Last Thursday, when the Supreme Court handed down its ruling on Rucho v. Common Cause, it legitimized one of the cornerstone elements of voter suppression in the United States. The Court ruled that the federal government could not impede partisan gerrymandering on the state level, even while conceding that gerrymandering might produce unjust outcomes. Aided by new software that maximizes partisan advantage, state legislatures, which are overwhelmingly in the hands of Republicans, have redrawn voting districts largely to the disadvantage of Democrats. The technology has enabled gerrymandering to such an extent that it effectively nullifies the possibility of equal representation for voters. In 2012, Wisconsin Democrats won just over fifty-one per cent of votes in legislative elections; they came away with just thirty-nine of the legislature’s ninety-nine seats. By contrast, Republicans in the 2014 elections won fifty-two per cent of the votes, and that translated into sixty-three seats.
The North Carolina legislature, which has consistently been challenged for voting policies that negatively impact minority voters, in 2016 created a map so heavily gerrymandered that the districts resembled abstract art. The legal challenge from the government watchdog organization Common Cause held that such nakedly partisan districting violated the First Amendment rights of people living in districts that stood little chance of electing someone who shared their political outlook. (A second case, Lamone v. Benisek, involved an accusation of gerrymandering that favored Democrats in Maryland.)
There is nothing novel about the tactic—the word “gerrymander” dates back to 1812, when Elbridge Gerry, the governor of Massachusetts, signed a bill that redrew district lines in ways that favored his Democratic-Republican Party. By 1868, the National Encyclopedia referred to gerrymandering as “a method of arranging election districts so that the political party making the arrangement will be enabled to elect a greater number of representatives than they could on a fair system, and more than they should have in proportion to their numerical strength.”
Yet gerrymandering’s long history should not be mistaken for inevitability. Three years ago, Justice Ruth Bader Ginsburg wrote an opinion, in Arizona State Legislature v. Arizona Independent Redistricting Commission, that pointed to the importance of impartial redistricting commissions, which could “impede legislators from choosing their voters instead of facilitating the voters’ choice of their representatives.”
The Rucho decision comes in the context of a broader assault on the rights of voters and the electoral system. The current attack, like much of American politics today, is directly rooted in a fear of the United States becoming a society in which minorities make up the majority of the population. It is not coincidental that Rucho arrived at the Court at the same time as a case regarding the Trump Administration’s plans to include a question about citizenship status on the census. Following the death of the Republican strategist Thomas Hofeller, his daughter Stephanie Hofeller turned over e-mails in which he argued that including a citizenship question on the census would help Republicans create even more gerrymandered districts. The Court rejected an argument that a citizenship question needed to be added in order to better adhere to the Voting Rights Act—a position of transparently bad faith, given that the question would likely decrease minority electoral participation, rather than facilitate it. The majority ruling, however, implied that some other justification for adding a citizenship question to the census might prevail. (On Tuesday, the Administration announced it would drop its efforts to add a citizenship question to the census.)
In an era when Immigration and Customs Enforcement raids have rendered undocumented people afraid of going to their workplaces, schools, and churches, or of travelling by bus or airplane, the presumption should be that census data showing where undocumented families reside would be a tool for mass deportations. The net effect of this would be a population undercount, and, therefore, a skewed understanding of which areas warrant additional representation in Congress, education funds, and social services. Given voting patterns in the United States, partisan gerrymandering does not simply place one political party at a disadvantage. It places certain groups at a disadvantage. The vast majority of African-Americans and significant numbers of Latinos vote Democrat, and those groups will be adversely impacted by policies that make it more difficult for the Democratic Party to win elections. When Justice Elena Kagan remarked in her dissent on Rucho that the use of Big Data technology to intensify gerrymandering “imperils our system of government,” she was not being hyperbolic. The precision of these districts will generate Republican majorities that will then retain the power to draw even more favorable districts, in a tribalistic feedback loop.
In 2013, the Supreme Court eviscerated the Voting Rights Act, holding, in part, that the law unfairly assumed racial bias on the part of white Southerners. Yet the segregationist South is the direct inspiration for the current wave of challenges to voter access. Voter suppression in the days prior to the 1965 Voting Rights Act was not solely a means of enforcing the racial subordination of black people. It carried distinct partisan advantages for the Democrats, who dominated the region politically. The Fifteenth Amendment, which enfranchised black men, was part of a calculation meant to produce more Republican voters. By disenfranchising black voters, white segregationists simultaneously enshrined one-party Democratic rule in the South. The parties have essentially switched positions, and we are now talking about a national phenomenon, not a regional one, but the underlying dynamic remains the same.
Last year, the Supreme Court’s ruling in the case of Husted v. A. Philip Randolph Institute upheld an Ohio law that allowed states to purge names from voting rolls if those persons had not voted recently or not returned a mailer affirming their address. That process echoes mechanisms like poll taxes that were used to racially curate voter rolls in the Deep South. (Last week, Florida’s governor signed into law a poll tax that countermanded a 2018 referendum, supported by sixty-four per cent of voters, that restored voting rights to people convicted of certain felonies.)
It is convenient but wrong to believe that the primary threat to American democracy is an abnormal President and the possibility of continued Russian interference in our elections. The far larger concern is the behavior of government institutions that are, as part of their daily, normal functioning, eroding even the pretense of equality. The nation’s politics are not only driven by a vengeful, paranoid demagogue who has exacerbated white fears of demographic change and strives to reënshrine archaic bigotries. Now, five Supreme Court Justices, presumably more staid, more conscientious, and more rational than the President, have aided him in that cause.
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