Viewpoint: Gerrymandering and magical thinking

by John March


Last month the Supreme Court held that even extreme gerrymandering is not unconstitutional, or at least not subject to any remedy that can be fashioned by the courts. Redistricting, the court held, is exclusively the province of the legislative branch, and that is where any remedy or reform must take place.

Do you see the fallacy?

Assume that you live in a state where the electorate is evenly divided between registered Republicans and registered Democrats, but the Republicans, for historical reasons, enjoy a slight edge in the state legislature. At the next re-districting the Republicans draw new electoral maps, tipping the scales in their favor to produce a safely Republican majority after the next election. And that majority, having no need to compromise, enacts a series of laws that are anathema to the 50 percent of the state’s voters who are Democrats.

The Democrats, politically speaking, have been shut out of the process. No matter how they cast their ballots, the system has been designed to dilute their votes and preserve a Republican majority. Thanks to the re-districting, Democrats can vote for Democrats on election day, but the legislature will remain in Republican hands.

And this is the forum where, according to the Supreme Court, the remedy for gerrymandering must be fashioned if it is to be fashioned at all. The court, if asked to intervene, will turn a deaf ear.

In effect, the Supreme Court has said to the Democrats in this hypothetical, “You must pursue a political remedy and not a judicial remedy. If you don’t like the current district maps, elect different legislators who will draw maps more to your liking.”

But of course that’s exactly the problem. The redistricting has been designed precisely to eliminate such a possibility. The court is saying, in effect, “You must ask a gerrymandered legislature to overturn gerrymandering.” Plainly, the political remedy imagined by the court is, in practice, no remedy at all. Which at this point in time, when a majority of state legislatures are led by Republicans, seems to suit the current court majority very well.

Chief Justice John Roberts, who wrote the gerrymandering opinion, claims to be the court’s most ardent First Amendment defender, but he appears untroubled by the First Amendment issue squarely presented in this case: Of what value is freedom of speech if elected officials can contrive, with the court’s blessing, to make your vote meaningless?

Political speech, the kind of speech that, historically, has been most protected by the court, is here thoroughly devalued. “You can vote,” the court says, “but if your vote, by design, makes no difference, don’t imagine that we can help you.”

The court has previously held that redistricting which plainly (i.e., intentionally) disadvantages a racial minority is unconstitutional. In such cases the court agrees that it must order new district maps to correct an obvious injustice. But how is partisan gerrymandering any different, at bottom, from racial gerrymandering? Both are designed to preserve political power at the expense of basic fairness. But only in this case has the court’s Republican majority, in a 5-4 decision, engaged in magical thinking.

John March lives in Seal Harbor.

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