This is not how democracy is supposed to work.
In North Carolina in 2016, the GOP state legislator in charge of drawing congressional districts brazenly admitted that he drew a map that would reliably produce 10 Republican and 3 Democratic seats because “I think electing Republicans is better than electing Democrats.” Too bad if voters in this closely divided state thought that question was best decided by them: Republicans have held 10 of the 13 seats ever since.
In 2011, Martin O’Malley, then the governor of Maryland, set out to “create a map that was more favorable for Democrats over the next 10 years.” His operatives accomplished this by twisting its Sixth Congressional District inside-out, with the goal of locking down control of seven of the state’s congressional seats. They only needed to shift 10,000 people to account for population changes. They designed a safe seat by shipping 360,000 voters out instead.
Now the Supreme Court says this mockery of democracy, this intentional entrenchment of political power, elections be damned, is just fine. In a crushing decision for voting rights Thursday, the five conservative justices slammed the doors of the federal courts shut to all future questions of partisan gerrymandering.
In doing so, they’ve ensured an unfettered orgy of partisan gerrymandering when the next round begins in 2021. And they have eliminated a crucial pathway for citizens to fight for fair maps and the once-agreed-upon notion that all power springs from the people and requires the consent of the governed.
Chief Justice John Roberts, writing on behalf of a 5-4 court, ruled that partisan gerrymandering is a political issue beyond the ability of the courts to adjudicate.
Roberts has long been skeptical that tools exist for federal courts to determine how much politics is too much politics when it comes to redistricting. He has derided various academic models as “sociological gobbledygook” and defended map-making as a legislative function best left to elected leaders. If voters don’t like it, they can elect someone else.
The problem is that gerrymandering has made that impossible in countless state legislative and congressional districts nationwide.
The court ruling is at odds with the facts, and with multiple bipartisan panels of federal judges nationwide that have insisted they do have the tools to protect representative democracy against politicians determined to abuse their mapmaking authority and entrench themselves in power.
The ruling comes just as new technologies make it possible to see through a partisan gerrymader. In North Carolina, for example, a Duke University mathematician used the state’s legal redistricting standards to draw 24,518 simulated redistricting plans from a probability distribution of every possible statewide map. He found that a congressional delegation of 10 Republicans and 3 Democrats occurred in less than 0.7 percent of the plans — and that, almost overwhelmingly, every neutral map showed either a 7-6 or 8-5 advantage for either party. The GOP edge had nothing to do with statewide geography, and everything to do with surgically crafted district lines. Bipartisan panels of federal judges have used similar evidence to identify wild partisan outliers and declare maps in Ohio, Wisconsin, and Michigan unconstitutional.
The court had a special opportunity here to restore a fundamental American right to citizens: the ability to fairly and equally participate in our politics, to choose their own representatives, to cast a vote that matters. Instead, it did worse than shrug. Roberts and his majority suggested that citizens pursue ballot initiatives and noted that several democracy initiatives won in 2018. Yes, but gerrymandered legislatures in several of those states have sought almost immediately to unravel the will of the people.
The justices suggested that voters could pursue independent commissions; the problem there, however, is that Roberts issued a stinging dissent on their constitutionality in a 2015 case from Arizona. And he mentioned the myriad anti-gerrymandering bills introduced in Congress and state legislatures and suggested reformers could follow that route. Most of those bills, of course, have not actually passed, as Justice Elena Kagan noted in her dissent, for the simple reasons that politicians, especially those from safe districts, have little incentive to reform the system themselves.
Partisan gerrymandering imperils the very notion of democracy. Today’s turbocharged technological gerrymanders insulate representatives from the people. The court’s shameful decision has made it ever more difficult for all of us to fight back.
David Daley is the author of the national bestseller “Ratf**kd: Why Your Vote Doesn’t Count.”