Constitutional case against partisan gerrymandering
North Carolina is a purple state, narrowly electing a Democratic governor in 2016 while giving a slim presidential victory to Republican Donald Trump. But its congressional delegation is not split so evenly. Republicans hold 10 seats and Democrats only three.
Asked why, one GOP state legislator involved in designing district boundaries had a pithy explanation: “Because I don’t believe it’s possible to draw a map with 11 Republicans and two Democrats.”
North Carolina’s lawmakers made no bones about their intention to divvy up voters so that the GOP would retain a large majority of the state’s congressional delegation no matter which way the political winds blow. And they succeeded. But last week, a federal appeals court ruled the redistricting plan unconstitutional because of its discriminatory purpose and effect. It was the first time a federal court had ever struck down a map because of partisan gerrymandering.
Parties in power have practiced this method to entrench themselves for as long as anyone can remember. But modern technology has made it possible for legislators to carry out their mission with nearly infallible results.
The Supreme Court, which regularly polices redistricting to prevent racial discrimination, has always declined to overturn such districts on partisan grounds. But in October, the justices heard a case involving a state legislative map in Wisconsin that was also invalidated for unduly favoring Republicans. They have also agreed to consider a lawsuit filed by Republicans over a Maryland congressional district drawn by the Democratic legislature. The court may take the North Carolina case as well.
The case against partisan gerrymandering is not hard to make. It frustrates democracy by preventing voters from evicting those in power. It penalizes voters of one party or the other by deliberately diluting their electoral strength. It renders the consent of the governed largely moot.
In North Carolina, the court said the congressional map violated the equal protection clause and the First Amendment by discriminating against voters who are not Republicans. Wisconsin’s plan was struck down on similar grounds. But in a Pennsylvania case decided last week, a federal appeals court concluded it was not the job of the judiciary to fix such distortions. “The framers provided a check on state power within the text of the elections clause, but it is a political one — action by Congress,” the court said.
The problem with that theory is that partisan gerrymandering puts those who would like Congress to fix the problem at a severe disadvantage. Even if the voters would like a change, the unfair drawing of district lines is likely to keep them from getting their way. When elected bodies rig the system to nullify the force of popular sentiment, only the courts are in a position to create a level playing field.
The justices may be reluctant to take on the task of scrutinizing redistricting plans for evidence of bad faith. But as the appeals court opinion noted in the North Carolina case, judges would merely have to find “(1) discriminatory intent, (2) discriminatory effects, and (3) a lack of justification for the discriminatory effects.” The courts have had a lot of practice applying such tests for alleged racial gerrymandering.
Partisan gerrymandering is an abuse that Republicans ought to fear will be deployed against them. In 2018 and 2020, they may lose control of many state legislatures just as the time comes for decennial redistricting. The Illinois GOP, of course, is well acquainted with how the Democrats in Springfield have been able to use their map-drawing power to help keep Michael Madigan in charge of the House for all but two of the past 35 years.
Given that Republicans now make up 34 of the nation’s governors — elected on a statewide basis, not subject to gerrymandering — they should have few reservations about their ability to prevail in fair elections.
Fair elections, however, are becoming less and less common. It’s up to the Supreme Court to restore the power of the citizenry to govern itself.
Voting is a precious right, but it’s also one that a citizen should feel free not to exercise on election day if the choices on the ballot don’t inspire him. That was the decision a Kent, Ohio, software engineer named Larry Harmon made in 2010 and 2014 when he skipped those midterm elections. Yet when Harmon showed up to vote in a 2015 referendum on legalizing marijuana, he discovered that his name had been purged from the election rolls even though he still resided at the same address.
Harmon’s not alone. Ohio’s policy deprives untold numbers of perfectly eligible voters of the franchise in clear violation of federal law. That’s an injustice the Supreme Court must now rectify.
Harmon was the victim of an Ohio policy under which voters who have been inactive for two years are mailed a “confirmation notice” by election officials. If they fail to respond to the notice and then fail to vote for four consecutive years or reregister, they are stricken from the rolls. (Harmon says he doesn’t recall receiving a notice.)
Recently, lawyers for Harmon and other voters targeted by Ohio’s “use it or lose it” policy asked the Supreme Court to rule that it violates the 1993 National Voter Registration Act, which prohibits states from removing anyone from the federal rolls “by reason of the person’s failure to vote.”
That is what a federal appeals court ruled, in a decision that restored 7,500 voters to the rolls in time to take part in the 2016 presidential election. Ominously, however, during oral argument, several justices seemed sympathetic to the state’s position.
Justice Samuel A. Alito Jr. said that under Ohio’s process, failure to vote helps determine whether someone has moved and is “not the ground for removal in and of itself.” That’s a quibble. As Justice Ruth Bader Ginsburg observed: “Congress didn’t want failure to vote to be a trigger” for that process.
Justice Stephen Breyer echoed Ohio’s argument that the state was trying to fulfill another goal of federal law, decreasing the number of dead or ineligible voters on the rolls. True enough, but there are ways to improve the accuracy of voter lists without presuming that people who choose not to vote in one or two elections have moved or died.
In deciding this case, the court should be aware of the larger political context of a systematic effort to make it harder for some groups in America to exercise the franchise. Justice Sonia Sotomayor noted that Ohio’s policy for purging voter rolls — and its assumption that failure to vote is a sign that the voter has moved — disproportionately disenfranchises “certain cities where large groups of minorities live.” That disparate impact makes it even more important for the court to tell Ohio to find another way to keep its voter rolls up to date.
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