It’s up to Supreme Court to protect ‘precious right to vote’
“You are the only institution in the United States that can solve this problem.” That was attorney Paul M. Smith, telling the Supreme Court that the justices had to deal with a growing menace to democracy: highly sophisticated gerrymandering by both parties that is seriously aggravating the poisonous partisanship afflicting the capital.
Smith is right. Normally judges are — and should be — very reluctant to adjudicate political disputes. But politicians keep showing that they are entirely incapable of reforming a system that keeps them in power, and the stakes are very high. “What is really behind all of this?” asked Justice Ruth Bader Ginsburg during the court’s argument. “The precious right to vote.”
We would add: the right to have a government that focuses on solving problems and serving people and doesn’t spend its entire time playing political games and seeking partisan advantage.
The tribal feud on Capitol Hill is getting worse, not better. Apart from the most basic tasks — keeping the government running, raising the debt limit, providing aid for storm-ravaged states — Congress is increasingly paralyzed and dysfunctional. The legislature’s approval rating is 16 percent in the latest Gallup poll, a dismal and accurate judgment.
There are many reasons for this dysfunction and no magic formula will completely reverse the trend. But changing how congressional districts are drawn is one reform that could make a real difference.
Today, incumbents use highly efficient computer programs to tailor districts that solidify their power while undercutting their opponents’. In the case argued before the court this week, Wisconsin Republicans used a shrewdly distorted map to capture 60 of 99 legislative seats in 2012, while winning only 48.6 percent of the statewide vote.
This is not just an abstract debate about fairness. Legislators are using their power to destroy a basic principle of democracy: accountability to the voters. If they represent totally safe districts, they have little incentive to cooperate with rivals or listen to dissenters.
Rep. Brian Fitzpatrick, a Pennsylvania Republican who joined a court brief opposing the Wisconsin map, told the New York Times: “You have 435 districts in the nation, and there’s probably only 20 or so that are legitimate swing districts. For the 415 safe seats, their main election is in the primary, not the general. When the main election is in the primary, you legislate accordingly. The result has been a growing cavernous divide, which has created a Hatfield v. McCoy environment in the legislature, and it’s hurting the American people.”
Gerrymandering is only partly to blame for this “cavernous divide.” Outside interest groups pour millions into political campaigns and demand purity on their issues.
Then there’s the “big sort”: voters moving to communities populated by like-minded people. Democrats performed poorly in Wisconsin in part because so many of their supporters crammed into urban areas or college towns, “wasting” their votes.
Justice Ginsburg is correct that the court has an obligation to tackle gerrymandering, because the “precious right to vote” is at stake. Chief Justice John Roberts says the court could be damaged by accepting this challenge, but it could also be damaged by avoiding it.
The key to the outcome rests with Justice Anthony Kennedy. He’s shared Ginsburg’s concerns about democracy’s peril, but doubted whether courts could devise a “workable standard” that draws a distinct line between the legitimate and corrupt use of political power.
Now, the justices have to draw that line and define that standard. They’re the only ones who can do it.