The Constitution’s Fourteenth Amendment prohibits states from official discrimination on the ground of race, or the exercise of rights protected by the Bill of Rights, including rights of speech and press. That clearly should prohibit both racial and partisan discrimination in districting. States cannot disenfranchise us because of the color of our skin or because of our political views.
Gerrymandering does both by deliberately jamming whoever states want to disenfranchise into as few districts as possible, thus minimizing their voting power. Meanwhile the ruling party carefully spreads its supporters into the remaining districts where they can outnumber the opposition voters.
None of that of course is blind. Those two steps, jamming and spreading, are carefully done to maximize the voting power of the ruling party and to minimize the voting power of the opposition. That jamming and spreading of voters is circumstantial evidence of deliberate discrimination by the party in control of the districting process.
But the Court says racial discrimination only refers to intentional racial discrimination and then systematically rejects circumstantial evidence of racial discrimination – in other words discrimination doesn’t exist unless the guilty confess. Nonsense like that doesn’t exist in murder trials but it’s fine with this Court in politics.
And the Court also denies that the First Amendment bars partisan discrimination in drawing district lines. So, it’s OK for each state to gerrymander political parties out of representation in order to protect the party in control from losing seats and majority status at the next election. That’s how the Court systematically refuses to respect or implement our right to vote.
On race, the Supreme Court ignores overrepresentation of Caucasians as if it were natural and not the contrived result of jamming opposing voters together and spreading supporting voters. It refuses to see the resulting underrepresentation of minorities as evidence of intentional disenfranchisement.
That same refusal to take account of circumstantial evidence of deliberate discrimination in workplace and schooling issues drove the need for “affirmative action” and the more recent description as D.E.I.
Given the Court’s blindness to the evidence, the only way to remedy deliberate underrepresentation of minority voters is to insist on proportional representation. The Court however condemns proportional representation as discriminatory, but doesn’t condemn disproportional under-representation as discriminatory. So, under-representation of African-Americans and other “minorities” is blessed by the Court and systematically minimized in state legislatures. Blessing the evil and condemning the cure is the Roberts Court way. Those Supreme Court decisions have left the states free to finagle with our votes to create the Congress of their – not our - choice.
Several lawsuits brought the Court powerful and precise statistical standards of proof that state legislative delegations have been distorted for partisan or racial purposes, which is unconstitutional. But the Court denied the proof and its constitutional significance.
The resulting legislative delegations look nothing like the proportion of voters who supported either party. And there is nothing accidental about it. The disproportion is a measure of the success of gerrymandering to discriminate against the opposite party. It’s an accurate measure of the controlling party’s success in retaining electoral control, and, therefore, of illegal discrimination – both racial and partisan.
The degree of discrimination is measured by what mathematicians have labeled the efficiency gap[i] or the lack of symmetry[ii] in the way the parties are treated. The Court’s unwillingness to take seriously extensive circumstantial evidence of deliberate discrimination reflects its unwillingness to enforce the Constitution and honor the requirements of democracy. There’s nothing blind about the process of drawing discriminatory lines. It’s intentional and deliberate on grounds the Constitution prohibits. The “justices” are violating their duty to obey the Constitution.
[i] Gill v. Whitford (2018).
[i1] League of United Latin-American Communities v. Perry (2006).
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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