The Fix is In
A fundamental aspect of democracy is that citizens have the ability to control their government. We most frequently exercise this power through our elected officials; it is our right to vote that makes the American government ours. That’s why partisan gerrymandering—or state legislatures’ practice of creating voting districts to ensure victory for one political party—is particularly damaging to our democracy. Gerrymandering prevents the possibility of self-government by limiting the opposition’s ability to win elections.
Given the robust freedoms of American society, one wouldn’t think that combating gerrymandering would be difficult. Indeed, gerrymandering conflicts with several constitutional rights. It infringes upon the First Amendment, by hinging the efficacy of one’s vote on whether one has certain political opinions. It also violates the Fourteenth Amendment’s Equal Protection Clause—that all citizens must be treated equally under the law. The second section of the Fourteenth Amendment is also relevant. According to this clause, if a state suppresses a citizen’s ability to vote “in any way” (my emphasis), it is punished by decreasing the number of that state’s representatives in Congress, in proportion to the number of citizens who have been docked from the polls. So, if states want to keep their current Congressional representatives, all citizens included in the census must be given the chance to cast a meaningful vote.
In short, the Supreme Court would seem to have ample ammunition for striking down gerrymandered districts. To date, however, that’s not quite what has happened. Instead, federal courts are sharply divided as to whether they have the power to strike down gerrymandered districts at all. Several gerrymandering cases now lie in the national spotlight. On the one hand, in North Carolina, a federal court found a gerrymandered election plan unconstitutional. In Pennsylvania, however, the federal court refused to do so. The Pennsylvania case has grown especially bitter. After the local Circuit Court upheld Pennsylvania’s gerrymandered map, the state Supreme Court invalidated the map as violating the Pennsylvania state constitution. In response, representative Cris Dush from the state legislature lashed out, calling to impeach the state judges and claiming that the court “overstep[ped] its authority” in a way that constituted an inexcusable abuse of office.
Why do some judges refuse to declare districts unconstitutional? As The New York Times reports, the members of the Fourth Circuit Court, D. Brooks Smith and Patty Schwartz, feel that they have no power to strike down Pennsylvania’s election map, despite the fact that it was carefully gerrymandered to favor Republican candidates. Although they give different reasons for their decisions, both agree that federal courts have no right to meddle in state districting plans. Smith claims that because the Constitution’s elections clause specifically mentions Congress’s power to regulate districts, it implies that only Congress, not the courts, can put a check on state districting power. On the other hand, Schwartz argues that federal courts can’t strike down a gerrymandered district unless they employ a clear standard as to what constitutes unacceptable gerrymandering.
Both of these arguments cast a long shadow. They were first voiced in 2004 by Justice Antonin Scalia, in the Supreme Court case Vieth v. Jubelirer. In Vieth, Scalia reversed a 1986 Supreme Court decision, Davis v. Bandemer, which had found that it was the Supreme Court’s job to strike down unconstitutionally gerrymandered districts. Vieth disagreed, claiming that drawing election districts was purely a “political question,” given over to the prerogative of states. Accordingly, striking down an election district was inconsistent with the role of a judge, who may only interpret given statutes and standards “in the manner traditional for English and American courts.” Judging that a district is so gerrymandered as to be unconstitutional, Scalia argued, requires too much of a judge’s own political value judgement, unless he is employing an existing congressional standard.
On the surface, Scalia has a point. It is the nature of an election district that it compromises the voices of some of its members; there are many acceptable ways in which districts can be drawn, each involving certain political compromises. And in a democracy, the choices of which political compromises to make should rest with elected officials, not an appointed judge. Ultimately, however, Scalia’s understanding of what falls under the purview of a judge is at odds with the basic purpose of the Supreme Court—not to make specific political decisions, but to eliminate those that are incompatible with the tenets of the Constitution.
Alexander Hamilton’s explanation of the Supreme Court’s function in Federalist 78 makes this clear. The federal courts, he wrote, “were designed to be an intermediate body between the people and the legislature, in order… to keep the latter within the limits assigned to their authority.” These limits include the need to preserve all citizens’ constitutional rights, including Fourteenth Amendment voting rights. Far from requiring a pre-enumerated standard, Hamilton writes that it is the judge’s job to “ascertain [the Constitution’s] meaning, as well as the meaning of any particular act proceeding from the legislative body”—like a districting map—to see if there is an “irreconcilable variance between the two.” When such a variance exists, the Constitution must prevail, “the will of the people to the will of their agents.” In other words, it is the Supreme Court’s job to decide whether an act of a legislature violates the Constitution. It need not wait for Congress to tell it which standards determine a constitutional violation, or for one of the other coordinate branches of government to correct the wrong.
To defend his textualist approach to judging, Scalia appealed to Baker v. Carr, a case that enumerated standards for which questions are political rather than judicial. According to Baker, a case isn’t “justiciable”—or under the jurisdiction of the Court—if it lacks “discoverable and manageable standards for resolving it.” Scalia totes this quote as a support for his theory that a judge may only be an interpreter of given rules—that no matter how gross the effects of a gerrymander, a judge must wait for congressionally approved “manageable standards” before he can act. Arguably, however, and as Bandemer understood, limiting a judge to rule interpretation was never Baker’s intent. Baker meant to rule out as political subjective questions, for which no standard could possibly exist—questions like whether to build a highway, or what the tax rate should be. It did not mean to say that, until a standard is developed, every constitutional question is a political question. On the contrary, as Hamilton explained, it is the job of the Supreme Court to decide when a law is in violation of the Constitution in any particular case, even absent existing standards. A gross political gerrymander is certainly such a case.
There is hope that Vieth may soon be reversed. Two gerrymandering cases, from Maryland and Wisconsin, are currently on the docket of the Supreme Court. How the Court decides those gerrymandering cases will likely resolve the cases in Pennsylvania and North Carolina as well, and set a precedent for whether gerrymandering suits have a place in federal court. We can hope that the Supreme Court will return to Bandemer and answer in the affirmative.
Although the Supreme Court need not wait for a congressional standard to strike down districts, Congress has a role to play in the abolition of gerrymandering. When striking down districts as unconstitutional, federal courts should ideally not be the ones to create state redistricting plans themselves. Understandably, court imposed plans create a great deal of local resentment. Even more importantly, they circumvent the many legitimate ways in which election districts might be drawn, and encroach upon powers that properly belong to elected legislatures. Perhaps the path forward here lies in what Justice Stephen Breyer called “conversational lawmaking”; by declaring gerrymandered election districts unconstitutional, courts can pressure state governments into creating constitutionally acceptable districts. They can also pressure Congress into passing common sense legislation reforming the districting process.
A good place to start would be with some basic procedural reforms. Congress could require election districts to be drawn by bipartisan committees or by independent panels, which have been shown to yield fairer election results. In a computer simulation in 2013, Sam Wang of the Princeton Election Consortium found that only California’s election breakdown of Democratic to Republican candidates precisely matched those predicted for a non-gerrymandered state. Significantly, as Wang points out, California’s election districts were drawn by an independent Citizens Redistricting Committee. Wang and others have also suggested quantitative metrics for determining just how gerrymandered districts are, any of which could potentially be adopted as a congressional standard. But for now, instead of waiting for Congress to legislate a model for gerrymandering reform, it is imperative that the Supreme Court takes action to preserve our democracy.
Yitzchak Fried received his B.A. in political science from Yeshiva University in May 2017. Since then, he has worked as a high school English teacher, and as a contributing writer at WAX Digital Magazine. While much of his recent work has been interview-based community journalism, he also enjoys writing about culture and progressive politics. To see what issues he's thinking about, follow him on Twitter.