Democracy diluted

Now come the gerrymanders

House Bill 1982 advanced 59-30 in the Arkansas House, and its identical version, Senate Bill 743, advanced 22-10. This congressional district proposal would split Pulaski County, the most populous Democratic county in the state, into three separate districts.

One senator reportedly said that while it was not the intent of the legislation, “it was the icing on the cake.”

It then raises the question: What were the intentions of such a proposal?

In a 5-4 decision, voting along conservative-liberal judges, the Supreme Court held, in Rucho v. Common Cause (2019), with Chief Justice John Roberts’ opinion that “[p]artisan gerrymandering claims present political questions beyond the reach of the federal courts.” Before being appealed to the highest court, the Middle District Court of North Carolina ruled that partisan gerrymandering violated Article I, the First Amendment, and the Equal Protection Clause of the 14th Amendment of the Constitution.

These present constitutional concerns because the Constitution’s preamble opens with the words “We the people.”

In Section 2 of Article I, the people retain the right to elect their representatives, and diluting a minority party’s power may therefore undermine the rights of some of the people. In the First Amendment, the freedom of speech is fundamental protection, which is subdued if they are disempowered because of discrimination based on political affiliation.

Most important of all is the multifaceted 14th Amendment. It includes equal protection of the law within U.S. jurisdiction and the right to vote; both are challenged by the use of partisan gerrymandering. The district court held that the congressional districts violated the Equal Protection Clause utilizing a three-part test: “the plan reflected a predominant intent to secure a partisan advantage, produced lasting discriminatory effects under a variety of measures, and lacked a valid governmental justification.”

This has precedent: The Supreme Court has decided the unconstitutionality of racial discrimination under the 15th Amendment in Gomillion v. Lightfoot (1960), the equal protection of law under the 14th Amendment in Baker v. Carr (1962), and the “equality standard” or better known as the “one person, one vote” principle established by Wesberry v. Sanders (1964). Later that year, in Reynolds v. Sims, the highest court opined that Wesberry equivalently applies to state legislatures.

While two founding fathers were instrumental in the origins of gerrymandering, there was much more to unpack than some Supreme Court justices have implied.

Patrick Henry, a prominent member of the Virginia state House, drew a congressional district filled with Anti-Federalists to prevent the passage of the Bill of Rights by defeating its biggest proponent, James Madison. Had Madison lost in the election due to the dangerous political gerrymandering, our nation would look much different than it is today.

In 1812, Massachusetts Gov. Elbridge Gerry, a Democratic-Republican opposing the Federalist Party, signed into law a map with a congressional district into the shape of a salamander-like creature, hence creating the name gerrymandering and thereby influencing the contemporary gerrymandering process. President Benjamin Harrison feared partisan gerrymandering and, during his term, claimed it would amount to “political robbery.”

These congressional districts, however, are not simply partisan; they’re racially biased. The population of African Americans in Pulaski County is 37.9%, almost triple the total amount of 15% in the state. It is therefore unsurprising that the cracking of this county into three separate districts may be racially motivated,

Furthermore, as Democratic candidate for secretary of state Josh Price has noted, it would remove three majority-Black regions from the 2nd Congressional District, and add the nearly all-white Cleburne County. Was this the true intention of the legislation?

In Shaw v. Reno (1993), the Supreme Court ruled 5-4 that racial gerrymandering was unconstitutional under the 14th Amendment’s Equal Protection Clause. Therefore, as partisan gerrymandering continues to be debated, racially driven districts have often been struck down due to this precedent.

The judiciary may be hesitant to rule on partisan matters, but can surely strike racial prejudice from the law. In Arkansas, this may be our only hope. However, it is not far-fetched, as even the governor has expressed his concern.

Gov. Asa Hutchinson said he “would urge [lawmakers] that you do not want to dilute minority representation or influence in congressional races. That is an important factor that I believe should be considered.” Governor Hutchinson has refused to veto the legislation and is allowing the legislation to be enacted without his signature.

As the state attempts to crack the voting power of minorities in central Arkansas and pack Democratic voters in northwest Arkansas, democracy continues to be diluted. But most of all, the questions of racial and partisan gerrymandering can no longer be ignored.