"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations..."
‒ U.S. Constitution, Article 1, Section 4
Don't hold your breath, but there's a chance the United States Supreme Court may strike down what has now become the single most flagrantly partisan, anti-democratic aspect of our politics:
Flagrant gerrymandering. Drawing electoral boundaries, that is, to give one party a totally unfair partisan advantage.
On June 19, the nation’s highest court announced it would consider whether partisan gerrymandering violates the U.S. Constitution. The court has previously ruled against racially-based gerrymandering plans, but has never overturned a politically distorted legislative map.
The court last spoke on this issue in 2004, when it declined on a 5-4 vote to get involved in what has in fact has been seen as a "political thicket" reserved for the states to regulate.
But in that case, (Vieth v. Jubelirer) Justice Anthony Kennedy, who was the deciding vote, said he could imagine voting to strike down a gerrymandered plan, if someone could demonstrate a “manageable standard by which to measure the effect.”
Now, in a new case, Gill v. Whitford, foes of political gerrymandering say they think they finally have the standard he was seeking.
The case stems from a particularly biased redistricting map for the Wisconsin state assembly drawn up in 2011 after Republicans gained complete control over the state's government.
Legislators created a plan that reliably converts a relatively narrow total vote differential between the two major parties in Wisconsin into enormous GOP legislative majorities – in every election.
In 2012, for instance, Democrats claimed slightly more than 51 percent of the total votes cast for the state assembly, the lower house of the Wisconsin legislature. Nevertheless, Republicans won 60 of the Assembly's 99 seats.
But that Wisconsin law was overturned this spring by a federal judge who ruled that it was drawn with a discriminatory intent, had a discriminatory effect, and was improper.
Incidentally, there's no reason to think Democrats wouldn't have tried some gerrymandering of their own had they been in complete control of state government in Wisconsin ‒ or Michigan. In past years and in other states, they've done exactly that.
Here's how the process works. Legislative districts ‒ both in the U.S. House of Representatives and in state legislatures ‒ are redrawn every 10 years based on the release of U.S. census figures.
The idea is to account for changes in population and to assure that districts contain roughly the same number of voters.
Of course, gerrymandering has been made easier for other than purely partisan reasons. Increasingly, for example, people are moving to places with like-minded neighbors – a phenomenon known as "the big sort."
That includes political leanings. As our political parties have become more polarized, partisans increasingly like to live near others who see the world as they do, and geographic redistricting plans will inevitably reflect this tendency.
But if that phenomenon leads to sort of a “natural gerrymander,” American politics is also shot through with deliberately stacked districts. A Stanford political scientist found that over more than four decades, 41 states failed to enact fair ‒ i.e. competitive ‒ new districts. Michigan, of course, was one.
My old friend, John Dingell, who served a record 59 years in the U.S. House, once told me he thought maybe as many as half of all congressional seats were gerrymandered to benefit a particular party or candidate.
This practice, used for decades by both parties, invites all sorts of political abuses and poses profound moral objections:
It stacks the deck, resulting in elections that do not represent the true voting preferences among all citizens.
It violates the "one person, one vote" standard that underlies a common sense understanding of fair elections. It unfairly denies minority parties representation in the political process and it savagely devalues the votes of Independents.
Because politicians elected from gerrymandered districts are essentially immune from being turned out of office by the other party, they are uninterested in governing "by the people and for the people."
The net result is an increase in power for extreme movements that have no interest in paying attention to the majority wishes of what should be their natural constituents.
Not surprisingly, I believe much of the fearsome partisanship that so dominates our politics is the direct result of gerrymandered districts. That’s because we now allow our lawmakers to select the voters they wish to represent – rather than asking the voters to pick their candidate.
The political payoffs for such decisions are likely to be enormous ‒ and carefully hidden. Gerrymandering here in Michigan is nothing to sneeze at. In fact, the gerrymandering accomplished in 2011 by state Republicans is often praised as an example of "effective" (i.e., partisan) redistricting.
Nicholas Stephanopoulos, a law professor at the University of Chicago who helped develop the mathematical voting standard used in the Wisconsin case, says Michigan "is just as extreme an example as Wisconsin."
He’s an expert on the so-called “packing and cracking” technique, in which – when Republicans are in charge of redistricting, as they have been in both states – attempts are made to pack most Democratic voters into a minority of solidly Democratic districts. Others are dispersed among GOP-majority districts in a way that they’ll always be a minority.
The goal is to produce a majority of districts that vote, say, 55 percent GOP, and a minority of districts that are 70 percent Democratic or more. That means close to no more or less closely matched, or “swing” districts at all.
President Trump carried Michigan last year by only 10,704 votes, yet Republicans captured nine of 14 congressional seats. In 2014, Republicans barely topped Democrats in total statewide votes, but won 27 out of 38 seats in the state senate. In the races for the state house, Michigan Democrats carried the statewide vote by half of one percent, yet Republicans claimed 63 of 110 seats in the state house.
What's a good solution? One is to ask citizens to do the redistricting rather than let politicians pick their own preferred voters. The Supreme Court has affirmed Arizona's independent redistricting commission, ruling that ultimate authority for drawing boundaries rests with a state's citizens and not legislative bodies elected to serve the people.
Even though it's hard to imagine a group of ordinary citizens being entirely free of political bias, their political careers (and thus their self-interest) are not at stake in redistricting. Other states, including Iowa, have experimented with some success with citizen redistricting commissions.
The stakes involved in the Supreme Court gerrymandering decision are perfectly enormous. They could order nothing less than a cleansing upheaval of the most corrupt part of our political system. I'm not a lawyer, and I have no idea how the Court will decide. But at one point in my life I ran a congressional office in Washington, so I've seen first hand the corrosive results of gerrymandering.
At the very least, attention at long, long last has been drawn to the evil Pandora's Box of gerrymandering. The high court may decide to leave today's terrible system in place, but the genie of political fairness is loose on the landscape.
Whatever happens with the laws governing gerrymandering in Wisconsin, that state certainly won't be the last.