This past summer, the Supreme Court issued a 5-4 ruling that “Partisan gerrymandering claims present political questions beyond the reach of the federal courts.” In short, the majority’s opinion was that this issue needs to be solved by the state legislatures. The argument of “adhering to constitutional principle” to not infringe on state’s rights is a weak one — especially when those state legislatures are stripping individuals of their rights. At this critical moment, the Supreme Court must step in to protect peoples’ rights — especially the right to the ballot box.
In America, the concept that every citizen is guaranteed the ability to participate in our democracy is well-understood. This belief manifests itself in the 15th, 19th, and 26th amendments of the Constitution which gave African-American men, all women, and everyone 18 years and older the right to vote, respectively. Over time, voting has expanded from something only enjoyed by rich, land-owning white men to a fundamental privilege that every citizen enjoys. In that sense, voting is a right.
The Equal Protection Clause of the 14th amendment mandates that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In Brown v. Board of Education of Topeka, the Supreme Court used the Equal Protection Clause to strike down segregation in public schools and end the separate-but-equal doctrine — claiming separate but equal is “inherently unequal.” Of course, critics argued that this was a major overreach on the rights of states and localities by an ‘activist’ Supreme Court. However, this case was an example of the Court protecting individual rights — in this case, the rights of African-American citizens to not be discriminated against in public areas.
Gerrymandering makes the votes of people in some areas count less than others. According to FairVote, an organization dedicated to electoral reform in the United States, gerrymandering works to “pack, stack and crack the population in order to make some votes count to their full potential and waste other votes.” Gerrymandering is a concerted effort by politicians in power who want to keep their jobs and get their party more seats. Although gerrymandering is committed by both parties, a report by the Brennan Center for Justice found that states controlled by a Republican trifecta correlated with the congressional map being biased to win the party more seats. For instance, sole control of state governments in 2016 netted Republicans between 11 and 17 extra seats in the election.
Because voting is a right enjoyed by all legal citizens, gerrymandering violates the equal protection clause because it makes some votes count less than others. This creates a feedback loop because these barriers discourage people from participating at all in democracy which then allows the guilty politicians to continue to commit these heinous acts. Additionally, since minorities tend to vote Democratic, Republican gerrymanders disproportionately weaken the impact of those demographics votes.
Going back to the recent case Rucho v. Common Cause, the Supreme Court abdicated its duty of protecting the rights of citizens. Often times, in cases relating to elections, the Court defers to state and local governments’ election policies.
In Rucho, the majority opinion stated that the issue of partisan gerrymandering has to be solved through state legislatures. This is flawed because the state legislatures are the ones doing the gerrymandering. Courts do not defer to the government to correct themselves if the government is the one violating rights. That is why the judiciary must step in. Without court intervention, state governments will continue to disregard the right of every individual to fair and equal representation in our representative democracy.
The Court wrongly decided Rucho v. Common Cause. Because of this ruling, it is easy to see how states will now be empowered to gerrymander further because now they know the Courts do not care to protect citizens’ voting rights. States already exhibit this behavior. After Shelby County v. Holder, a case that ended the federal oversight of any new state election laws, many states across the U.S. jumped to purge citizens from lists of registered voters.
Still, this trend of recent cases makes American democracy appear a sham. The Court itself cannot redraw the maps because then it would be legislating. However, judicial review gives the Supreme Court the power to rule on the constitutionality of laws. Using the power of judicial review granted by Marbury v. Madison, the Court can strike down these maps.
Rucho v. Common Cause gave the Supreme Court the chance to establish a judicial standard for when courts can strike down maps. A measure called the “Efficiency Gap” assesses gerrymandering by seeing if one party’s votes are wasted more than the other’s. The efficiency gap standard would allow the courts to determine if people are being represented and treated equally.
Just as the Court overruled localities and state legislatures in Brown v. Board of Education of Topeka, the Court must rule the maps created by these state legislatures unconstitutional using the efficiency gap standard and demand the legislatures redraw the maps in a fair and equitable fashion.
If the Supreme Court cannot protect the right to access the ballot box for all citizens, American liberal democracy is already dead.
Categories: Domestic Affairs