How Partisan Gerrymandering Helps Fuel Congressional Dysfunction

Elections are a foundational element of democracy. Voters, therefore, expect that when a governmental body regulates elections, it will not intentionally seek to advantage a particular party or its candidates. It is obvious that government officials cannot be permitted to rig the voting machines to foreordain a desired electoral outcome. It is equally wrong for a governmental body to intentionally design electoral districts in ways that will unfairly skew the results. Drawing district lines to intentionally advantage a political party or candidate violates this obligation of government neutrality.

Yet, neutrality is now often abandoned, as recent computer technology enables politicians to engage more effectively and reliably in partisan districting. And the adverse consequences of such electoral practices, commonly described as gerrymandering, have become more apparent. When election outcomes are determined by partisan manipulation, the primary allegiance of persons so elected will naturally be directed at the party officials responsible for the candidates’ success. In such circumstances, the elected officials are more inclined to take direction from the party than from the voters. Their responses to the needs of their constituents are likely to be secondary.

We see this when we try to understand the current dysfunction of our Congress. Across the country, communities and individuals are desperately in need of congressional action. They seek and would benefit from a range of enactments respecting affordable healthcare, housing, public education and even for financial assistance in response to natural disasters. And yet Congress does nothing.  A majority of its members remain largely unresponsive to the needs of their constituents. But these same members of Congress are quick to respond to the instructions conveyed by the partisan apparatus that keeps them in office. Partisan gerrymandering does not provide a complete explanation for Congress’ failures. It is, however, a contributing factor of considerable significance.

The Supreme Court has had several opportunities to confront and cure the corruption to our democracy posed by partisan gerrymandering. Yet, in its most recent consideration of this issue, the Court has retreated from its role as the ultimate guardian of constitutional principle. The Court has defended its refusal to address partisan gerrymandering by observing that those called upon to draw a districting arrangement will always be aware of the political consequences of the map that they are creating. And from this observation, the Court reasoned that it was not possible to determine “when partisan districting has gone too far”; and that there were no “judicially manageable standards” for adjudicating partisan gerrymandering disputes. The Court ultimately concluded that such disputes presented “political questions” whose resolution should not be addressed by the courts.

In reaching this conclusion, the Court erroneously framed the issue posed by partisan gerrymandering cases. Properly understood, such cases involve the claim that the body responsible for drawing district lines intentionally engaged in the impermissible motive of trying to rig the outcome of the election for partisan reasons and succeeded in doing so. There is a long history of judicial precedent where courts have invalidated policies and practices that rest upon impermissibly motivated conduct. Retaliation against whistleblowers is just one among many examples. Cases involving intentional racial discrimination are another. The Court has even invalidated impermissibly motivated racial gerrymandering. Moreover, the Court cannot hide behind the observation that districting arrangements might rest upon a variety of considerations, for the Court has demonstrated the capacity to adjudicate claims where policies and practices rest upon mixed motives. In such circumstances, the Court typically determines the predominant motive and then decides whether that motive is impermissible.

The Court’s retreat from the issue of partisan gerrymandering occurred in a case that presented clear evidence of the motivation to secure partisan advantages. This motive should certainly have been found constitutionally suspect if not fatally impermissible. In essence, the Court failed in its obligation to address the important constitutional questions raised by partisan districting. This irresponsibility has now led to the current situation.

We now have one major party moving to redraw its congressional districting plans to maximize its political advantage. Its impermissible motivation could not be more clear. The other major party, while recognizing the detrimental nature of partisan gerrymandering, threatens to retaliate. The impulse to retaliate is entirely understandable and, perhaps, necessary given the competitive nature of elections. But this tit for tat redistricting will drive our political culture into a deeper partisan divide and result in an increasingly dysfunctional Congress. This is not good for democracy nor for the body politic.

If states proceed with transparent acts of partisan redistricting there will undoubtedly be new lawsuits challenging such corrupt cartography. And, if such cases are presented to the Supreme Court, the Court should seize the opportunity to reconsider its earlier ruling and reverse its previous error. Given the Court’s recent failure to maintain constitutional guardrails, it may be naïve to expect the Court to correct its earlier mistake. But one must continue to hope that the Court will come to appreciate the need to re-think this issue. And there is an historical precedent for such a course correction. Shortly before World War II, the Supreme Court rejected a constitutional challenge to a law requiring public school children to salute the flag regardless of their religious or ideological objections. Three years later, the Nation was fighting a war for the preservation of democratic values. The Court then realized the error of its earlier decision and reversed that decision in an opinion that reinforced democratic principles of ideological diversity.

The Court should follow the example of that earlier historical moment. It should entertain, on an expedited basis, the inevitable lawsuits that will question the constitutionality of partisan gerrymandering. It should reverse earlier precedent and properly hold that, where partisan interests predominate, the districting arrangement will be found impermissible.