Opinion

Opinion | Charles Fried

It’s unfair and unjust. So why has gerrymandering lasted this long?

lucy naland for the boston globe

LAST MONTH, the Supreme Court agreed to hear arguments in Gill v. Whitford, a case in which Wisconsin seeks to overturn a decision of a lower court holding that the state assembly district map is an unconstitutional partisan gerrymander. Wisconsin’s effort should fail. The lower court got it right. Although Democratic and Republican voters in Wisconsin are about evenly divided, the state legislative districts are so manipulated that Republicans gained 60 percent of the seats in the assembly, despite receiving less than 49 percent of the statewide vote in 2012 — a result that has remained largely unchanged in subsequent elections. And it is that gerrymandered assembly that Wisconsin wants to keep in office so it can draw a new map for itself and for the state’s members of Congress in 2021.

The Supreme Court has considered political gerrymandering cases several times before, but it has yet to take a stand. With this case, it might decide that such a travesty of republican government violates the Constitution. It’s about time.

Partisan gerrymanders have long been defended by the circular argument that since political districts are drawn by politicians in a political process, the result should benefit whichever political party has the upper hand at the moment. That fallacious reasoning gave us decades of congressional and state legislative districts with gross population disparities — usually between dense urban and sparsely populated rural units.

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Famously, Los Angeles County, with its six million inhabitants, had the same number of state senators — one — as did three sparsely populated mountainous counties that together had under 15,000 people. In the 1962 ruling in Baker v. Carr, the Supreme Court finally addressed these gross inequalities, ignoring Justice Felix Frankfurter’s warning to his colleagues not to enter “this political thicket.” According to Frankfurter, the courts should not interfere with a task that the very institutions infected with undemocratic inequality had always claimed for themselves. He questioned whether courts could develop standards for judging political fairness. The judiciary had little difficulty arriving at such criteria and has hewed to them ever since.

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Only somewhat more difficult was the task of evaluating “racial gerrymanders,” in which the numbers in each district were equal but the boundaries were manipulated so that, say, black or Latino voters were distributed with the intention of systematically depriving them of fair representation. Here again, beginning in 1993, in Shaw v. Reno, the “political thicket” objection to judicial intervention was waved aside, and every election season sees vigorous and probing remedies for this kind of unfair manipulation.

That has left the pure political gerrymander, where — as in Wisconsin — Republicans or Democrats are intentionally distributed so that their political representation bears no relation to their voting strength. And thanks to sophisticated data analysis and computer technology it is possible to achieve such results without recourse to bizarre configurations and geographically or historically unfamiliar boundaries. As one North Carolina legislator said, “We draw the [congressional] maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

In the pure political gerrymander, as the court found in the Wisconsin case, the majority party in the legislature deliberately and single-mindedly sets about to make permanent its present electoral advantage. That is a betrayal of the Constitution’s guarantee of a republican form of government set forth in Article IV, Section 4. The so-called “Guarantee Clause” represents perhaps the most fundamental commitment of our nation and the ground on which we fought for our independence: that ours was to be a republic that would be a form of government where the people rule by their regular exercise of democratic franchise, and that no entrenched minority, no hereditary aristocracy (Article I, section 9, “no title of nobility”) must be allowed to displace that republican form of government.

It has long been understood that the Guarantee Clause does not offer an independent cause of action by which to bring to court undemocratic practices of state government. But it surely should help to dissuade the Supreme Court from lending credence to Frankfurter’s discredited political thicket argument, when substantial First and 14th Amendment (free association and equal protection) rights are at stake.

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The plaintiffs in the Wisconsin case, like plaintiffs before them in one-person, one-vote apportionment cases and racial gerrymanders, rest their case on the Equal Protection clause and the First Amendment, and the court has many times over found that these raise justiciable claims and consistently granted relief — to the permanent improvement of our political landscape.

Partisan gerrymandering systematically allows a one-time legislative majority to draw maps that nearly ensure they retain political power, irrespective of whether the citizenry votes differently in subsequent elections, in a wholly unequal and unrepublican manner.

To be sure, there are difficulties peculiar to this constitutional violation, as there were to the numerical and racial violations, when they were first contemplated. The courts have worked these out into a practicable body of doctrine. So will they have to do in the political gerrymander cases, but such difficulties have not and must not be a reason for letting stand the egregious and deliberate violation of individual rights and democratic principles the court found in this case.

Charles Fried, a professor at Harvard Law School, was US solicitor general from 1985 to 1989. He is on the board of the Campaign Legal Center, whose lawyers represent the plaintiffs in this case.