The case of Gill vs. Whitford invites the U.S. Supreme Court to do something very difficult. It may throw up its hands — as four justices wanted to in 2004. But it would be bad for the Republic if it did.
The challenge is this: to set a principled limit to political gerrymandering.
The U.S. Supreme Court threw up its hands rather than address partisan gerrymandering in 2004. It should not do so this time.
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In a 2004 case, four justices — but not five — said it couldn’t be done. Because courts must have reasons for what they do, and judges and justices had failed to find an acceptable standard to apply, the late Justice Antonin Scalia wrote, the answer was that there was no answer. The courts had no way to limit the power of a political party that dominated a state to draw electoral districts so as to secure it a majority in the state’s legislature and congressional delegation.
The results of such gerrymandering can be dramatic. Every congressional district in Ohio is now considered safe for one party or the other. And in Wisconsin, where the current case is from, the people challenging the gerrymandering of state Assembly districts there say the GOP managed to stack the deck so heavily that even when a majority of the people voted against it in 2012, it still had a supermajority in that body.
There’s no way to guarantee that when voters are divided into districts, the party that gets a majority of the votes will win the majority of the seats. But when the party that drew the map is practically guaranteed a legislative majority, it devalues the votes of the people who’re locked into a permanent minority. The more certain it is that whoever wins a certain party’s primary will be elected, the less the general election matters.
Yet under the Constitution, everyone’s vote is supposed to have the same weight.
That concern may seem merely theoretical, especially because there will be some safe districts almost no matter how the lines are drawn. But when government officials intentionally draw a biased map, they are deliberately discriminating against the members of the other party. And the government has no right to discriminate against citizens because of their political beliefs.
The impact of this discrimination may extend beyond Election Day. If representatives focus on winning primaries instead of convincing the broader electorate, that could contribute not only to ideological extremism, but to a lack of respect and concern for Americans who typically vote for the other party.
If the Supreme Court can find a way to reduce partisan gerrymandering, it may do more than uphold the Equal Protection Clause. It may help bring our country back together.
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