Students Speak: A government for the people, by the people?

To celebrate our first 50 years at The Santa Barbara & Ventura Colleges of Law, we’ve asked our students to revisit historical and noteworthy cases.

Every 10 years, congressional districts are redrawn by the states to take into account the new census. In 31 states, it is the state legislatures who create the congressional districts. In the remaining states the mapmakers are some form of independent commissions, advisory commissions, or politically appointed commissions. Unfortunately, because these maps are often drawn by political parties, they can be manipulated to favor a certain party.

Partisan gerrymandered districts create partisan warriors

Partisan gerrymandering is not healthy for the American Republic. When a political party draws the electoral boundaries, they can create “safe” seats where their party is likely to win. This increases the chances of electing certain House representatives that lead to maximum partisan advantage.

The real challenge for the House primary candidates in these safe, partisan seats is to win the party primary (Republican or Democrat) and not the general election. If a candidate wins the primary, winning the general election is nearly assured; a consequence of partisan, gerrymandered districts.

In order to win the partisan primaries, candidates will do their utmost to appeal to the hard-core, political party primary voters. They will appeal to the extreme ends of their ideology and stake positions that they know will win in their primary. This creates a hard-edged class of partisan representatives who put party-affiliated voters first, instead of representing all of their constituents. There is no need for this candidate to appeal to a broader segment of their constituents.

With these partisan-edged districts, you get partisan warriors elected to Congress. If a representative starts working, or even compromising, with the other party, they are met with howls of betrayal by outside interest groups. So these representatives have no interest in working across the aisle because their real constituents, their real employers if you will, are those voters who take part in the primaries and not the general election voters.

The Supreme Court speaks

In a narrow 5-4 decision in 2019, the Court’s conservative majority voted together to deliver a body blow to the American voter. They found that gerrymandering was not under the purview of federal courts.

“Partisan gerrymandering claims present political questions beyond the reach of the federal courts,” reads the decision. The decision stemmed from two cases before the Supreme Court dealing with extreme partisan gerrymandering: Rucho v. Common Cause, where the North Carolina Republican Party had drawn the Congressional maps; and Benisek v. Lamone where the Maryland Democratic Party were the mapmakers. Both cases were results of the 2010 redistricting efforts.

Rucho v. Common Cause

In the 2019 Rucho v. Common Cause case, the plaintiffs objected to the map as drawn because it had been designed to entrench the Republican Party’s power by creating as many safe, Republican Congressional seats as possible. While designing the seats, a key component was partisan affiliation.

According to Rep. David Lewis, a Republican co-chair of the General Assembly’s redistricting committee at the time, “the Partisan Advantage criterion to legislators was as follows: We are draw[ing] the maps to give a partisan advantage to 10 Republicans and 3 Democrats because [I] d[o] not believe it[’s] possi­ble to draw a map with 11 Republicans and 2 Dem­ocrats.”

The consequences of that redistricting effort in 2016 was that with only 53 percent of the statewide vote, the Republicans managed to capture 10 of the 13 Congressional seats. In 2018, with 50 percent of the statewide vote, it was 9 of 12 Congressional seats, with the final one in dispute due to election fraud.

Benisek v. Lamone

In Maryland, a similar situation unfolded but this time, it was the Democrats wielding power. Democratic Gov. Martin O’Malley’s criteria when drawing up the districts was “to create a map that was more favorable for Democrats over the next ten years.”

The Maryland 6^th Congressional District had historically been a Republican stronghold. The Democratic mapmakers set out to change that and turn the seat Democratic. They removed 360,000 voters from the district, and added 350,000 different voters into the district. The end result was a gain of 24,000 Democratic voters. As a result of these changes, the 6^th District has elected a Democrat in a once Republican district.

“Democrats have never received more than 65 percent of the statewide congressional vote. Yet in each of those elections, Democrats have won…7 of 8 House seats.”

Partisanship in Congress

The problem and dangers of partisan warriors legislating is that there is no appetite for reaching across the aisle. How is meaningful legislation supposed to pass if the representatives come from extreme ideological positions? Where is the middle ground? Is this type of gridlock how the Founding Fathers imagined the political system working?

Dissenting Supreme Court Justice Kagan detailed the harmful results of partisan gerrymandering in his dissent. “Among the amicus briefs here is one from a bipartisan group of current and former Members of the House of Representatives. They describe all the ways partisan gerrymandering harms our political system—what they call ‘a cascade of negative results.’

“These artificially drawn districts shift influence from swing voters to party-base voters who participate in primaries; make biparti­sanship and pragmatic compromise politically difficult or impossible; and drive voters away from an ever more dysfunctional political process…we heard much the same from current and former state legislators.

“In their view, partisan gerrymandering has ‘sounded the death-knell of bipartisanship,’ creating a legislative environment that is ‘toxic’ and ‘tribal.’ Gerrymandering, in short, helps create the polarized political system so many Americans loathe,” Justice Kagan writes.

These partisan legislators turn their back on the rest of their district and instead work on, vote on, and legislate affairs and issues that only appeal to a narrow segment of their total district population.

It’s up to the states

In the end, there is no relief to be found in Roberts’ Supreme Court decision. The way forward for reform will have to come from citizen actions within states. There is hope with some action that is currently occurring.

The 2018 elections had gerrymandering changes on the ballot and voters passed those reform efforts in Colorado, Michigan, Missouri, Ohio, and Utah. These states passed reforms by overwhelmingly bipartisan margins to make future map drawing fairer and more transparent. In 2019, two more states, New Hampshire and Virginia, have also passed legislature to address redistricting.

Partisan gerrymandering distorts the electorate. At its extremes, its political parties rig the system to ensure that the citizen voters have no meaningful choices. Those districts, regardless of voter interests, will elect a certain party because the political parties can, will, and have created districts to entrench their own side of the aisle. If representatives are elected in safe, partisan districts, is it still truly a government for the people and by the people?

ABOUT THE AUTHOR:

Jeff Lee is in the Hybrid Juris Doctor program at the Colleges of Law, and is a member of Delta Theta Phi.

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