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VOL. 43 | NO. 28 | Friday, July 12, 2019

Gerrymandering’s cure: Vote supporters out

By Kathy Carlson

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Now that the U.S. Supreme Court has said federal courts won’t rule on cases involving political gerrymandering, voters who don’t like the way their legislative districts are drawn will have to turn to state courts or to the gerrymandered legislatures themselves to change things.

With a U.S. Census set for next year, followed by reapportionment of legislative districts across the country, the rules on political gerrymandering take on new importance.

In Tennessee, for example, Republicans control both houses of the legislature and the governorship. In the 2018 elections, Republican Congressional candidates captured about 60% of the vote and took 7 of 9 seats in the House of Representative – 78% of the seats. In all nine congressional districts, winners enjoyed lopsided victories. The state Legislature handles the drawing of legislative district lines.

“The Court rejects any notion that we’re entitled to any correspondence between a party’s share of the vote and its share of the seats, even though it uses that measure as a rough benchmark in Voting Rights Act cases, and most political scientists consider it an important measure of fairness,” says Steven J. Mulroy, professor of law at the Cecil C. Humphreys School of Law at the University of Memphis.

Mulroy teaches election law along with constitutional law and other topics. His book, “Rethinking U.S. Election Law: Unskewing the System,” was published last year and covers political gerrymandering and other topics.

“In a nutshell, the Court says that it can’t find any easy-to-use way to quantify how much use of politics in redistricting is too much, so it is going to call partisan gerrymandering a ‘political question’ that federal courts can’t and won’t review,” Mulroy adds. “If people want to complain about political gerrymandering, they’ll have to either try to fight it in state court, or somehow use the political process to combat it.”

Gerrymandering is the longstanding American political practice of drawing up legislative district lines to give political advantage to one political party over its rivals. Both Democrats and Republicans gerrymander when their party is in control, and the Supreme Court case decided about two weeks ago involved complaints on how lines were drawn in Maryland to favor Democrats, and in North Carolina to favor Republicans.

In both states, lower federal courts had ruled that the partisan gerrymandering was unconstitutional and that federal courts could remedy the situation. The case didn’t involve Tennessee directly but all states are subject to U.S. constitutional law when they draw legislative lines.

But the Supreme Court, in a 5-4 opinion written by Chief Justice John Roberts, said the framers of the Constitution intended that some measure of political partisanship figure into the drawing of legislative districts, and that there was no reliable way for federal courts to determine how much political influence was too much.

The majority opinion seemed comfortable with the flexing of political muscle in drawing lines. “The Court’s jurisprudence in both gerrymandering and campaign finance has an ‘all’s fair in love and war’ mentality,” Mulroy says.

The Supreme Court majority, however, didn’t cut off all access to federal courts in cases involving legislative district lines. It said that federal courts can still hear cases alleging that district lines were drawn because of race or because they violate the one-person, one-vote principle.

The Supreme Court majority said it needed but couldn’t ascertain “manageable standards” with which to decide cases on political gerrymandering.

“That requirement by itself isn’t necessarily troubling per most experts,” Mulroy acknowledges. But, in his opinion, “what’s troubling is that – in this case – there were any number of viable candidates for judicially manageable standards demonstrated by the various lower courts, and the (Supreme) Court rejected all of them.”

The Supreme Court’s four liberal justices, in a dissenting opinion by Justice Elena Kagan, said that partisan gerrymandering goes to the heart of the democratic process.

American politics is based on the notion that every two years, voters can throw out representatives who don’t reflect their interests.

Partisan gerrymandering, she wrote, can make that notion meaningless by stacking the deck so thoroughly against one political party that its voice isn’t heard in government. The problem is compounded by computer programs and technology that enable lines to be drawn with greater precision than in the past.

The liberal dissenters also noted that lower federal courts – the ones that eventually feed cases to the Supreme Court – have “largely converged” on a standard for deciding partisan gerrymandering claims, a standard that involves the intent behind the lines, their effects and causation. The federal courts in North Carolina and Maryland had applied judicial standards to determine that the lines in question were unconstitutional.

“The reason we need court scrutiny of gerrymandering is that it’s so hard to convince incumbents to change gerrymanders, because doing so would threaten their own re-election,” Mulroy explains. “… Indeed, all election reforms – campaign finance, ballot access, voter ID, etc. – have this inherent problem: You’re trying to convince incumbents to change the very system that got them elected.”

In Tennessee, legislative districts are apportioned by the General Assembly on the basis of population and must be substantially equal, according to the Tennessee Blue Book, a state publication that outlines the workings of state government.

The U.S. Supreme Court has stated that “as nearly as is practicable, one man’s vote is to be worth as much as another’s.”

Under the Tennessee and U.S. constitutions, reapportionment takes place at least every 10 years after each U.S. Census.

The Blue Book states the Tennessee House and Senate must direct a committee or legislative staff to draw district lines based on census data, and each body’s data are submitted to the other body for approval.

Democrats introduced two bills dealing with drawing of legislative district lines during this year’s session of the General Assembly. One would have created a five-member Congressional redistricting commission beginning in January 2021. The other would have required public notice and public input in redistricting. Both measures stalled in committee and never made it to the House or Senate floor.

Tennessee’s two Democratic Congressmen, Reps. Jim Cooper of Nashville and Steve Cohen of Memphis, say they disagree with the Supreme Court decision and urge Congress to pass redistricting reform bills they have tried unsuccessfully to pass in previous sessions.

“The Supreme Court’s decision is shortsighted and dangerous for our country,” Cooper said in a statement. “‘One person, one vote’ was decided in Tennessee (Baker v. Carr) and allowed federal courts to intervene in redistricting cases.

“Now that the Supreme Court has failed to stop politicians from rigging the redistricting process, it’s up to Congress to fix the system by passing my redistricting reform bills. Voters ought to be able to pick their politicians, not the other way around,” Cooper said.

Law professor Mulroy said much the same thing. “It’s supposed to be that voters choose their representatives. With gerrymandering, it’s the other way around.

“This is not how democracy is supposed to work.”

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