A real prob­lem for democ­racy

The Saline Courier - - OPINION -

Ger­ry­man­der­ing has al­ways been part of Amer­i­can pol­i­tics. Af­ter all, the term was coined in 1812 af­ter Mas­sachusetts gov­er­nor and Found­ing Fa­ther El­bridge Gerry en­dorsed a state se­nate district that re­sem­bled a sala­man­der.

Un­til re­cently, fed­eral courts have been highly re­luc­tant to en­ter the “po­lit­i­cal thicket” and con­front a crit­i­cal ques­tion: When does the le­git­i­mate use of po­lit­i­cal power cross a line into an un­fair and illegal abuse of that power? When do the rights of a duly elected ma­jor­ity in­fringe on the rights of an ag­grieved mi­nor­ity?

In com­ing weeks, the Supreme Court is due to rule on cases from Mary­land and North Carolina that could pro­vide some an­swers. Dur­ing oral ar­gu­ments in April, Jus­tice Brett Ka­vanaugh bluntly ad­mit­ted: “Ex­treme par­ti­san ger­ry­man­der­ing is a real prob­lem for our democ­racy. I’m not go­ing to dis­pute that.”

It’s pos­si­ble that the high court will do what it did in a case from Wis­con­sin last year and avoid a de­fin­i­tive rul­ing. But even if that hap­pens, there is clearly a ris­ing de­mand -- among judges, vot­ers and even some politi­cians -- to change a sys­tem that is do­ing enor­mous dam­age to the coun­try’s po­lit­i­cal cli­mate.

Two gov­er­nors, Repub­li­can Larry Ho­gan of Mary­land and Demo­crat Roy Cooper of North Carolina, re­flected that ur­gency when they wrote in the Wash­ing­ton Post that the jus­tices should step in. “Ger­ry­man­der­ing is an overt as­sault on our rep­re­sen­ta­tive form of gov­ern­ment,” they wrote, “and free and fair elec­tions are the foun­da­tion of Amer­i­can democ­racy.”

Both par­ties launch those as­saults when they get a chance, but Repub­li­cans have been far more de­ter­mined -- and suc­cess­ful. In Michi­gan, the GOP won half the Con­gres­sional votes statewide over the last three elec­tions, but dis­torted dis­tricts con­sis­tently gave them nine of 14 Con­gres­sional seats (65%). The im­bal­ance was even worse in Ohio, where vote to­tals were roughly equal, but Repub­li­cans won three-quar­ters of the House dis­tricts.

This is not just an ab­stract de­bate about eq­uity or le­gal­ity. There are many rea­sons for the poi­sonous par­ti­san­ship pol­lut­ing Wash­ing­ton, but ger­ry­man­der­ing is a prime cul­prit.

“The dam­age done by ger­ry­man­der­ing isn’t dif­fi­cult to mea­sure,” Rep. Marcy Kap­tur, an Ohio Demo­crat, wrote in the Post. “It breeds par­ti­san leg­is­la­tors, who in turn breed a par­ti­san Congress. Ger­ry­man­der­ing has made vir­tu­ally all House seats safer -- in­clud­ing mine -- and the mem­bers who hold those safe seats are of­ten less re­spon­sive to com­mu­ni­ties and unwilling to com­pro­mise in Wash­ing­ton.”

And the prob­lem is get­ting worse. Vast data­bases com­bined with high-speed com­put­ers make it pos­si­ble to draw maps that en­trench ma­jor­ity power with al­most “sur­gi­cal pre­ci­sion,” said one fed­eral judge. And de­clin­ing re­spect for mi­nor­ity rights breeds ever-more ruth­less ef­forts by the ma­jor­ity to ce­ment their ad­van­tage and bury their op­po­nents.

That’s why the re­ac­tion among fed­eral judges is so im­por­tant. In­creas­ingly, they are em­brac­ing the ar­gu­ment that un­der the First Amend­ment, rigged dis­tricts de­prive vot­ers of their ba­sic rights of po­lit­i­cal as­so­ci­a­tion and free ex­pres­sion.

In dis­miss­ing Michi­gan’s map in April, a three-judge panel seemed to be send­ing a di­rect mes­sage to the Supreme Court when they wrote, “Judges -- and jus­tices -- must act in ac­cor­dance with their obli­ga­tion to vin­di­cate the con­sti­tu­tional rights of those harmed by par­ti­san ger­ry­man­der­ing.”

Last month, an­other unan­i­mous court ruled against Ohio’s dis­trict­ing plan and sent its own mes­sage to the high court: Defin­ing the line be­tween fair and un­fair, le­gal and illegal, is not that hard. They em­braced a three­part test that other fed­eral judges have used, as well. A ger­ry­man­der must be re­jected if it’s in­ten­tional, ef­fec­tive, and lacks “le­git­i­mate jus­ti­fi­ca­tion (that) ac­counts for its ex­trem­ity.”

These fed­eral judges are not alone. Vot­ers in sev­eral states have re­cently adopted mea­sures that would cre­ate in­de­pen­dent com­mis­sions to draw district lines, or sim­i­lar meth­ods to check and bal­ance the power of the ma­jor­ity.

A good ex­am­ple is Cal­i­for­nia, which es­tab­lished a panel to draft district bound­aries be­fore the last elec­tion. “The re­sult is much more com­pe­ti­tion, much more com­pact dis­tricts, dis­tricts that do a bet­ter job of keep­ing com­mu­ni­ties to­gether and that pro­duce more wins by women, by peo­ple of color -- by, you know, peo­ple who don’t have ac­cess to big money,” Michael Li of the Bren­nan Cen­ter for Jus­tice told NPR.

The jus­tices should lis­ten to the judges who urged them to “vin­di­cate the con­sti­tu­tional rights of those harmed by par­ti­san ger­ry­man­der­ing.”

But even if they don’t, gov­er­nors Ho­gan and Cooper are right when they say, “Even­tu­ally re­form will come -- and it must.”

•••

Steve and Cokie Roberts can be con­tacted by

email at steve­[email protected]

COKIE ROBERTS

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