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The Supreme Court Deals Another Blow to Representative Democracy

Posted by NYPIRG on July 1, 2019 at 7:37 am
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The U.S. Supreme Court wrapped up its session and examined one of the most problematic issues facing American democracy:  how best to draw political boundaries to ensure fairness and equality.  The question facing the justices was what role should federal courts play in correcting overtly partisan gerrymandering.

Gerrymandering is a long-time practice in the United States in which political parties rig the boundaries of elected officials to maximize their own partisan advantages.  The term originates from redistricting decisions made in Massachusetts during the early 1800s.  In 1812, Massachusetts adopted new constitutionally-mandated electoral district boundaries. The Republican-controlled legislature had created district boundaries designed to enhance their party’s control over state and national offices, leading to some oddly shaped legislative districts.  Then-Governor Elbridge Gerry signed the legislation. The shape of one of the state senate districts in Essex County was compared to a salamander by a local Federalist newspaper in a political cartoon, calling it a “Gerry-mander”.  Ever since, the creation of such districts has been called “gerrymandering.”

Reformers have decried this practice for decades.  In effect, control by state legislatures and governors of the redistricting process allowed elected officials to choose their voters, instead of the other way around.  As a result, electoral challenges became much more difficult, voters were denied real competition for office, and the nation became more polarized.

In the past, the Supreme Court has weighed in on intolerable redistricting practices.  The Court had ruled against gerrymandering that allowed racial discrimination.  The Court had ruled that district must be roughly the same population size in order to ensure “one person, one vote.”

Yet, last week the Court decided that it will not rule on redistricting that is obviously and overtly partisan.  The decision focused on two cases, one in North Carolina and the other in Maryland.

In both cases, the dominate political party dramatically changed district lines to their own political advantage.  In particular, last week’s 5-4 ruling means that North Carolina’s current Republican-drawn map delineating its 13 Congressional districts — a map that critics have said is among the country’s most egregious examples of hyper-partisanship — will stand. The decision will likely embolden lawmakers around the country to craft seats for their respective parties with the aid of increasingly sophisticated computer mapping tools.

Chief Justice Roberts, writing for the majority, argued that the drafters of the Constitution understood that politics would play a role in drawing election districts when they gave the task to state legislatures. Judges, the chief justice said, are not entitled to second-guess lawmakers’ judgments.

Chief Justice Roberts did not say the current system of drawing districts is desirable as a matter of policy. “Excessive partisanship in districting leads to results that reasonably seem unjust,” he wrote.  But the federal courts simply cannot intervene.

As a result of their decision, dominant political parties can eviscerate electoral competition in states.  This is not, however, the first time that the Court has acted to protect the power of a dominant class.

In Citizens United v. Federal Election Commission, the Court held that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political communications by corporations, including nonprofit corporations, labor unions, and other associations.

The ruling effectively freed corporations to spend money on electioneering communications and to directly advocate for the election or defeat of candidates. In his dissenting opinion, Associate Justice John Paul Stevens argued that the Court’s ruling represented “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government.”

In both cases, the Court ruled in favor of those who dominate elections in America – the two political parties and the wealthy and organized that provide the bulk of campaign spending.  In both cases, the public is denied meaningful electoral debates and the opportunities to hear different ideas.  Both cases weaken representative democracy. 

There is a lesson to be learned: don’t expect the Supreme Court to save the day.  Ultimately it is up to us, the voters, to get engaged and fight for the changes that strengthen our democracy.