Gerrymandering: Most Important Case Since 1819 Regarding Structure of Our Government

By 
Lorraine Boyd
The Daily Record

“Gerrymandering is the single most serious threat to the structure of our government, to our democracy.”

Michael G. Fenner, a Constitutional law professor at Creighton University School of Law, made that bold statement at the annual Omaha Bar Association’s “Lunch with Fenner” in February. Many others agree, although there are both pros and cons to the issue.

Just what is gerrymandering, and specifically, partisan gerrymandering?

Named after Elbridge Gerry, the Massachusetts governor who tried to gain a partisan edge by redistricting the state legislature in 1812, gerrymandering is one of the few “dark arts” within politics openly embraced by politicians. Despite its critics and legal challenges, gerrymandering has endured.

Redistricting is done every 10 years after the U.S. Census to ensure that congressional, legislative and state board districts include roughly the same number of people. When redistricting is done – by state legislators – with an eye to create political advantage to one party or the other, it becomes partisan gerrymandering. One result is sometimes districts with outrageous borders.

The Supreme Court agreed to hear the case of Gill v. Whitford, which concerns partisan gerrymandering in Wisconsin. Democratic voters there say gerrymandering the voting districts has given Republicans too much power and violates the Constitution. It will be the first time that the Supreme Court will evaluate partisan redistricting based on the First Amendment’s freedom of association clause in addition to the Equal Protection Clause.

The Court heard oral arguments in October 2017 and their ruling is expected next month. At that time, the Court agreed to hear the merits of another partisan gerrymandering case, Benisek v. Lamone, which is related to the 2011 redistricting of Maryland’s 6th Congressional district. Oral arguments were heard by the court March 28, 2018.

When the Supreme Court last addressed partisan gerrymandering in detail, all nine justices agreed that “an excessive injection of politics” into the redistricting process violates the Constitution. The Court splintered, however, on two pivotal issues: how to know when an injection of politics is excessive, and who should decide.

Historically, the Court has been reluctant to get involved in the issue, seeing it as a local function, centered in the Legislative branch of government, not the Judicial branch. But they have made an exception now, and the decision is expected to hinge on swing-voter Justice Anthony M. Kennedy.

Heather K. Gerken, the J. Skelly Wright Professor of Law at Yale Law School, wrote on VOX.com, “The justices are highly sensitive about giving the impression that nine unelected people are overriding the decisions of a democratically elected legislature.”

Locally, there have been some concerns about gerrymandering in Nebraska, but by and large, the members of the officially nonpartisan Unicameral agree they worked together in 2011.

Republicans today hold 31 out of 49 legislative seats and the Governor’s Office.

Depending on the results of the 2018 election, Republicans could have the ability to cement that edge by drawing even fewer majority-Democratic districts in the Legislature. The next redistricting will take place after the 2020 Census. Those elected in 2018 and 2020 will draw the maps.

Fenner said districts were meant to be drawn to reflect diversity, with neither party operating in the extreme. “Diverse groups of people live in districts. Candidates had to reflect that diversity, had to moderate. Neither of the two political parties was extreme. Candidates clustered in the middle. They could get things done, could compromise.

“Today, the Democrats and the Republications are a little like the Palestinians and the Jews. Extreme Democrats and extreme Republicans were gerrymandered. Now the candidates have to appeal to the extremes.”

Fenner noted that the Massachusetts District that Gerry initially drew “looked like a salamander.”

Something similar happened in Tuskegee, Ala. “It was basically a square city. African Americans were not allowed to vote. Then, when the Civil Rights Act was passed in 1957 giving them the vote, the new district drawn excluded all but four or five African Americans. Then they created a 28-sided district without one single Caucasian. They ‘fenced Negroes’ out of town, violating the 15th Amendment.”

Fenner called out other gerrymandered districts, such as in South Carolina, Texas, North Carolina, California, Illinois, Maryland and Pennsylvania – as well as Wisconsin – which sought to maintain control in the legislature, Fenner said.

“Political gerrymandering comes in two forms: 1) Cram the opposing party in one district; 2) Divide minority party into many districts, creating safe seats.

“Where there used to be policy debates and proxy battles, now there is one big tribal conflict.

“Once gerrymandering is in place it is hard to change. It tends to move candidates to the extreme wing of both parties. To win, they just have to appeal to the base.

“The biggest step we can take to get back to normal politics is to put a stop to partisan gerrymandering. Some states have done this on their own. [Arizona appointed an independent commission.] There are lots of recognizable geometric states.”

Voters v. Legislators

Fenner’s key point: “Should voters select legislators? Or should legislators select voters? It’s clearly the former. It’s a core principal of our democracy. … The opposite subverts government.”

He said gerrymandering violates the structure of the Constitution. “We don’t have the same kind of government the founders envisioned. … It’s a violation of voters’ fundamental right to have their vote count. The problem with drawing partisan districts is that some voters end up with wasted votes. … It denies some voters the right to have a chance [for their vote to count]. It’s a Constitutional rough equivalency of the vote count – of every person’s vote.

“The problem with these state statutes and the way they draw the districts is that you end up with wasted votes and with some votes counting more than others. Coupled with equal protection of the law, this is a state act of unequal treatment that disadvantages one political party and does so intentionally in order for the advantaged party to gain and maintain control of the legislature. It’s political party discrimination.” He added that there are also free speech and freedom of association arguments.

Palma Joy Strand, a professor of law in the department of Interdisciplinary Studies at Creighton University, wrote a paper published on Slate.com entitled “Time to Protect Our Democracy.”

In it, she made the case against partisan gerrymandering.

She noted that in Gill v. Whitford, Wisconsin argued that partisan gerrymandering is not “justiciable” – that this type of districting decision is not subject to judicial oversight.

The court held more than 30 years ago in Davis v. Bandemer, however, that partisan gerrymandering challenges are, in fact, justiciable.

“That opinion, which I worked on as a clerk for Justice Byron White, provides crucial insight into the court’s choices in this case, which has the potential to revolutionize our political system. If the court follows the precedent and logic of Justice White, it will recognize that the time has come to rein in partisan gerrymandering, which has run amok in the years since the court issued its Davis opinion.”

Strand noted that Justice White wrote: “[U]nconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political system as a whole.”

In Favor of Gerrymandering

In the interest of fairness, Fenner added: “Here are some arguments in favor of gerrymandering: 1) There are no judicially manageable standards by which courts can determine regular district lines from gerrymandered ones. 2) The election clause in the Constitution says the task [of mapping districts] is granted to the states. Well, in 37 states they are drawn by legislatures, but they can’t draw lines that discriminate.”

“My response,” Fenner said, “is 1) just the irregularity of the lines is a prima facie case that there’s a problem; 2) the language of the drafters, the legislature’s history of the gerrymandering that ‘we are using it for partisan advantage’ is a problem; and 3) percentages. If 60 percent of the state votes blue, and only 25 percent of the blue candidates win election, that’s a problem.” He noted than in North Carolina, 53 percent of the voters elected 77 percent of the seats in the legislature.

“These are all judicially manageable standards for separating extreme partisan gerrymandering from just line drawing.”

Fenner noted that districts are supposed to be “continuous and compact.” That clearly rules out some districts, like the one that cuts through a hospital or the parking lot of a seafood restaurant. “The 7th District in Pennsylvania has six counties in it!”

When the Election clause argument is used to justify gerrymandering, “I’d say they did a pretty good job when dealing with race.” Why not partisanship?

Remember, Fenner said, “What the Constitution giveth, the Constitution taketh away.”

Michael Bobelian, lawyer and author, wrote: “In a series of rulings in the 1960s, the Supreme Court mandated the one-person, one-vote standard requiring legislative districts both at the federal and state level to have equal sized populations. Prior to these rulings, rural districts were heavily overrepresented as state governments refused to re-calibrate their districts over a period of many decades. These distorted districts spread like a pox across the nation, infecting liberal and conservative states from every region.”

Bobelian also quoted Justice Ruth Bader Ginsburg when she offered a rebuttal to Justice Gorsuch during the Gill v. Whitford oral arguments: “If you can stack a legislature in this way, what incentive is there for a voter to exercise his vote? Whether it’s a Democratic district or a Republican district, the result – using this map, the result is preordained in most of the districts.”

While the Court found in 1987 that the issue is justiciable, it still ruled against the challenger on other grounds. In 2004, the Court ruled 4-4-1, with Kennedy agreeing with the challenger but saying there was not enough evidence.

The Court has changed since then, but it doesn’t seem to have changed the liberal/conservative/Kennedy split. And Roberts might come down on the side of Wisconsin voters. He’s a big believer in the structure of the government created by the Constitution.

Fenner said, “Gerrymandering subverts the very pillars of our Constitution. It’s no longer a government of, by and for the people. It’s of, by and for the legislators. I hope the Supreme Court delivers a knock out blow to the practice.”

How will the Supreme Court come out on this?

“It ain’t the law until the Supreme Court says it’s the law,” Fenner said.

Then Fenner added, “Actually, Kennedy will decide.”

For Prof. Fenner’s complete remarks, go to www.omahabarassociation.com/page/Podcast and select Podcast #13.

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