Choosing who votes

October 25, 2017 GMT

When legislators redraw voting districts, voting is turned on its head. Instead of voters choosing their legislators, the legislators choose their voters. This process of redrawing electoral districts to benefit the legislators of one political party over another is called partisan gerrymandering. And both political parties do it.

The name “gerrymandering” derives from Massachusetts governor Elbridge Gerry, who in 1812 redrew an election district so grotesque and salamander-like as to coin the term.

Although politicians have been gerrymandering since at least the early 1800s, the practice has recently reached a fever pitch. In the 2016 elections for the House of Representatives, the average electoral margin of victory was 37.1 percent. Of 435 contests, a margin of 5 percent or less arose in only 17.

Such landslide elections, insuring that those in power remain so, might be expected of autocratic nations that are democracies in name only, not here. But it is hard to deny the facts. National polls show 10 to 15 percent approval of Congress, but only eight of 435 House seats turned over in 2016.

Perhaps most telling, Americans do not want legislators drawing electoral maps. In Virginia, one study showed 74 percent supported districting lines drawn by an independent board rather than state legislators. Even voters who benefited from gerrymandering rejected it. Voters rejected gerrymandering across several demographics, including age, race and gender. These studies illustrate gerrymandering’s central dilemma: Those responsible for resisting it are those who most directly benefit from it. Legislators, in short, have little incentive to temper self-interest in redistricting. No law counterbalances the temptation of assured reelection and a manufactured party majority.

With legislators unwilling to forbear, the possibility of reform has fallen to the courts. The Supreme Court says that excessive gerrymandering violates the Constitution in theory. But the Court refuses to decide gerrymandering claims, insisting that it is not the Court’s responsibility. Disputes about redistricting, according to the Court, should be handled by legislators or some other government office.

As a result, Gerrymandering has persisted largely because of legislative self-interest and judicial abdication. The Court’s silence, however, will soon be tested. For the first time in more than 30 years, a federal court broke silence and struck down a state’s redistricting map. The court held that the state’s gerrymandered districts violated the Constitution. The Supreme Court has granted review, heard argument and will decide this term whether it is proper for the judiciary to decide gerrymandering claims.

Most commentators predict that four justices will vote to reform the gerrymandering problem, while four justices will vote against court intervention. That leaves Justice Anthony Kennedy smack in the middle. Historically, Kennedy has been slow to impose a court-made solution upon gerrymandering, but he has explicitly kept the door open should the right opportunity for court action arise.

That question, to my mind, has a ready answer. Courts validly intervene when they do so to ensure democracy’s proper functioning. This is not a question of the court favoring Democrats or Republicans. This is a question of representative government. Historically, the Court has intervened to protect the constitutional right to vote. The Court has intervened to ensure that votes were properly counted and not diluted by stuffed ballot boxes. The Court has intervened to scrutinize voting restrictions, including poll taxes, literacy tests, property ownership, and photo identification. In so doing, the Court has stressed that “the right of suffrage is a fundamental matter in a free and democratic society,” and that “any infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”

Gerrymandering is just such an infringement. It cuts at the heart of the right to vote. It must be carefully and meticulously scrutinized. Doing so is one of the Court’s central responsibilities, one that the Court will hopefully take to heart this term as it considers once again gerrymandering’s lawfulness.

McKay Cunningham lives in Boise and is an Associate Professor at Concordia University School of Law.