are entitled to fair elections and nonpartisan redistricting. Self-interested politicians, who are incapable of policing their own partisanship, will not solve this problem on their own.
That is why the Supreme Court has an important role to play. In the two most recent high-profile cases on partisan gerrymandering taken up by the court, Vieth v. Jubelirer and LULAC v. Perry, a number of the justices signaled a willingness to embrace a legal standard for determining when partisan gerrymandering violates the Constitution.
However, the court has yet to establish this workable standard and determine “how much is too much?” when it comes to the partisan effects of redistricting. Without such a standard, partisan politicians will continue to warp the electoral process to keep themselves and their party in power. Partisan gerrymandering creates an unrepresentative democracy and encourages self-interested politics where politicians put party before country.
In deciding to hear Whitford, the Supreme Court has an opportunity to set a judicial standard for determining when partisan gerrymandering violates the Constitution. This case will be a pivotal moment for the court to put a stop to the practice that hurts citizens’ participation in democracy. If either party is to thrive, so must our democracy. Majorities come and go, but we need a long-term solution for one of democracy’s greatest ills.
Trevor Potter is president and founder of the Campaign Legal Center, a nonpartisan organization of election law and ethics experts, which is part of the legal team representing the 12 plaintiffs in Whitford. He is also head of the political law practice at the Washington firm Caplin & Drysdale. He previously served as the former Republican chairman of the U.S. Federal Election Commission.
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