Constitution Check: Is partisan gerrymandering beginning to get into legal trouble?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, explains how Monday’s Supreme Court ruling about gerrymandering has pointed the way for other states to take up the cause of challenging bitter and divisive partisanship.

THE STATEMENT AT ISSUE:

The Constitution “acts as a safeguard against manipulation of electoral rules by politicians and factions in the states to entrench themselves or place their interests above those of the electorate. As James Madison urged, ‘whenever the state legislatures had a favorite measure to carry, they would take care so to mould their [election] regulations as to favor the candidates they wished to succeed.’ …The problem Madison identified has hardly lessened over time. Conflict of interest is inherent when legislators draw district lines that they ultimately have to run in.”

– Excerpt from an opinion by Justice Ruth Bader Ginsburg, as the Supreme Court on Monday supported an effort to curb the problem of partisan gerrymandering by upholding an Arizona voter referendum that took congressional redistricting away from the state legislature and gave the task to an independent commission.

WE CHECKED THE CONSTITUTION, AND…

Ever since Elbridge Gerry two centuries ago drew up an election districting map for Massachusetts specifically to give his Democratic-Republican party an advantage at the polls, thereby giving birth to the phrase “partisan gerrymandering,” party-driven manipulation of the election process has been a problem for America.

It is particularly acute right now, when not many seats in the U.S. House of Representatives are open to genuine party competition, because state legislatures have managed to create a huge number of “safe” seats for their party’s candidates.   Both major parties, of course, are good at doing that, when they control state legislative chambers.

It used to be a rather clumsy process, resulting in very oddly-shaped districts as legislatures tried to fashion boundaries that would capture their loyal followers.   But, with the sophistication of computer technology and very refined Census tract figures, a state can be carved up to give one party a very significant electoral advantage without creating districts shaped like Gerry’s salamander.   That can even be done without violating the one-person, one-person vote principle – that is, the requirement that there can be no great difference in populations among districts.

A decade ago, the Supreme Court had a chance to do something about this problem, when it was asked to rule that such partisan manipulation was itself a violation of the guarantee of equal opportunity to win elections. The court, however, took a pass, concluding that it had no way to judge when partisanship in writing election laws was too partisan.   Justice Anthony M. Kennedy argued at the time that the court should keep looking for such a workable standard, but it has abandoned the effort.

Congress, naturally, is not going to do anything about this problem; it, indeed, perpetuates it. That leaves the issue to the states, and to the possibility that, at some point, civic minded citizens would begin to see that partisan gerrymandering was discouraging good candidates from even running, because the cause seemed hopeless for their party, and that the process was thus denying the citizens realistic and competitive choices.

Arizonans felt that way in 2000, and using their power of direct democracy – that is, the capacity of the voters to pass constitutional amendments through ballot measures – they enacted Proposition 106.   Apparently fed up with a series of redistricting debacles in the state, due – or so many thought – to partisanship, the voters yanked the congressional redistricting job away from the legislature and handed it to an independent, five-member commission.

The commission has no duty to pay any attention to what the legislature would like, and the districting maps it draws up are binding.

Predictably, the legislature fought back. It did not like the maps that the commission fashioned for House of Representatives seats after the 2010 Census, so it sued, claiming in federal court that the Constitution mandated that House districts be crafted only by the representative body of a state, the legislature. Their challenge lost in federal court, and they appealed to the Supreme Court.

The Justices split 5-to-4 in deciding the case on Monday, but the cause of partisan gerrymandering suffered a significant defeat under the majority opinion. Broadly interpreting the concept of what parts of state government constitute the lawmaking body, the decision declared that a state’s voters as a group qualify when they are acting in their state-prescribed role of direct legislators.

That, the majority said, was the meaning of the Elections Clause in the Constitution, which split up between Congress and the states the task of writing election procedures for federal officeholders. And that, it said, was the meaning of a federal law dealing with redistricting of the House of Representatives after each Census is taken.

Both sides of the court, the five-Justice majority and the four-Justice dissenting group, relied upon understandings they drew from Founding era documents and experiences. The majority’s view, of course, prevailed.

There are, as of now, only a handful of states that have turned the congressional redistricting process over, as Arizona did, to bipartisan or non-partisan commissions supposedly free of the partisanship that is endemic in the modern elected legislature.

Still, the new ruling has pointed the way for other states to take up the cause of challenging bitter and divisive partisanship, at least in the process of arranging future elections to the House. Given the wide partisan polarization of the House at present, it is not at all unlikely that the idea that the court has now endorsed would gain new adherents.

Many political observers understand, of course, that a part of the problem behind the partisan divide is the exaggerated influence of campaign finance in the federal election process; big money, it is plain, deepens the divide. And, as of now, there seems no chance that the Supreme Court is going to change its mind that this form of free-spending on campaigns is fully protected by the First Amendment’s free-speech clause.

But, as Arizona has now demonstrated, with the support of the nation’s highest court, there is more than one way to take on partisanship.