What are the restrictions against gerrymandering

Beating democracy: The Gerrymandering Decision and its Consequences

by ROMAN KAISER

The gerrymandering in the USA can go on: Last Thursday the Supreme Court ruled with 5: 4 votes that party political constituency manipulations are not subject to federal judicial review (Rucho v. Common cause). The court sees the attack on democracy - and does nothing. After the 2020 census, there will again be massive constituency manipulation in many US states. Because resistance from the political process is in a bad way, the hope is now that the courts of the states will meet their responsibilities.

Partisan gerrymandering

“Gerrymandering” refers to constituencies in which certain groups of voters are added to or removed from a constituency in order to influence the election result in favor of or to the detriment of certain constituency candidates and / or their parties. * This need not necessarily be done with malicious intent. This is how it goes with the so-called affirmative racial gerrymandering about ensuring adequate representation of ethnic minorities. However, this is extremely problematic partisan gerrymanderingthat aims at party political advantages. In its most extreme form, it allows a party to remain in power regardless of changing election results.

In the United States, Gerrymandering can be traced back historically to the 18th century. However, it has only taken on special proportions since the 2010 census. One reason is the ever more accurate demographic data about the electorate and the ever better technical possibilities of manipulative constituency division. The other reason is that the judiciary has not stopped this activity for a long time. In particular, the Supreme Court justices who have spoken of the partisan gerrymandering had to decide, always found that too much consideration of party political considerations leads to the unconstitutionality of a constituency layout, but they were never able to agree on a corresponding test standard. While the two major parties - unhindered by the courts - constructed constituencies in increasingly grotesque forms, legal and political scientists made various attempts to find a suitable yardstick for the control of Gerrymandering.

Majority opinion

Such a standard cannot be found. At least that is the view of the “conservative” majority in the Supreme Court, for which Chief Justice Roberts wrote the reasons for the decision. In the absence of a yardstick, the assessment of gerrymandering is a "nonjusticiable political question". At the first level it is not clear what fairness of representation means. Gerrymandering appears unfair mainly because of the deviations of the election result from proportional representation. The Constitutional Fathers had not planned a system of proportional representation. The necessary decision between the various possible concepts of fair constituency allocation is not a legal but a political question. It is not for the courts to make a choice here. And even if there were a constitutional definition of fairness, there would be no yardstick to answer the question on the second level: "How much is too much?"

Effects of gerrymandering

The majority of the courts must be allowed to raise difficult legal questions. Given the drastic effects of gerrymandering, however, it must be disappointing that she cannot find any answers. In North Carolina, Republicans commissioned constituencies with the express aim of ensuring that they would always win ten of the 13 congressional constituencies. One of the responsible MPs justified this bluntly: “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country. ”The only reason for the 10: 3 distribution is that it is not possible to divide the constituencies so that the Republicans get eleven seats. In the other case, the Democrats in Maryland were hardly less unrestrained in order to get a seventh of the eight seats there in the US House of Representatives. This shows the full extent of extreme gerrymandering. At the end of the day, it is no longer the voters who vote their MPs, but the MPs who vote their voters. The majority deprives the minority of a realistic chance of becoming a majority - and thus eliminates one of the fundamental requirements of the democratic majority principle. In the words of Judge Kagan's dissenting opinion, this can be described as “beating democracy”: Politicians defeat democracy.

Minority opinion

The dissenting opinion of the four “liberal” judges is based on this finding and raises the (rhetorical) question: “Is that how American democracy is supposed to work?” The minority opinion therefore sees the courts as responsible. Your solution to the problem of scale is not to have the courts set up criteria, but to base them on the politically neutral criteria of the constituency division applied by the respective federal state. If you determine all conceivable constituencies that meet the respective neutral criteria, you can determine the extent to which the party-political advantage is in the specifically chosen constituency division. In the case of North Carolina it shows that out of 3000 possible constituencies, the one (!) That promised the Republicans the most seats was chosen. It is true that in the abstract one cannot specify a precise limit beyond which a constituency layout is unconstitutional, but at least for these extreme cases it can be said: "This much is too much."

Consequences of the decision

From a legal point of view, the majority decision is disappointing mainly because it raises important legal questions, but then does not seriously deal with the answers of the dissenting opinion. The concise argument that the standards of the four other judges differ from state to state and are not precise enough is very superficial. But the political consequences are even worse. It is to be feared that both parties (one more than the other) will continue their gerrymandering program and that American democracy will be further undermined. With its decision, the Supreme Court reopened the floodgates for attacks on democracy after it passed in 2010 Citizens United allowed unlimited campaign donations from legal entities (and thus enabled the so-called Super-PACs) and in 2013 in Shelby County v. Holder repealed a central provision of the Voting Rights Act of 1965 aimed at ensuring the right to vote for minorities.

For the gerrymandering, the Supreme Court is now giving the ball to the political process. On the one hand, the majority opinion reminds us that the US Congress can, through federal law, impose requirements on the states for the allocation of constituencies. However, some attempts of this kind have already failed and so there should be little chance of success even for the latest legislative proposal. On the other hand, the judges refer to the possibilities of voters in the states to oppose gerrymandering through referendums. Indeed, in some states last year, such initiatives were successful and independent constituency commissions were introduced. (Interestingly, a few years ago the Conservative side of the Supreme Court, in a dissenting opinion, held such constituency commissions unconstitutional.) In most states, however, changes to the electoral law cannot be made against the will of parliament, so that this path is also blocked. The best ways to restrict gerrymandering are therefore likely to be in the state courts. You can handle the respective state constitution differently than the Supreme Court can handle the federal constitution - if only because some state constitution contains special provisions on the fairness of elections. For example, the Florida and Pennsylvania Supreme Courts have ruled constituencies unconstitutional in recent years. If the gerrymandering problem has its home in the states, then perhaps the same may apply to the solution. It is to be hoped for the good of American democracy.

* More on the factual and legal aspects of gerrymandering in the USA and especially in Germany at Michl / Kaiser, JöR 67 (2019), p. 51 ff. A short summary for Germany can be found on the Verfassungsblog.

Suggested citation: Roman Kaiser, Beating democracy: The Gerrymandering decision and its consequences, JuWissBlog No. 75/2019 v. 4.7.2019, https://www.juwiss.de/75-2019/


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