In Abbott v. Perez, a 5-to-4 conservative majority on the Supreme Court decided that “the district court disregarded the presumption of legislative good faith and improperly reversed the burden of proof when it required the state to show a lack of discriminatory intent in adopting new districting plans; one of the challenged state house districts is an impermissible racial gerrymander.” Justice Samuel Alito (joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch) found that past discrimination by one set of lawmakers, is not evidence of new discrimination by a different lawmaking body. And so it’s up to the voters challenging maps that burden the rights of people of color to make the case that the new legislature intended to do just that. Alito calls this “the presumption of legislative good faith,” under which the government is given the benefit of the doubt and not required to “purge the bad intent of its predecessor.” “Past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful,” Alito writes. The justices threw out almost all of a ruling by a three-judge federal district court that would have invalidated the maps, agreeing with the lower court only that one state legislative district was a racial gerrymander. Today’s ruling means that elections this year will likely go forward using the existing maps.
This decision is a major blow for voting rights. For “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.” Wesberry v. Sanders 376 U.S. 1, 17–18 (1964). As President Lyndon Johnson said in his message that accompanied his request that Congress enact a voting rights bill, “In the world, America stands for-and works for-the right of all men to govern themselves through free, uninhibited elections. An ink bottle broken against an American Embassy, a fire set in an American library, an insult committed against the American flag, anywhere in the world, does far less injury to our country and our cause than the discriminatory denial of any American citizen at home to vote on the basis of race or color.” Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 277 (1999) To ensure that our citizens enjoy this precious right, the United States Constitution sets forth fundamental principles governing the franchise: equal suffrage based on race (15th Amend.) and poll tax prohibition (24th Amend.).
In a forceful closing paragraph Justice Sotomayor protested that the ruling “does great damage to” the right “to equal participation in our political processes.” “Not because it denies the existence of that right, but because it refuses its enforcement. The Court intervenes when no intervention is authorized and blinds itself to the overwhelming factual record below. It does all of this to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters.”
Gerrymandering is an example of politicians, whether congressional or judicial, rigging the system. To gerrymander is to manipulate the boundaries of an election district so as to advantage one party. Gerrymandering is usually done to benefit the party in power. Like slavery, gerrymandering is an American original sin. The word was coined as a way of criticizing Governor Gerry’s redrawing of the Massachusetts state senate election districts in 1812. Gerrymandering is in some states to the benefit of the Democrats and in others to the Republicans. Two principal tactics are used in gerrymandering: “cracking” (i.e. diluting the voting power of the opposing party’s supporters across many districts) and “packing” (concentrating the opposing party’s voting power in one district to reduce their voting power in other districts). The third tactic, shown in the top-left diagram in the diagrams to the right, is that of homogenization of all districts. Gerrymandering ends competitive elections!
Gerrymandering is effective because of the wasted vote effect. Wasted votes are votes that did not contribute to electing a candidate, either because they were in excess of the bare minimum needed for victory or because the candidate lost. By moving geographic boundaries, the incumbent party packs opposition voters into a few districts they will already win, wasting the extra votes. Other districts are more tightly constructed with the opposition party allowed a bare minority count, thereby wasting all the minority votes for the losing candidate. These districts constitute the majority of districts and are drawn to produce a result favoring the incumbent party.
In the era of mass incarceration, there has been discussion of prison gerrymandering. Prison-based gerrymandering has occurred in places such as New York when prisoners were counted as residents of a particular district, increasing the district’s population with non-voters when assigning political apportionment. This phenomenon violates the principle of one person, one vote (under the Equal Protection Clause of the Constitution, legislative voting districts must be the same in population size. The idea behind the rule is that one person’s voting power ought to be roughly equivalent to another person’s within the state.) announced in Baker v. Carr and culminating in 1964 with the case of Reynolds v. Sims because, although many prisoners come from (and return to) urban communities, they are counted as “residents” of the rural districts that contain large prisons, thereby artificially inflating the political representation in districts with prisons at the expense of voters in all other districts without prisons. Others contend that prisoners should not be counted as residents of their original districts when they do not reside there and are not legally eligible to vote. That is why the decision by the Supreme Court in Husted v. A. Philip Randolph Institute is politics clothed in law. In that case the Court said if you fail to cast a ballot, you can be removed from the voter rolls and denied your fundamental right to vote. This logic ignores Congress’s own statement when passing the voting rights act that people should not be removed “due to their failure to respond to a mailing.” This allows convicted felons who cannot vote will be removed from voter rolls even after their sentence is over and they have supposedly paid back their debt to society. To be clear, this system is aimed at the minority vote: a Reuters study found others in predominantly African American neighborhoods were purged at more than twice the rate of voters in predominantly white neighborhoods.
How gerrymandering is ruining democracy:
- Brings Out Partisan Extremes The most detrimental effect gerrymandering has on our political system is that it leads inevitably to polarization. Manipulating and stretching congressional districts pushes incumbents to the extremes of the political spectrum. Republicans have become more conservative and Democrats more liberal. Why does this happen? If an incumbent’s only fear is a primary challenge, his or her focus will be to maintain ideological purity, rather than pursue legislative pragmatism. When elected officials pay more attention to the primary, rather than the general election, they become more extreme and this naturally leads to gridlock. Consequently, the least productive Congresses in history have come in the past decade. According to The Pew Research Center the 113th Congress (2013-2014) was almost the least productive Congress in history, second only to the 112th Congress (2011-2012). America need reformers, not ideologues – statesmen, not panderers.
- Votes Don’t Matter Skewed district lines consolidates the power of the party in control and leaves voters with less accountable elected officials, with less pressure to solve the problems facing all voters.
- Tears Apart Communities and gives power to too few voters: Gerrymandering is to cheat designated groups in the power of their vote. One form of gerrymandering is to split a group, say a predominantly black neighborhood, between two districts, thereby reducing their block vote into a small minority in each district. Assume there is a disparity in geographical size of congressional districts. Also assume those large geographic districts are located in the most densely populated areas of the state. Usually such districts are urban and “packed” with Democratic voters. This is done to splinter the vote, ensuring the minor party (today the Democratic Party) a “safe seat” while making it nearly impossible for another Democrat to win in adjoining districts in which Democratic voters join with a large number of Republicans. This is called “cracking.” Adjoining districts become Republican strongholds which has led to an over representation of rural populations – even though majority of voters live in urban areas!
For instance, State legislatures have used gerrymandering along racial lines both to decrease and increase minority representation in state governments and congressional delegations. In the state of Ohio, a conversation between Republican officials was recorded that demonstrated that redistricting was being done to aid their political candidates. Furthermore, the discussions assessed race of voters as a factor in redistricting, because African-Americans had backed Democratic candidates. Republicans apparently removed approximately 13,000 African American voters from the district of Jim Raussen, a Republican candidate for the House of Representatives, in an attempt to tip the scales in what was once a competitive district for Democratic candidates.
The problem is easy to solve by taking the drawing of district boundaries out of the hands of self-interested politicians. In about twenty states, the legislatures have delegated some authority over the drawing of district lines to redistricting commissions. Some of these, however, are set up so as to still give the majority party final control. Six states have delegated the authority over state district borders to nonpartisan or bipartisan commissions. The authority over both state and congressional district borders has been delegated to bipartisan or nonpartisan commissions in only seven (or eight) states – Arizona, California, Hawaii, Iowa, Idaho, Montana, New Jersey and Washington. Essentially, America needs a federal law with three main components: a set of rules and principles for the drawing of district borders, nonpartisan redistricting commissions in each state, and a federal commission of oversight that would also serve as the institution of appeal.