On Wednesday, the Supreme Court considered killing off the gerrymander — and temporized.
It shouldn’t. In most congressional races, democracy has gone missing. Roughly 40 of 435 seats are deemed competitive. In 2016, only eight incumbents lost. The average margin of victory was 37 percent.
A key factor is gerrymandering, practiced by partisan specialists armed with granular demographic data.
Every decade following the census, these vote-counting specialists rig congressional districts to minimize the parlous effects of democracy. After the Republican sweep of 2010, GOP-controlled legislatures redrew the maps of congressional districts, using technology and software with insidious artistry to cement Republican control.
It worked. In 2012 House races, Republicans won 1.5 million fewer votes than Democrats — and 33 more seats. In 2016, fewer than half the votes yielded Republicans another 14 seats.
According to the Brennan Center for Justice, GOP gerrymandering created a “durable majority” of 16 to 17 seats. In the swing states of North Carolina, Michigan, Ohio, Pennsylvania, and Wisconsin, Democrats have gained no seats since 2010. In the 17 states where Republicans drew the maps, their candidates won 53 percent of the vote — and 72 percent of the seats.
In North Carolina, 53 percent of the vote got the GOP 10 of 13 seats — ruefully, Republican state Rep. David Lewis said, “I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.” In 2012, 47 percent of the vote gained the GOP 60 of 99 seats in the Wisconsin state assembly. Envious, Maryland Democrats stacked a Republican district against a 10-term GOP incumbent – who then failed to reach 38 percent of the vote.
This tampering empowers extreme candidates, perpetuates incumbents, and strips the vote of meaning. The inevitable result — low turnout — further sickens democracy. But, traditionally, courts have worried about how to determine when redistricting became excessively partisan.
Now, more sophisticated mathematical analyses focus on “the efficiency gap”: districts drawn to produce “wasted votes” — artificially wide margins when compared with the voting populace. Thus armed, a federal court in North Carolina struck down the GOP’s blatant gerrymander. Its test was straightforward: Whether a map was intentionally drawn to benefit one party and handicap another; whether it achieved that purpose; and whether it had no legitimate justification. The GOP met that description with room to spare.
Similarly, a federal court determined that Wisconsin’s legislative map “was designed to make it more difficult for Democrats . . . to translate their votes into seats.” These cases made Republicans fearful about 2018. Steve Stivers, the head of the National Republican Congressional Committee, says bluntly: “After the redistricting in 2011, a lot of districts were shored up substantially. And it makes a difference.” Thus the GOP cynically argues that courts should await the 2020 Census.
Last fall, a reckoning loomed — if not for 2018, then beyond. The Supreme Court heard a Republican challenge to the ruling in Wisconsin — placing the North Carolina ruling on hold until it renders a decision. It then decided to hear another Republican challenge to the Democrats’ rotten borough in Maryland. At issue in both cases is whether partisan gerrymandering abridges the constitutional right to vote.
At the hearing in the Wisconsin case, Chief Justice John Roberts dismissed mathematical analyses as “gobbledygook.” His fellow conservatives — Clarence Thomas, Samuel Alito, and Neil Gorsuch — seemingly concur with Roberts that the court, which rendered Citizens United, should not address the “political question” of gerrymandering — ironically, for the good of its reputation. But Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan plainly disagree.
The apparent swing vote was Justice Anthony Kennedy. In 2004, he voted against a challenge to gerrymandering for fear there was no “workable standard.” But he is clearly concerned that gerrymandering burdens voters’ rights to be fairly represented — a point he raised in oral argument.
Then came Wednesday’s hearing regarding Maryland. Ginsburg and Sotomayor suggested that because a ruling would not affect 2018, a decision was pointless; Breyer suggested that the court reschedule both cases, plus the North Carolina decision, for this fall. One implication is that the preliminary vote on the Wisconsin case preserved the Republican gerrymander — potentially accelerating our devolution into a plutocracy sustained by sham elections.
Be very afraid. Citizens United took us far enough.
Richard North Patterson’s column appears regularly in the Globe. Follow him on Twitter @RicPatterson.