By John Arnold
A fundamental characteristic of representative democracy is that people get to elect their politicians. Last month, in a 5-4 decision, the U.S. Supreme Court ruled that federal courts have no power to stop politicians from picking their voters. The implications of this decision extend well beyond any near-term partisan advantage. It effectively gives politicians carte blanche to entrench themselves without fear of accountability from voters or federal courts.
For every American who believes it’s our collective responsibility and collective destiny to continue on the path of establishing a more perfect union, last week’s decision was a setback. But it was not the end of the fight — not even close.
Where the court failed to act, the people can — by working through their representatives, courts and direct democracy to pass laws in states and eventually Congress that limit partisan gerrymandering.
It won’t be easy. Gerrymandering has been an unfortunate feature of our republican system since its founding. George Washington famously accused Patrick Henry of drawing Virginia’s districts to promote James Monroe over James Madison during the nation’s first congressional election.
The difference today is that Henry didn’t have terabytes of voter data and advanced mapping software enabling him to group Anti-Federalist Party voters down to the individual household.
Over the past decade, redistricting has transformed from an ignoble art into a cruel science that partisans can use to remove all semblance of competition from the electoral process.
General election outcomes are now predetermined for a decade at a time, resetting with each census.
The results distort legislative bodies beyond anything that could be accurately described as representative government. Just look at the bizarre swirl of Texas’ serpent-like 2nd Congressional District or the way that Austin is sliced and diced among six representatives, and you can tell that something’s wrong.
Hard stats from the two states that sparked the court’s decision, however, make an even more compelling argument. Democrats in Maryland have manipulated congressional maps so they regularly win 87 percent of seats despite never receiving more than 65 percent of the statewide vote. And Republicans in North Carolina successfully reshaped congressional districts so they could win a majority of seats despite receiving less than a majority of votes.
Here in Texas, Republican politicians have used partisan gerrymandering to carve out four more congressional districts than they would otherwise receive under straightforward proportional representation.
With general elections a foregone conclusion, the real race shifts to obscure party primaries — empowering the partisan faithful and silencing everyone else.
Asking voters to work within that system is patently unfair. No matter how hard one works, no matter how many times a party wins statewide, somehow the entrenched power structure will hang on. That’s why this case before the Supreme Court was so important — and why the outcome is so depressing.
As Ames Grawert of the Brennan Center wrote, “(Justice John) Roberts seems to think that if you’re gerrymandered into a minority, your only remedy is using your unfairly diluted nonexistent political power to fight it.”
Despair in these moments is understandable, but that’s not the American way. The battle is poised to move from the courts to the people. We saw evidence of that in 2018, when voters in Ohio, Utah, Colorado, Michigan and Missouri successfully passed bipartisan anti-gerrymandering initiatives.
Similar efforts are underway in places like Arkansas and Oklahoma. Opposition to politicians stacking the deck in their favor doesn’t hue red or blue — voters of both parties and no party abhor it when elected officials show themselves to be looking out for their own self-interest as opposed to the public good.
So where does that leave us? Federal courts may have shut their doors, but state courts have their own laws and standards of review. For example, Pennsylvania courts struck down political gerrymandering under the state constitution’s own “free and equal” elections clause — which doesn’t exist in the U.S. Constitution.
A similar outcome may happen this year in North Carolina, where the elected State Supreme Court could prove less amenable to partisan gerrymandering than its appointed peers serving lifetime terms at the federal level.
Voters can also work within their state legislatures to build support behind anti-gerrymandering solutions. This year, lawmakers in New Hampshire passed bipartisan legislation to create an independent redistricting commission that is currently on Gov. Chris Sununu’s desk. The Virginia Legislature approved a constitutional amendment to do the same, which, if passed again next year, will put the question to voters in 2020.
Perhaps much of this would have been unnecessary if the Supreme Court had simply saw partisan gerrymandering for what it is — an assault on democracy.
The path forward will be tougher than it needed to be, and it is critically important to get reforms in place before the post-2020 redistricting. For our part, we’re redoubling efforts to invest in efforts to pursue reform in states.
We cannot tackle the gravest challenges unless our democracy functions to represent the will of its people. We now need people to make their will known, with their voices, their votes and their wallets. Even if gerrymandering is legally tolerable, we have the power to make it politically untenable — and that is a power we must now exercise.
John Arnold is co-chair of Arnold Ventures .