Gerrymandering has always been part of American politics. After all, the term was coined in 1812 after Massachusetts governor and Founding Father Elbridge Gerry endorsed a state senate district that resembled a salamander.
Until recently, federal courts have been highly reluctant to enter the “political thicket” and confront a critical question: When does the legitimate use of political power cross a line into an unfair and illegal abuse of that power? When do the rights of a duly elected majority infringe on the rights of an aggrieved minority?
In coming weeks, the Supreme Court is due to rule on cases from Maryland and North Carolina that could provide some answers. During oral arguments in April, Justice Brett Kavanaugh bluntly admitted: “Extreme partisan gerrymandering is a real problem for our democracy. I’m not going to dispute that.”
It’s possible that the high court will do what it did in a case from Wisconsin last year and avoid a definitive ruling. But even if that happens, there is clearly a rising demand -- among judges, voters and even some politicians -- to change a system that is doing enormous damage to the country’s political climate.
Two governors, Republican Larry Hogan of Maryland and Democrat Roy Cooper of North Carolina, reflected that urgency when they wrote in the Washington Post that the justices should step in. “Gerrymandering is an overt assault on our representative form of government,” they wrote, “and free and fair elections are the foundation of American democracy.”
Both parties launch those assaults when they get a chance, but Republicans have been far more determined -- and successful. In Michigan, the GOP won half the Congressional votes statewide over the last three elections, but distorted districts consistently gave them nine of 14 Congressional seats (65%). The imbalance was even worse in Ohio, where vote totals were roughly equal, but Republicans won three-quarters of the House districts.
This is not just an abstract debate about equity or legality. There are many reasons for the poisonous partisanship polluting Washington, but gerrymandering is a prime culprit.
“The damage done by gerrymandering isn’t difficult to measure,” Rep. Marcy Kaptur, an Ohio Democrat, wrote in the Post. “It breeds partisan legislators, who in turn breed a partisan Congress. Gerrymandering has made virtually all House seats safer -- including mine -- and the members who hold those safe seats are often less responsive to communities and unwilling to compromise in Washington.”
And the problem is getting worse. Vast databases combined with high-speed computers make it possible to draw maps that entrench majority power with almost “surgical precision,” said one federal judge. And declining respect for minority rights breeds ever-more ruthless efforts by the majority to cement their advantage and bury their opponents.
That’s why the reaction among federal judges is so important. Increasingly, they are embracing the argument that under the First Amendment, rigged districts deprive voters of their basic rights of political association and free expression.
In dismissing Michigan’s map in April, a three-judge panel seemed to be sending a direct message to the Supreme Court when they wrote, “Judges -- and justices -- must act in accordance with their obligation to vindicate the constitutional rights of those harmed by partisan gerrymandering.”
Last month, another unanimous court ruled against Ohio’s districting plan and sent its own message to the high court: Defining the line between fair and unfair, legal and illegal, is not that hard. They embraced a three-part test that other federal judges have used, as well. A gerrymander must be rejected if it’s intentional, effective, and lacks “legitimate justification (that) accounts for its extremity.”
These federal judges are not alone. Voters in several states have recently adopted measures that would create independent commissions to draw district lines, or similar methods to check and balance the power of the majority.
A good example is California, which established a panel to draft district boundaries before the last election. “The result is much more competition, much more compact districts, districts that do a better job of keeping communities together and that produce more wins by women, by people of color -- by, you know, people who don’t have access to big money,” Michael Li of the Brennan Center for Justice told NPR.
The justices should listen to the judges who urged them to “vindicate the constitutional rights of those harmed by partisan gerrymandering.”
But even if they don’t, governors Hogan and Cooper are right when they say, “Eventually reform will come -- and it must.”