On the Gerrymandering Decision: Don't Mourn, Organize--and "Rise Up"

Thursdays decision by the Supreme Court declared that partisan gerrymandering is “non-justiciable.”  Federal courts have been ordered to look the other way, regardless of the egregiousness of the attempt by entrenched political elites to choose their voters and thus maintain themselves in power.  Almost all “progressive” groups, plus more non-partisan “good government” groups rightly bewail the decision.  As Justice Kagan writes in dissent, the widespread use of ever-more sophisticated techniques of gerrymandering is a direct threat to our self-description as a democracy.  But it is not that all of her conservative Republican colleagues necessarily disagree with her about the cancerous threat posed by partisan gerrymandering. Instead, they say, with some plausibility, that it is impossible for the judiciary to figure out proper standards, which in turn could be effectively enforced, of “fair districting.”  Gerrymandering requires full-scale entrance into Felix Frankfurter's "political thicket," and one can understand why some judges would be wary to do so.  The Court most definitely did not say that partisan gerrymandering is desirable or, more to the point, even that it is not unconstitutional.  Instead, this is one of those parts of the Constitution that must be enforced by other parts of the political system, including, ultimately, ordinary citizens.   

Although one can certainly criticize Chief Justice Roberts’s decision and embrace Justice Kagan’s eloquent dissent, one should realize that a decision adopting her view would not in fact have provided a genuine cure for what ails us as a political system.  Instead, the Court would undoubtedly have set down somewhat opaque standards that would have served mainly to generate further litigation that would take years to resolve. One can imagine that the architects of the most obviously egregious cases, as in North Carolina, one of the beneficiaries of the Supreme Court’s withdrawal from the battlefield, might have been reined in, but it is illusory to believe that a genuine reapportionment “revolution” would have ensued.  In many ways, a decision going the other way would have simply dampened any on-going debate about the kinds of structural reforms that are necessary in the mistaken belief that the federal judiciary could be trusted to provide adequate solutions. That is, alas, false.  The kinds of reforms that are truly necessary must be done by “We the People” ourselves through effective political organization and movements.

One can already see this happening at the state level, where aroused citizens have taken advantage of the “initiative and referendum” to engage in significant and welcome reform.  This has happened in states ranging from California and Arizona to Maine.  In a truly scandalous (and, fortunately, only dissenting) opinion, Roberts would have held that the desire by Arizona voters to place redistricting in the hands of a (relatively) non-partisan commission instead of leaving it up to rabidly self-interested partisan legislatures was itself unconstitutional, because the word "legislature" has a very specific meaning.  Given his assurances, sincere or not, that there are alternatives to federal litigation to meet the challenge of partisan gerrymandering, perhaps he is signaling a change of heart on this point, which would be most welcome.  If he adheres to his previous view, and gets the support of Brett Kavanaugh to provide the fifth vote to overrule the earlier Arizona case, then he would legitimately be described as the most truly awful Chief Justice since Roger Taney.

Unfortunately, many states emulate the national Constitution in rejecting any real role for “direct democracy.” In those states, one must hope that state courts enforcing their own constitutions—the United States constitution is one of only 51 in the entire United States, and the other 50 constitutions all differ from the United States Constitution in important ways—to preclude partisan gerrymandering.  This has happened, for example, in Pennsylvania.

But, ultimately, it will take an energized country-wide movement willing to ask fundamental questions about how best to organize our electoral system in the 21^stcentury.  To take an absolutely easy example, most Americans since 1944 have agreed that the electoral college should go; it has not because of both the inordinate difficulty of amending the national constitution (unlike many state constitutions) coupled with the all-important fact that there has been no genuine national mobilization of an aroused public demanding action.  With regard to the issues raised by electing members of state and national legislatures, the topic of the gerrymandering case decided on Thursday, we should be having a national discussion of whether we are well served today by our rigorous adherence to a congressional statute passed in 1842, and reaffirmed by Congress in 1967, that requires single-member congressional districts.  Just as problematic is that almost all of these districts elect their single members by a so-called “first-past-the-post” system giving victory to whoever comes in first, even if that is distinctly less than a majority of the overall vote. The latter is not required; Maine has adopted a voting system that assures that the winner will in fact be able to claim majority support.  It worked last year to elect a Democrat over his Republican opponent who had received more votes in the first round of counting the votes.  

There are many reasons for the cultural power of Lin-Manuel Miranda’s depiction of Alexander Hamilton and his compatriots.  One of them is the repeated emphasis on the necessity of American patriots to “rise up” against what British tyranny.  Our present system of electing public officials has its own elements of tyranny.  Now that we know that the federal courts will be no help whatsoever in responding to one of its most obvious manifestations, it is time that the public realize their own responsibilities to protect what the Declaration of Independence ordained as government “by the consent of the governed” or Lincoln in the Gettysburg Address as government "by the people."  If political “leaders” won’t respond, then “We the People” should exercise our right under Article V of the Constitution to demand a new constitutional convention that would do what the Supreme Court refuses to do—safeguard our democracy. Nothing less than the legitimacy of the American system of government is at stake.