USA Today (Op-Ed): Supreme Court ditches fairness, voter rights and the Constitution in gerrymandering ruling

The ruling means politicians are free to maximize party power and skew elections with few constraints. But citizens will keep fighting in the states.

When voters go to the polls, they deserve to have their votes count equally. But for decades, politicians have rigged districts to boost the votes of their friends and dilute the votes of their enemies. Now a narrow majority of Supreme Court justices has given its blessing to blatant partisan gerrymandering where politicians choose their voters instead of voters choosing their politicians.

Let’s be clear, the fight to end partisan gerrymandering does not end with the Supreme Court’s 5-4 ruling on Thursday. It will continue in state courts, at the polls, in legislatures and in the streets as citizens fight to make their voices heard and to end partisan gerrymandering that robs them of representation.

The court greenlighted two blatant partisan gerrymanders — one by Republicans in North Carolina (Rucho v. Common Cause) and one by Democrats in Maryland (Lamone v. Benisek) — despite the fact that hundreds of thousands in the two states have been stripped of their voice in Washington by power-hungry politicians.

Supreme Court will allow abuse

Several justices, including those who voted with the majority, acknowledged in oral arguments the damage done to our democracy by extreme partisan gerrymandering, and three lower courts have found clear legal standards to evaluate allegations of partisan gerrymandering. Yet the five justices in the majority concluded that the court could not set a constitutional standard to prevent partisan gerrymandering.

The repercussions from this decision will be felt nationwide in the wake of the 2020 Census when new district lines are drawn by politicians. Few legal restraints will stop them from creating districts to maximize the political power of their own party and throwing fair representation to the wind.

While the Supreme Court failed to act to curb abusive partisan gerrymanders, the fight is far from over. On July 15, the Superior Court Division of Wake County, North Carolina will hear Common Cause v. Lewis, a challenge to North Carolina state legislative maps under the state constitution. A similar state court challenge in Pennsylvania successfully overturned the partisan gerrymandering of congressional districts there. State supreme courts have the final say when citizens bring challenges under state law, so the U.S. Supreme Court’s failure to address this threat to democracy has no impact on a state court strategy.

Citizens and legislators must step up

In the 30-plus states that do not give voters ballot access, legislators also need to step up and pass legislation. In North Carolina alone, six different bills have been introduced, and any would be better than the system it uses now. Citizens and legislators in both North Carolina and Maryland are pursuing legislation to create independent redistricting commissions.

The citizen-driven push for independent  redistricting commissions with partisan balance is gathering momentum nationwide. Currently, seven states use these commissions to draw legislative and congressional districts: Arizona, California, Colorado, Idaho, Michigan, Montana and Washington. These commissions are the most effective solution to gerrymandering because people draw the maps, not politicians. Through a transparent process, they use community criteria, not partisan data. Arkansas and other states are eyeing the 2020 ballot with proposals to make this a reality. Ultimately, these impartial, citizen-led commissions will give back to voters the power to pick their politicians for themselves.

Today’s Supreme Court decision is part of a disturbing pattern of 5-4 rulings under Chief Justice John Roberts, where the court has undercut or eviscerated landmark reforms passed by Congress to protect the integrity of our democracy.

Protesters outside the Supreme Court on March 28, 2018. (Photo: Shawn Thew/epa-EFE)

 

It has gutted the landmark Voting Rights Act in Shelby County v. Holder, shredded campaign contribution limits in McCutcheon v. FEC, and opened our elections to unlimited spending by outside groups (much of it undisclosed) in Citizens United v. FEC. And now, with Rucho v. Common Cause and Lamone v. Benisek, it has condoned extreme partisan gerrymandering.

Unfair districts, broken democracy

In its ruling on partisan gerrymandering, the court fails to recognize that fair districts are crucial to our democratic process. Through extreme partisan gerrymandering in states across the country, politicians have given themselves the power to choose their own constituents in direct defiance of democratic principles.

The North Carolina maps upheld by Supreme Court were drawn with the explicitly stated intention to send 10 Republicans and three Democrats to Congress despite a nearly even split in the votes cast in the state’s congressional races. Even in the “wave election” that saw the Democrats retake the House in 2018, those gerrymandered lines held and thousands of voters were left with little real say in choosing their congressional delegation.

As the four dissenting justices said in Thursday’s opinion, these gerrymanders “deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.” They conclude that the only interpretation of the majority decision is that in the face of “grievous harm to democratic governance and flagrant infringements on individuals’ rights — in the face of escalating partisan manipulation whose compatibility with this Nation’s values and law no one defends — the majority declines to provide any remedy.”

Court blow won’t kill reforms

Experts, advocates, and the lower courts have all agreed that such free license in redistricting allows politicians to prioritize themselves while neglecting the representation rights of everyday Americans.

In fact, over 38% of state and congressional district maps drawn by politicians in the 2010 mapping cycle were either struck down by courts or drawn by courts when politicians failed to do so. This failure rate is more than three times higher than independent citizen redistricting commissions with partisan balance.

The road to independent redistricting commissions is challenging and will involve hard work, but we know that voters are on our side. In the meantime, we are organizing for reforms that will hold state legislatures accountable when they have redistricting authority. These include state laws that empower nonpartisan entities to draw districts, ban legislatures from favoring the ruling party, and create checks and balances on the ruling party passing the maps.

Today’s decision was a blow, but not a fatal blow. The battle against gerrymandering is being fought and won by everyday people at the state level. We have a lot of work to do before the next maps are drawn and we have the public support to do it.

Karen Hobert Flynn is president of Common Cause. You can follow her on Twitter: @KHobertFlynn.