The Supreme Court has now heard oral arguments in two gerrymandering cases this term, and the world wonders whether Justice Anthony Kennedy will at last carry through on his suggestion in 2004’s Vieth v. Jubelirer that the Court can step in to stop extreme injustices in redistricting. Was he merely being coy, or will he finally decide that enough is enough?
In a recent column on Dorf on Law, I noted that gerrymandering is the quintessential political issue that is not a “political question” in the sense that the Supreme Court uses that term. That is, the Political Question Doctrine allows federal courts (including the Supreme Court) to avoid intervening in issues that the political branches are presumed to be better positioned to resolve. But when the problem is that one of the political branches is broken, the idea that the Court should simply say, “Let Congress fix it,” is paradoxical and absurd.
In the alternative, perhaps the issue is, as Kennedy has suggested, not that there is no constitutional violation but that line-drawing is too difficult. I suggested in my Dorf on Law column that this can be avoided by saying that the temptations for partisan abuse are so pervasive that legislative districting cannot be trusted to the political branches. Unlike the approach for the plaintiffs in one of the two pending cases, we would then not need a formula and a cutoff for “wasted votes” that would trigger judicial remedies.
To be clear, I think that those plaintiffs should win their case, and there is nothing wrong (notwithstanding Chief Justice Roberts’s description of their theory as “sociological gobbledygook”) with the idea of using statistical evidence to determine when partisan redistricting has gone too far.
Again, however, there surely must be something better than telling the people whose legislative seats are at stake to go ahead and create districts that are advantageous—but not too advantageous—to themselves and their fellow party members. The superior approach would be to say that the Constitution requires a fair political playing field and that partisan districting violates that requirement.
Here, however, I want to address a different question. If a party has a clear advantage in voters in a state, how much can it do to make the most of that advantage? How far can one party go to use its majority status to marginalize—and potentially to destroy—the other party?
The Abuse of Political Minority Status
To set the stage, consider a threshold issue that I discussed in a column last June. There, I was responding to a claim that Republicans are not so much guilty of gerrymandering as Democratic voters are of packing themselves into cities, leaving the rest of their states to Republicans. The proponents of that claim argue that Democrats are in essence gerrymandering themselves.
As I discussed in that column, that claim does not stand up to the clear evidence of Republican gerrymanders, including in states like North Carolina, where demographic migration cannot possibly explain the sudden shift of seats from Democrats to Republicans. The claim is also destroyed by the fact that gerrymanderers on both sides have readily admitted what they were doing.
In addition, even if migration were part of the explanation, that would not explain why line-drawers should be allowed to simply ignore the consequences of people’s decisions about where to live. I suspect, for example, that if migration suddenly created some Democratic-majority districts in Texas that had never existed before, the Republican-dominated state legislature there would “fix” that problem right quick. Why are they not required to do the opposite, to prevent voters from being effectively silenced?
All of this, however, presumes that it is the majority party that is doing the damage. That is, we talk about partisans “going too far” in the context of assuming that the people running the show actually do represent the majority of the electorate, but we are concerned that they not be permitted to completely trample the rights of the minority of voters.
That, it turns out, is not a safe assumption to make. In Wisconsin in 2012, for example, the first post-gerrymandering statewide election found Republicans winning sixty out of ninety-nine legislative seats in the state’s lower house even though a clear minority of voters (only 47 percent) had voted Republican.
And this is not all that unusual. In the 2017 Virginia state-wide elections, the Democrats won 54 percent of the vote compared to Republicans winning 44 percent. Even then, Republicans came away with a 51-49 majority in the House of Delegates. Similarly, Democrats won more House seats in Colorado and Nevada in 2016, even though Republicans received more votes overall for Congress in those states.
In my Dorf on Law column last June (which I discussed above), I noted that a 50-50 split in voters (in a state with ten congressional districts and where all of the Democrats are urbanites and all Republicans live elsewhere) could still allow the district lines to be drawn in a way that would result in a 9-1 advantage for one party.
That seems egregious enough, but it is worse when a party that actually turns out fewer voters becomes the party that can draw the lines to its further advantage. This is, of course, complicated by the possibility that vote totals do not reflect overall preferences (due, for example, to low voter turnout by the majority party’s voters in safe districts). On the other hand, many votes are being suppressed by Republicans across the country.
Notwithstanding all of that, if we believe that actual votes should equate with political power, having a minority party control the majority of seats in a legislature should at least be a bit troubling.
Is There Any Limit to How Much a Majority Party Can Press Its Advantage Through Non-Gerrymandering Strategies?
But returning to the situation in which we are at least talking about a party that truly represents the majority of a state’s citizens, what about the possibility of that party abusing its advantage in ways that go far beyond legislative redistricting?
Think, for example, about the state of Alabama. As New York Times columnist Linda Greenhouse recently pointed out, that state’s special election in December 2017 to replace Attorney General Jefferson Sessions in the US Senate exposed how well the Alabama legislature has gerrymandered its congressional districts. Republican Roy Moore won six out of the state’s seven districts, whereas the Democratic candidate—now-Senator Doug Jones—won only one district while eking out a statewide victory.
No one is claiming that Alabama is not a bright red state. It is conservative and Republican, and it is no surprise that the state elevates people like Sessions to national office. Even so, the cities in Alabama are more Democratic than people generally realize, and the Moore-Jones divide shows just how likely it is that the 6-1 Republican advantage in congressional seats is an artificial result of gerrymandering.
But to be contrarian, we might ask why we should imagine that the 35 to 45 percent of Alabama voters who are Democrats deserve any representation at all. We have winner-take-all presidential elections, the results of which allow one party to run the entire executive branch. What requires us to allow a minority of voters to have any representation at all in a legislature?
In a recent Verdict column, my colleague Vikram Amar discussed the winner-take-all method of determining who is sent to vote for president in the Electoral College. At one point, he wrote: “If an all-white state wanted to use an at-large system for its state legislature, that would not violate the Constitution even if one political party dominated the contests for a long period of time. At-large systems violate the Constitution only when they are used for racially improper purposes.”
I have not conferred with Dean Amar about this, but I suspect that his point was that it would be acceptable to have at-large congressional seats that could be allocated proportionally via party lists. But my initial reading of the sentence above caused me to think about something much more radical: What if a state legislature simply decided to have nothing but at-large voting for all offices?
Again, this seems like a radical proposition, but it is worth thinking through the implications. What if a state abolished all legislative districts and said, “We have decided that we need to have a legislature with one hundred members, but we have further decided that they will all be from the party that wins a statewide generic Republican-or-Democrat vote”?
In a sense, the Republicans in the US House of Representatives have already mimicked that approach by adopting the so-called Hastert Rule (named for the disgraced child abuser and former Speaker Dennis Hastert, although the rule was actually introduced by his predecessor Newt Gingrich). Under that rule, nothing happens in the House without a “majority of the majority” supporting it. That effectively leaves the Democrats in the House with no power, as (among countless other examples) the House Republicans’ farcical “investigation” of Russian interference in the 2016 presidential election reminds us.
This means that there are ways to effectively disenfranchise people without explicitly disenfranchising them. “We won!” becomes, no matter how narrow the win, an excuse to set legislative rules that treat the opposition party’s voters as if they did not exist.
But what are the limits on such non-gerrymandered power plays? Could the Alabama legislature decide to simply prevent Democrats from holding any seats in their state’s government, as in the system that I described above? This would likely violate the Guarantee Clause of the US Constitution (“The United States shall guarantee to every State in this Union a Republican Form of Government”), but challenges under the Guarantee Clause are non-justiciable, so a majority of the majority in the House could stop Congress from intervening.
But could this be so extreme that not even the most partisan Republicans would want to “go there”? Color me dubious. The Republicans in North Carolina, after a Democrat actually won the state-wide election for governor in 2016, passed legislation stripping the incoming governor of many of his powers. Where partisan advantage is to be had, Republicans around the country have recently shown little restraint. (Just ask Supreme Court Justice Merrick Garland.)
A party that had attained its legislative majority through gerrymandering, as we saw in Wisconsin above, could still get in on the fun by first engaging in even more aggressive voter suppression efforts to turn their electoral minority status into a majority. Once it was safe to assume that the party could win statewide vote totals, it could then adopt a system in which legislative seats all go to the party with the statewide majority.
What is most troubling about this possibility is that it is not actually clear that there is anything wrong with statewide (or even nationwide) winner-take-all at-large voting systems. If we believe in small-d democracy, how much should it bother us that the majority of voters gets to determine what the government does?
If we could somehow guarantee that there was no voter suppression and that the at-large votes actually represented the will of the people, what could we say to condemn such a system?
But of course, we could never make such a guarantee. Indeed, the consolidation of political control by Republicans would all but guarantee that those anti-democratic measures would intensify.
It is notable that voters from racial minorities would also be disenfranchised under such a system, since nonwhite voters in the US are much more likely to vote for Democrats. Concerns about racial discrimination explain why the courts are willing to police race-based redistricting but not partisan redistricting. But in a system in which plenty of white people are also completely powerless because of their preference for the losing party, the lack of representation would no longer be race-based (although the legislation that Republicans would likely pass would certainly have extreme racial impacts).
In any event, democratic systems must by their very nature leave many voters frustrated. That is inevitable, but we count on compromise, pluralism, and the possibility of winning the next election to maintain the fairness of the system. When the courts take a hands-off approach, and when at least one party is willing to press every advantage, we could find ourselves inexorably marching toward autocracy, even if we did not have a wannabe monarch already sitting in the White House.
