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Eric Davis: Opportunity for fairer elections missed

The Supreme Court recently issued four decisions about gerrymandered legislative districts. Taken together, the rulings are a major disappointment to those hoping that the high court would provide lower federal courts with guidelines showing how state legislatures can violate the Constitution when they draw district maps that make it very difficult for racial or political minorities to win legislative seats approximating their proportion in the population.
In three states, plaintiffs challenged maps drawn by Republican legislative majorities. In Wisconsin, Republican and Democratic candidates each received 49 percent of the vote cast across all the districts in the state House of Representatives, but Republicans won 61 percent of the seats. In North Carolina, a Republican legislative majority drew a map that enabled GOP candidates to win 71 percent (10 out of 13) of the state’s U.S. House seats with 53 percent of the aggregate vote cast for all House districts in the state.
In Texas, all the maps — for the U.S. House and for both houses of the state legislature — were challenged on grounds that Republican legislators packed African-American and Hispanic voters, who tend to support Democratic candidates, into a small number of districts that Democrats won by overwhelming majorities, in order to maintain majorities of white voters in the remaining districts, most of which were won by Republican candidates.
One of the cases before the Supreme Court involved claims of gerrymandering by Democrats. Republican voters in western Maryland alleged that Democratic legislators, and a Democratic governor, drew a congressional district map that dispersed them among several districts, rather than keeping them in a compact district in the state’s western panhandle. This map resulted in the election of Democrats to all eight of Maryland’s U.S. House seats.
In three of the cases — those from Wisconsin, Maryland, and North Carolina — the Supreme Court did not reach a decision on the major question at issue: does partisan gerrymandering violate the Constitution, either the Fourteenth Amendment’s command that states shall not “deny to any person within their jurisdiction the equal protection of the laws,” or the First Amendment’s protection of the rights of political speech and assembly.
These three cases were sent back to the lower federal courts, either because the evidentiary record was inadequate for Supreme Court review, or because the plaintiffs had not demonstrated, in a particularized and individual way, that they were harmed by every one of the allegedly gerrymandered districts.
In the Texas case, by a vote of five to four, the Supreme Court ruled in an opinion written by Justice Samuel Alito that the challenged districts did not violate the constitutional or statutory rights of minority voters, with the exception of one district in the 150-member Texas House of Representatives. Justice Sonia Sotomayor wrote a vigorous dissent, noting that constitutional and statutory rights mean nothing if federal courts will not enforce them, and that there was a long record of racially-motivated decisions by the Texas Legislature to suppress minority voters’ ability to influence election outcomes in the state.
With the exception of the Maryland case, all of this year’s Supreme Court decisions on legislative districting ended up benefiting Republicans, by leaving in place the allegedly gerrymandered district maps for the 2018 elections, and probably in 2020 as well. In recent years, the Supreme Court had given hints that it might rule partisan gerrymandering unconstitutional, but this month’s decisions impose rather high procedural and substantive barriers for plaintiffs seeking to make that argument.
In many states, gerrymandered district maps have resulted in very few competitive elections for either the U.S. House or state legislative seats. In effect, majority party legislators in those states — usually Republicans — have created a situation where the representatives determine who their voters are, rather than the voters determining who their representatives are.
Eric L. Davis is professor emeritus of political science at Middlebury College.

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