The Fourteenth Amendment of the Constitution prohibits racial discrimination in districting. By parity of logic, it prohibits partisan discrimination in districting. The court protects both. It says racial discrimination means only intentional racial discrimination and then systematically rejects circumstantial evidence of racial discrimination – i.e. it doesn’t exist absent an admission. Nonsense like that doesn’t exist in murder trials but it’s fine with this court in politics.
And the court says the First Amendment is not sufficiently plain in saying that partisan discrimination is illegal. So, in effect, it would be OK for each state to grab the entire state delegation for the state’s majority party. Except that Congress stopped that practice in the early nineteenth century. But the state legislatures are free to do that by gerrymandering secondary parties out of representation.
So according to what we call the Supreme Court, the states are free to finagle with our votes to create the Congress of their - not our - choice. What’s so constitutional about that?
Several lawsuits brought the court carefully constructed statistical standards of proof that state legislative delegations are or are not distorted for partisan or racial purposes – proof that meant unconstitutional discrimination.
As I said on this station in January 2024:
“Gerrymandering is about unfairness, not ugly pictures. Funny pictures can keep communities together, unite people in a valley, or protect a favored legislator. But things get nasty when one party stacks opposing voters into as small a number of districts as possible so that the party in control of drawing the lines can spread enough of their own voters among the remaining districts to defeat everyone else in upcoming elections. The resulting legislative delegations look nothing like the proportion of voters who supported either party.
Quite good mathematical tests of … [different treatment of people who should have been treated the same way] have been developed by scholars at major universities. The efficiency gap was presented to the courts in Gill v. Whitford, and symmetry was presented to the courts in League of United Latin-American Communities v. Perry.
But we have a Supreme Court majority that doesn’t believe in protecting democracy and it refused to consider the fairness of gerrymandering under any of the constitutional provisions for elections and equality. Nevertheless the tests proposed are excellent…. [E]ither test would be quite appropriate, cancel manipulation by any human panel, and create a [Congress or] state legislature that fairly represents all parts and parties in New York.
States have worked hard to obliterate … opposing votes and magnify their own votes in Congress. It’s not accidental. …
Once people gain control of the districting process, with available information, it’s not hard to waste the votes of opponents. Gerrymandering anywhere in the country affects the power of … [every state’s] voters by swinging congressional power toward the party that does the gerrymandering in those states…. States that gerrymander waste … [other states’] votes by stacking Congress in conflict with the proportion of voters who’d support them.
Once red [or blue] states gerrymander their congressional delegations, blue [or red] states have to respond in kind to design a fair, non-gerrymandered voting system for the U.S. Congress to prevent partisan rigging of the House of Representatives.
Gerrymandering is the monster behind the jammed Congress which has been unable to pass a budget, fund important programs, or deal with problems that matter to … [people. Intransigent representatives in Congress] Republicans controlling Congress represent only a very small fraction of American voters, not the American people or New York.”
None of the statistical measures for partisan or racial gerrymandering discriminate. They do the opposite. But this court prefers discrimination. It’s time the court stopped crying wolf and started acting as an American court, of, by and for the people of America.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and was a US Peace Corps Volunteer in Iran. He enjoys the help of his editor, Jeanette Gottlieb.
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