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On Gerrymanders, Electing To Step Aside

When the leaders of 13 British colonies declared themselves independent in 1776, their main concerns were to evict the king’s military and stay alive in the process. It took seven years of war and six years of dithering under Articles of Confederation before they got around to writing the Constitution of the United States of America.

It was only then, in 1787, that they turned their attention to establishing a bicameral Congress and determining how its members would be selected. And on that point, they opted to leave it to the states to determine the “Times, Places and Manner” of holding elections.

Last week, some 230 years after the Constitution was ratified, the Supreme Court narrowly but firmly told the rest of us what that means. What it means, the court’s 5-4 conservative majority told us, is that provided they comply with statutes enacted by Congress, the states can choose their members of the House of Representatives pretty much any way they want, so long as they use districts of roughly equal population that are not drawn on the basis of race or some other constitutionally prohibited factor. Over the vehement objection of the four liberal justices, the court ruled that political considerations are not a prohibited factor in drawing district boundaries. In fact, since the founders left the political branches in charge of setting electoral rules, they were well aware that politics would play a major part.

Federal courts have no role beyond those I just mentioned in setting congressional district boundaries, the court said. The decision in Rucho v. Common Cause rejects – permanently – challenges that Democrats brought against Republican-drawn districts in North Carolina and that Republicans brought against Democrat-drawn districts in Maryland. Besides being a landmark case in the development of electoral law, the decision marks a rare occasion when a branch of government voluntarily surrendered power over an important aspect of American life. In doing so, the divided court crystallized the opposing philosophies of government at the heart of American politics today.

Writing for the court’s liberal minority, Justice Elena Kagan noted the precision with which today’s technology allows politicians and their consultants to draw boundaries that “crack,” or divide, the opposition’s usual voters among districts to dilute their strength, and to “pack” them tightly into a small number of districts to ensure they elect a small number of representatives by big margins, rather than a large number of representatives by small margins. Sometimes such packing occurs naturally. Today’s Manhattan would be packed with Democrats no matter where lawmakers drew district lines. But often, legislators design bizarre-looking districts to achieve the desired effect while satisfying local requirements, such as respecting county or municipal boundaries.

Kagan’s dissent begins by presumptively announcing that these contortions violate the First Amendment rights of voters to freely associate with one another and their Fourteenth Amendment rights of equal protection under law – violations that would give the federal courts the jurisdiction they have asserted.

“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 doing so, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

“And checking them is not beyond the courts,” she added.

To which the court majority, in a decision by Chief Justice John Roberts, countered that the problem is very much beyond the courts, by constitutional design. Federal judicial appointments are for life, and judges often serve decades beyond the presidents who nominate them. They are insulated from the popular will. The political branches, at the state and federal level, face voters regularly and frequently. If they are frustrating the popular will, they will lose. Voters need not change their politicians’ minds; they need only persuade other voters to change their politicians.

This happens all the time. In 2010, voters who were unhappy with the direction of the country replaced 63 Democratic house members with Republicans. In 2018, Democrats turned the tables and flipped 40 House seats formerly held by the GOP. Redistricting was not a significant factor –except where courts intervened.

As I wrote in this space last year, the Pennsylvania Supreme Court – whose justices are elected on party tickets, and which had a 5-2 Democrat majority – redrew the state’s political map to break Republican domination. That court did not even bother to immediately explain its rationale, other than to say it acted solely under the state constitution, to keep the matter out of the federal courts.

According to last week’s decision, this result is perfectly fine. If Pennsylvanians want their partisan judges to draw their district boundaries, that is their business. If Iowa chooses to use an appointed commission to draw legislative boundaries subject to legislative approval, that’s OK too. If Californians choose to adopt a “jungle primary” system in which the top two vote-getters advance to the general election even if they are from the same party, the federal courts have no reason to intervene.

The Constitution protects the rights of voters, not the rights of parties, also by design. “The dissent’s observation that the Framers viewed political parties ‘with deep suspicion, as fomenters of factionalism and symptoms of disease in the body politic,’ ... is exactly right,” Roberts observed in a footnote. “Its inference from that fact is exactly wrong. The Framers would have been amazed at a constitutional theory that guarantees a certain degree of representation to political parties.” In fact, Roberts noted, House members were not even elected in districts in the nation’s first half-century. Until 1842, a party winning even a small majority would receive all the seats in the state’s delegation.

Voters change their minds and, often, their party preferences. If we want a politics of persuasion and compromise, and if we want to minimize factionalism, leaving politics to the political branches is the way to go. Republicans have a lot to gain by reaching out to Democratic constituencies, as the current president demonstrated when he breached the Rust Belt’s “blue wall” in 2016. And Democrats fared well just two years later by appealing to educated female suburbanites in red states who historically tended to favor the GOP.

Gerrymanders have always been with us, but the fortunes of political parties wax and wane nonetheless. However we feel about last week’s ruling, our republic and its democracy will be fine as long as we honor the First Amendment’s demand that we respect everyone’s right to try to persuade us of the error of our ways.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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