This piece is my weekly op/ed for newspapers in my conservative congressional District (VA-06).
Gerrymandering is as old as the nation. Even so, it violates basic values of the American republic. In particular, I would argue, it violates the notion that no citizen should be denied “equal protection of the laws.” And a more just, more democratic alternative is readily at hand.
Let’s start with this idea of “equal protection of the laws.” How can citizens have “equal protection of the laws” if the state is allowed to intentionally give some citizens an unequal – weaker — voice in selecting the people who will make those laws?
The courts have previously struck down redistricting plans that are clearly designed to reduce the voice of some voters on the basis of their race. That’s what’s happened in recent months with laws passed in North Carolina to gerrymander districts with boundaries that, as the court said, “target African-Americans with almost surgical precision.”
The court was right in rejecting such racially-based gerrymandering. Effectively disenfranchising people because of their race has a long and sordid history in America, which the courts are right to keep from being re-enacted.
But the courts have never yet stood in the way of the use of gerrymandering to strengthen the electoral power of the voters of one party while minimizing the voice of voters who align with a different political party.
Indeed, in states like North Carolina and Texas, where redistricting has been challenged for targeting racial minorities, the states have “defended” themselves with the similarly offensive argument that their efforts were not based on race but on politics. In other words, they were trying to stifle the voices of minorities not because of their race but because they would vote for their opponents.
Over the generations, gerrymandering of this sort has been done by both major parties. Each decade, whoever has the advantage in the legislature when the census results come in has used their power to draw district lines so that their opponents waste many votes in a few districts, while they themselves can win in many districts by smaller margins.
This may have been standard American practice, but it is corrupt and – it seems clear enough on the face of it— should be recognized as unconstitutional.
Gerrymandering allows politicians to choose their voters, when democracy is supposed to work the other way around, with voters choosing which politicians to place in office.
Moreover, drawing district boundaries to reduce the voting power of voters based on their viewpoints erodes the idea –enshrined in the Declaration of Independence – that governments “deriv[e] their just powers from the consent of the governed.”
Now, the Supreme Court is hearing a case from Wisconsin that brings into focus precisely this question: is it constitutional to gerrymander districts for partisan advantage?
As long-standing is this corrupt practice is in America, I hope that the Supremes will recognize that allowing politicians to draw district boundaries to protect their incumbency is an unconstitutional theft of power from the voters.
And that the Court will recognize that legislators using their power for the purpose of reducing the electoral voice of those with opposing opinions represents a kind of governmental “viewpoint discrimination” that, as courts have said in other contexts, runs contrary to the First Amendment.
With present-day technology, we don’t have to have politicians draw these boundaries at all. Once we commit to fairness, we can utilize computers to draw all such boundaries in accordance with a few simple – and non-political – rules.
Right now, no one knows which party will have the upper hand in the aftermath of the 2020 census and that year’s elections. So this should be a fine time to take measures to reform the boundary-drawing process.
The Supreme Court can help make sure that our elections determine our representatives, rather than our representatives continuing to work to rig our elections.