California Forum

Supreme Court should take opportunity to end partisan gerrymandering

FILE - In this Feb. 16, 2016, file photo, Republican state Sens. Dan Soucek, left, and Brent Jackson, right, review historical maps during The Senate Redistricting Committee for the 2016 Extra Session in the Legislative Office Building at the N.C. General Assembly, in Raleigh, N.C. Federal judges ruled Tuesday, Jan. 9, 2018, that North Carolina’s congressional district map drawn by legislative Republicans is illegally gerrymandered because of excessive partisanship that gave GOP a rock-solid advantage for most seats and must quickly be redone. (Corey Lowenstein/The News & Observer via AP, File)
FILE - In this Feb. 16, 2016, file photo, Republican state Sens. Dan Soucek, left, and Brent Jackson, right, review historical maps during The Senate Redistricting Committee for the 2016 Extra Session in the Legislative Office Building at the N.C. General Assembly, in Raleigh, N.C. Federal judges ruled Tuesday, Jan. 9, 2018, that North Carolina’s congressional district map drawn by legislative Republicans is illegally gerrymandered because of excessive partisanship that gave GOP a rock-solid advantage for most seats and must quickly be redone. (Corey Lowenstein/The News & Observer via AP, File) AP

It is time for the Supreme Court to end partisan gerrymandering, in which the controlling political party in a state draws election districts to maximize the party’s safe seats. The court recently granted review in cases from North Carolina and Maryland challenging the constitutionality of gerrymandering. The cases, which will be heard in March, give the court the chance to protect the democratic process.

Partisan gerrymandering is nothing new. The practice is named for Massachusetts Governor Elbridge Gerry, who in 1812 signed a bill that redrew state senate election districts to benefit his Democratic-Republican Party. Today’s sophisticated computer programs and other new techniques make gerrymandering more effective than ever before.

In North Carolina, a purple state that leans red, Republicans won a slight majority in the state Legislature in 2010 and drew election districts that gave them super-majorities in both houses.

Republicans used what they called “partisan advantage” criteria when they redrew the maps, specifically seeking 10 districts for Republicans and three for Democrats. They succeeded. The statewide vote tally for members of Congress was nearly tied in the 2016 election, but Republicans won 10 of 13 races.

Both parties engage in the practice when they are in control. In Maryland, a Democratically controlled state legislature drew a congressional district to elect a Democrat. It is objectionable no matter who is doing it.

Opinion

The Supreme Court has said partisan gerrymandering is “incompatible with democratic principles.” Voters are supposed to choose their elected officials; gerrymandering lets elected officials choose their voters. As Justice Elena Kagan said last year, “only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches.”

Even Justice Antonin Scalia, who wrote the opinion that partisan gerrymandering cannot be challenged in the federal courts, referenced “the incompatibility of severe partisan gerrymanders with democratic principles.”

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Erwin Chemerinsky

Unfortunately, up until now, the Supreme Court has refused to deal with this serious threat to democratic governance. In Vieth v. Jubelirer, in 2004, the court, 5-4, dismissed a challenge to partisan gerrymandering, saying it had no criteria for deciding when gerrymandering violates the Constitution.

Last year, the court had before it a case from Wisconsin with facts similar to the North Carolina case. Republicans won 52 percent of votes cast for the state legislature but drew districts to give the party control of a disproportionate number of seats. The court ruled unanimously in June that the plaintiffs had not proven they lived in gerrymandered districts and thus had not shown the personal injury required to sue in federal court.

There is strong non-partisan support for eliminating gerrymandering. According to a Harris Poll, “over seven in ten Americans believe that those who stand to benefit from redrawing congressional districts should not have a say in how they are redrawn.”

California and Arizona are among a minority of states that have created independent, citizen-led commissions to draw election districts after the U.S. Census every 10 years.

The Supreme Court should hold that challenges to gerrymandering can be heard in the federal courts and explain that redistricting is unconstitutional when it disproportionately favors a political party with no explanation besides partisanship. This is a chance for the court to take a huge step to help make our democratic process work.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.
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