Defending real elections will be a core issue in 2020 — thanks to the Supreme Court
Catch-22’s suck. And make no mistake, a Catch-22 is exactly what gerrymandering has created and will continue to create, thanks to the Supreme Court’s 5-4 decision in Rucho v. Common Cause, in which the court abdicated any role in restricting or regulating partisan gerrymandering. In many states—and in most cases we’re talking about states run by Republicans—the way electoral districts are drawn is unfair and puts one party at a severe disadvantage. The only way to change the way the districts are drawn is to defeat the governing party. The problem is that the only way to defeat the governing party is to win an election that takes place under the current system, the one that puts the party that’s out of power at a severe disadvantage. That’s what we call a Catch-22.
Democratic candidates and campaigns have an opportunity to take bold stances in defense of free, fair, and real elections, and make Republicans defend the actions they have taken to restrict or even deny voters the ability to choose who makes the law. It’s heartening to see that so many of our presidential candidates have already taken such stances, putting forth numerous plans and proposals to protect our elections. Unsurprisingly, Sen. Elizabeth Warren’s plan is particularly comprehensive, and includes this on gerrymandering:
No more gerrymandering. Under my plan, states will be required to use independent redistricting commissions to draw federal congressional districts to prevent gerrymandering. Both parties should compete on a level playing field; not in a rigged game designed to suppress the will of the people.
As for the wrongness of the Court’s decision, the most persuasive argument I’ve read was authored by one of its own members, in dissent. Here’s Justice Elena Kagan:
For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.
[snip] And gerrymandering is, as so many Justices have emphasized before, anti-democratic in the most profound sense….And that means, as Alexander Hamilton once said, “that the people should choose whom they please to govern them.” 2 Debates on the Constitution 257 (J. Elliot ed. 1891). But in Maryland and North Carolina they cannot do so. In Maryland, election in and election out, there are 7 Democrats and 1 Republican in the congressional delegation. In North Carolina, however the political winds blow, there are 10 Republicans and 3 Democrats. Is it conceivable that someday voters will be able to break out of that prefabricated box? Sure. But everything possible has been done to make that hard. To create a world in which power does not flow from the people because they do not choose their governors.
Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.
Beyond her broad rhetoric, as powerful as it is, Kagan also got into the details of why the majority’s decision, written by Chief Justice John Roberts, made no sense. Roberts wrote: “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” Why? Because, he stated: “There are no legal standards discernible in the Constitution for making such judgments … let alone limited and precise standards that are clear, manageable and politically neutral.”
Roberts is simply wrong, as Kagan made clear:
Checking [extreme cases of gerrymandering] is not beyond the courts. The majority’s abdication comes just when courts across the country,including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority’s own benchmarks.
In other words, the majority claimed there’s no way to come up with a fair process to assess whether a gerrymander is unfair, even though lower courts have already done so. Kagan called the majority out for simply not wanting to. She didn’t speculate as to the reason why the five conservative justices took this position, as that would be beneath a justice of the Supreme Court. It’s not beneath me, so I’ll just say it: It’s the same partisan bullshit we saw 19 years ago when a conservative Supreme Court majority elevated George W. Bush to the presidency.
Please read Kagan’s entire masterful dissent, as I can’t spend the whole post going over it line by line. Trust me, it’s worth it.
Gerrymandering is an important issue, and it’s far from the only one that relates to defending real elections. We don’t have real elections in this country if there is voter suppression (which can take many different forms, starting with bogus, unnecessary voter ID laws that have a discriminatory impact); or if some voting districts in poor, disproportionately minority areas are given fewer resources to work with than others (something done purposefully to create long lines on Election Day that lead some to abandon voting altogether); or if voter rolls are purged in unfair and arbitrary ways aimed at disproportionately affecting black and brown voters. All of these things are happening. Where they have the raw numbers to pull it off, Republicans have combined them with gerrymandering to deny Americans the ability to have real elections.
I’d like to see Republicans successfully convince independent voters that they should vote for a party that wants to ensure that only Republicans should be in charge, forever. Gerrymandering is not only wrong in principle, because it threatens our democracy, it’s a political loser because it’s indefensible. For example, as unprincipled as it is to do so, Republicans can maybe get away with lies about the need for Voter ID laws, or the need to purge voter rolls to prevent fraud, but what lie can they tell to justify gerrymandering?
We know the truth, because we heard it from Rep. David Lewis, a North Carolina Republican who played a leading role in gerrymandering that state’s congressional districts. Lewis said: “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.” Can you imagine Republicans having to defend blatantly thwarting of the will of voters while asking those same voters to elect them in 2020? Democrats must make them do so.
Every Democrat running for federal and state office needs to get behind comprehensive election reform, which includes protecting voting rights as well as getting rid of gerrymandering. Yes, even in blue states, Democrats should run against gerrymandering because doing so is not only the right thing to do for our democracy, it will help them win more seats as well.
Running as the defenders of voting rights, in particular the rights of the elderly, the poor, the young, and the voters of color whose rights have been under siege thanks to Republicans in states across the country, is vital to motivating voters who fall into those categories to come out and vote for Democrats. Running as the defenders of real elections and against gerrymandering and one-party rule is also vital to persuading voters who are not partisan to vote for Democrats, exactly because they have promised to defend real elections everywhere, all the time.
An election with a predetermined outcome is what they have in dictatorships that pretend to be democracies, and that’s what I thought of when I read the aforementioned remarks from David Lewis. Until 1984, 100% of the votes in each election for the legislature of the Soviet Union went to the Communists. There was no doubt about the outcome. How different is that really from what gerrymandering and other attacks on real elections seek to achieve?
Ian Reifowitz is the author of The Tribalization of Politics: How Rush Limbaugh's Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)