Texas is seeking to further gerrymander its congressional districts in favor of Republicans. Two-thirds of Texas House seats are currently held by the GOP even though the statewide vote for Trump in 2024 was only fifty-six percent. The Texans are now seeking to ensure that eighty percent of the seats are filled by Republicans. Texas Republican votes will in essence be weighted more heavily than Democratic ones. Slightly more than half the voters will pick four out of five Representatives while slightly less than half will pick twenty percent of the seats.
The United States Supreme Court faced a similar situation in the second half of the twentieth century. At that time some states did not require periodic redistricting of their state legislatures. With population growth and shifts, legislative districts that once may have held equal populations became unequal, but each was still entitled to the same representation in the state capital. For example, in Tennessee, two-thirds of the state representatives were elected by one-third of the state’s voters. One Alabama district had a population of 634,864 and another had 15,000, and each had one state senator. Within each district, votes were equal, but when the state was looked at as a whole, votes were unequal.
This only changed because the United States Supreme Court adopted what now is called the one-person, one-vote doctrine. The constitutional guarantee of equal protection, the Court recognized, requires that each vote within a state be equal to all the other votes in the state, and therefore legislative districts must have comparable populations.
The Court actions comported with a constitutional theory about the Court’s role in our government. In 1938, the Supreme Court said that courts must have a strong presumption that our laws are constitutional. Under our system, the elected legislatures and executives (the political branches) adopt our laws. If a law is perceived as bad or unreasonable or unwise, it is up to those elected branches to change it. It is not for the federal courts to determine the wisdom of a law. However, the Supreme Court also outlined three exceptions to that strong presumption of constitutionality. First, constitutionality cannot be assumed for a law or action that appears on its face to violate a provision of the US Constitution, especially the Bill of Rights. The Court also said that it would scrutinize closely laws that discriminate against “discrete and insular” minorities, especially racial, religious, and national minorities, particularly those who lack sufficient numbers or power to seek redress through the political process. Finally, the Court should not grant a presumption of constitutionality to laws and practices that restrict the political process. The Court, in other words, should have a more active role when laws and practices prevent the political process from mirroring the will of the people.The political process in Tennessee and Alabama was not likely to change the inequality of voting districts. Representatives from small districts were not willingly going to give up their disproportionate power. The system that gave some voters more power than others stayed in place until the Supreme Court acted. The Court furthered political democracy by doing so.
Partisan gerrymandering is akin to those unequal districts the Supreme Court confronted in the twentieth century. The political process will not remove anti-democratic congressional boundaries when the line-drawing party perennially controls the state legislature. Although the minority party is not what the Supreme Court meant by a “discrete and insular minority,” it is very much like one since the political process cannot prevent discrimination against it. And if a party has gerrymandered congressional districts, it almost always also has gerrymandered state legislative districts. When that is the case, and it is true throughout this country, a mere majority in the state does not change the control of the legislature. Thus, a controlling party can distort the political process to continue its control. Gerrymandered state legislatures have drawn lines so that one party will have more state representatives than is warranted by the statewide popular vote. To change the legislature, the out-of-power party must not only retain its majority in the districts where it now wins but must also get majorities in the districts that are stacked against them. In reality, one party will need a supermajority of votes to get the governmental reins while the party that gerrymandered can retrain control with a minority of the vote.
The Supreme Court has recognized that “partisan gerrymandering” may be “incompatible with democratic principles.” Even so, the 5-4 2019 decision Rucho v. Common Cause, written by Chief Justice Roberts, said that “partisan gerrymandering claims present political questions beyond the reach of the federal courts [Emphasis added].” If gerrymandering is a “political question” as the Court stated, you might think that there would be a political process to address its abuses, but the Court, for the good reason that there is none, did not suggest any. It is as if the umpires turned their backs and walked off the field saying that while it does not seem right, the home team can call balls and strikes. And, thus, due to the Court’s inaction, the constitutional rights to equal protection and due process do not govern partisan gerrymandering.
With the abdication of the United States Supreme Court, some who seek better, more democratic government have gone to state courts contending that partisan gerrymandering violates state constitutions. The results have been mixed. Some state supreme courts have adopted the U.S. Supreme Court reasoning and will not consider partisan gerrymandering cases, while a minority of state courts have held that partisan gerrymandering does violate their state constitutions.*
In some ways, however, this just compounds the problem. Many states can freely gerrymander while a few states cannot. As a result, the political parties of the gerrymandering states have even more power than if all states gerrymander. They get the unwarranted number of representatives from their states and still get the deserved number from the other states.
Gerrymandering not only makes votes unequal. It also increases uncompromising partisanship. In a “safe” district, a candidate does not have to appeal to the other side — or even to the center — to get elected. The candidate merely must win the party’s primary. The candidate does not ever have to appeal to the majority of the electorate, but only to the partisans voting in the primary. And when elected, members from a gerrymandered district can indulge their partisan ideology without political retribution. We become a more polarized country as a result.
It also affects the mindset of elected officials. In the early days of the country, the electoral franchise was limited. Property requirements prevented some people from voting, and, of course, women could not vote. They, however, were not unrepresented. The elected official represented everyone in the district because everyone in the district was counted whether they could vote or not.** We see that today in a modified form. Children cannot vote, but the elected official represents them. The representative theoretically represents everyone in the district. But with gerrymandering that is not how many elected officials operate.
Recent raucous town halls should remind us of that. Conservative commentators point out that calls went out for Democrats to attend the town halls, and therefore the town halls should be discounted. In essence, the commentators are saying that critics should be disregarded. After all, those critics do not vote in the only election that matters in a gerrymandered district—the primary. When elected officials feel that they do not have to listen to people in their districts, they no longer feel that they have to represent them. But gerrymandering encourages our elected officials to act as if they represent only those who will vote in a primary.
The next midterms will raise important issues. The Republicans worked hard to pass that Big, Beautiful Bill. They claim it is good for the country. The tax cuts will increase prosperity. The changes to Medicaid will improve the program. Those who voted for or support the law should be willing to explain and defend the BBB. Those who voted against or oppose it should also be willing to tell their constituents why. And, of course, there are other important issues. Increasingly, however, the next and future elections will not be decided by the issues but will be decided instead by which side can gerrymander more and better.
It was funny, and ludicrous, when Pat Paulsen, the comedian a generation or so ago, who “ran” for President, said, “I want to be elected by the people, for the people, and in spite of the people.” We now live in a world where “in spite of the people” is, alas, a dominant political strategy.
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*Civics courses have taught that the lower houses of the national and state legislatures are the most democratic and representative of our governmental institutions because the fewest number of voters select these representatives in frequent elections. With gerrymandering, however, these bodies have become increasingly unrepresentative of the people. However, officials elected in statewide elections are not gerrymandered into office.
Civics courses have often concluded that the courts are the least democratic of our institutions since they are the most removed from the electorate. But when state supreme court judges are elected in statewide elections, not in gerrymandered districts, the state supreme courts are more democratically selected than gerrymandered legislatures.
** Trump has now suggested that not everyone within a district should be counted for the census. Undocumented people, e.g., have heretofore been included in the census count, and hence should have been represented by the elected representatives of their district. Trump wants to exclude those people from the census. Will he exclude children next?
