In June 2017, we wrote a blog titled “Gerrymandering: Will It Ever End?” That post provided updates on Chapter 5 (“How to Cherry-pick Voters”) of the first edition of Fault Lines in the Constitution, which had just gone to print the week before! Even though the second edition is just out, we’re addressing the issue again because, apparently, the answer to the question we posed over two years ago is “nope.” A major reason is that the US Supreme Court handed down a decision in June 2019 that opens the door to both more shenanigans and more actions by legislatures, courts, and citizens—from now on, at the state level.
Gerrymandering is the process of redrawing the borders of a congressional district to favor the members of one political party or racial or ethnic group. We give lots of examples in Fault Lines of where, when, and how this practice has been carried out. The most recent—and probably final—Supreme Court case on the matter, Rucho v. Common Cause, was based on complaints about partisan gerrymandering that favored Democrats in Maryland and Republicans in North Carolina. The plaintiffs argued that district lines were drawn in ways that denied the citizens of these states their constitutional rights to fair and equal treatment as voters. For instance, although voters in North Carolina are about evenly split between the two parties, congressional maps drawn by mostly Republican state legislators handed ten of that state’s thirteen seats in the House of Representatives to Republicans.
And, Maryland sent only one Republican to the House along with seven Democrats.
The court did not discuss the constitutionality of the issues. Instead, in an opinion written by Chief Justice John Roberts, the majority of the court ruled that, although partisan gerrymandering is a threat to the American democratic system, the practice is “non-justiciable.” That is, the judiciary (the court system) is not well-equipped to resolve the issues because there are no agreed-upon standards for what counts as a fair system of drawing boundary lines. They need to be determined by institutions other than federal courts.
As we point out in Fault Lines in the Constitution, one way to resolve the issue would be for Congress to repeal a law it passed in 1842 that requires single-member congressional districts. That could be replaced with a law that, for example, requires states with three or more representatives to elect them by proportional representation from multimember districts. This method, a form of which is used in Germany and New Zealand, would make it unlikely that one party could dominate an entire state.
Another approach would be for state supreme courts to rule that their state constitution limits the ability of the state legislature to draw politically biased districts. In fact, in response to the US Supreme Court’s decision in 2019, Common Cause, a nonprofit organization, has already filed a suit arguing that redistricting in North Carolina violates the state constitution. Moreover, as Roberts noted in his opinion, many states, including California and Arizona, have taken control of redistricting away from state legislators by passing referenda that give the responsibility to commissions that are politically neutral. This remedy is available, though, only in the states that allow initiatives and referendums by the citizenry. Almost half of the states do not.
There are many fault lines that leave us with a flawed system for electing our representatives. At the outset, the Framers of the Constitution did not address how political districts are to be drawn. Nor, unlike some other countries, such as Australia and Canada, have we given courts or special electoral commissions the responsibility to monitor and control the ability of one party to prevent the election of members of the other party.
How would you alter our Constitution to ensure fair representation in our representative democracy?
I’m quite a fan of multi-member, at large, proportional representation. But I think the Supreme court is right that imposing it isn’t within their authority. Their job is enforcing written law, not imposing good policy that isn’t mandated by such law.
Even ruling that legislative districts had to be equal in population was more than a little bit presumptuous, when states were simply replicating the model the Constitution actually mandates, rather than forbids, at the federal level.
Of course, there’s a bit of a path dependency problem in reaching proportional representation, given all these single member, first past the post legislatures exercising power. I think that, realistically, we need a constitutional convention to overcome their self-interest.
Thanks for your comment, Brett. My co-author agrees that we need a constitutional convention.