As we are all experiencing, every day there’s some new shock from the Trump-Pence administration. Much of it is disgraceful. Yet we cannot let the tragedy of Donald Trump’s presidency distract us from the broader fight to restore and protect the legitimacy of our democracy.
That legitimacy comes from the voters, and their influence is being systematically devalued by gerrymandering. A bedrock of our democratic legitimacy could rise or fall with the US supreme court’s decision as to whether to hear a case and finally rule on the constitutionality of hyper-partisan gerrymandering.
The court recently reaffirmed the illegality of racial gerrymandering in the case of North Carolina. But to protect fully our democratic legitimacy, the court must go further and prohibit gerrymandering done to cement one-party rule.
Over the past several years, a ground war has been conducted against our democratic legitimacy at the state level by state political parties intent on minimizing the power of certain voters. Their goal: near permanent one-party rule.
This practice of hyper-partisan gerrymandering is destroying our democracy by reverse-engineering the election process. Rather than voters choosing their representatives, representatives choose their voters.
I have reluctantly come to the view that the long-term solution is to take redistricting decisions away from elected officials, either by requiring that maps be drawn using non-partisan independent analysis, or putting redistricting entirely in the hands of independent commissions. I have previously supported legislative redistricting before these brutal tactics were employed.
A short-term solution, however, lies with the US supreme court, which has an opportunity to ban this illegitimate political ploy by agreeing to hear Gill v Whitford, and ruling that Wisconsin’s hyper-gerrymandered map is unconstitutional. The court could almost single-handedly reinstate the influence of voters by doing this.
In Gill v Whitford, Wisconsin voters are arguing that the state’s redistricting map violates their first amendment rights and the equal protection clause in the 14th amendment. Using census data from 2010, the Wisconsin Republican party redrew the state district map so as to essentially guarantee that it wins a majority of seats in the state legislature. The district lines make no sense other than diluting the influence of Democratic voters and inflating the value of Republican voters.
Locking in a Republican majority in Wisconsin took some real creativity, and utter disregard for what makes our democracy legitimate. Democratic and Republican voters are not generally clustered into partisan areas of Wisconsin, but more spread out across the state.
And yet, with roughly 50% of the statewide vote in 2012 and 2014, the Republican party was able to lock in a solid majority in the state assembly, with 60 out of 99 seats in 2012, and 63 out of 99 seats in 2014. These outcomes are only possible with a district map that silences certain voters and gives a megaphone to others.
This delegitimization also affects the resulting loyalties of the elected officials. In partisan gerrymandered districts, an elected official knows that the greatest threat to re-election is a primary challenger, which leads to hyper-loyalty to the party bosses or their financial backers, regardless of their constituency or personal convictions.
Representatives do not need to answer to constituents, hold town halls, or even campaign very hard, so long as they stay in the good graces of the state party and in particular their post-Citizens United big money backers.
The supreme court has never before ruled a state’s redistricting plan unconstitutional because of partisan gerrymandering. While the court is often loathe to overturn its own precedent, it has done so in the past when our country has learned hard lessons from its own history. “Separate but equal” is a prime example. This may seem like a hyperbolic comparison, but it is less so when you consider the motives behind and impact of gerrymandering.
In these sorts of “party politics” cases, the court often defers to the political process, and in theory to the voters who have the power to change something if they oppose it. Solving the problem of gerrymandering, however, is extremely difficult for the voters.
In order for voters to make a statement about gerrymandering, they would have to elect new representatives, most likely from the opposite party. This is the very scenario that gerrymandering is designed to prevent. The Court should assert itself and be a check on out-of-control legislative bodies.
Our democracy’s legitimacy once again hangs in the balance when the Supreme Court considers whether to take this case. The Court cannot shirk this and demur to politicians. Our democratic system is being sorely tested.
Wisconsin Republicans argue that if their map is unconstitutional, so are many other states’ maps. They may be right, but that is no reason to avoid this case. It is actually all the more reason to take it. We need a new precedent, and our democratic legitimacy requires it.