Gerrymandering harms democracy by making votes unequal. The North Carolina electorate splits roughly equally between Republicans and Democrats. Thus, the democratic result should be that the fourteen representatives that the state sends to Congress should be equally divided between the parties. North Carolina, however, has been severely gerrymandered, and ten of the representatives have been Republicans. Therefore, half the people elect 70% of the representatives and their votes count more than those of the other half. Of course, gerrymandering has been with us from the inception of the republic, but today, with modern tools of data collection and analyses, rigging districts is easier and more exacting. The partisan goal is to make as many “safe” districts for a party on the electoral map as possible and to undercut the democratic notion that the voting majority should control.
Legal remedies for changing this are weak or nonexistent. Gerrymandered state legislatures draw lines so that one party will have more state representatives than warranted by the statewide popular vote. To change this, the other party has to get more than a majority that it would need to remove a disfavored governor. Instead, the lesser party must not only retain its majority in the minority of districts where it now wins, but also get majorities in the districts that are stacked against them because of gerrymandering. The disfavored party will in reality 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 United States confronted a similar situation in the second half of the twentieth century. At that time some states did not require periodic redistricting of their state legislature. With population growths and shifts, legislative districts that once may have held equal populations became different in size, but each was still entitled to the same representation in the state capital. 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, and the electoral process was not about to change that. Representatives from small districts did not willingly give up their disproportionate power.
This only changed because the United States Supreme Court stepped in and 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 would have to have comparable populations.
The recent Supreme Court, however, has viewed partisan gerrymandering differently. Rucho v. Common Cause, decided in 2019, said that “partisan gerrymandering” may be “incompatible with democratic principles.” Even so the 5-4 decision, written by Justice Roberts, said that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” If gerrymandering is a political question as the Court stated, you might think that there would be a political process to address any problems, but the Court, for the good reason that there is none, did not suggest one. 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, the constitutional rights to equal protection and due process do not govern partisan gerrymandering.
Of course, the goal of gerrymandering is not only to make votes unequal, it also seeks to make elections meaningless. Originally gerrymandering was about individuals. Legislative districts were manipulated to have a particular person elected or defeated, but that changed over time to ensure that the member of a particular party, no matter who the individual candidate was, would win the seat. In a successfully gerrymandered district, the election is not about voter turnout, issues, or even personalities. The outcome is set by the district lines that are drawn before the election. The ballots are a mere formality. I see reports of elections from various autocratic countries where the leader gets a ludicrous percentage of the votes, often just short of 100%. The election, of course, is a sham; it is meaningless, and it means that that country is not a democracy. A gerrymandered district in the United States where the election is meaningless is not part of a democracy either.
Friends discount this by telling me that all sides try to draw district lines to their advantage. That has been true, but we should recognize that partisan gerrymandering of the sort we now have does not have ancient roots. Commentators see it starting in the last two decades of the twentieth century. By 2000, 300 of 435 House seats were safe for one party or the other, but now safe seats have increased. News reports in 2020 said that perhaps only fifty seats were truly contested ones, and after the round of gerrymandering that followed the last census that number may be lower.
Reform seems remote. Gerrymandered state legislatures are unlikely to ungerrymander themselves, which gives the incentive for gerrymandering elsewhere. If a surfeit of Republicans is produced in one state, a Democratic state quite naturally seeks to gerrymander its bailiwick for balance. State courts are the only possibility of reform, but not all, if any, state courts will address the undemocratic process,* and uneven reform may merely yield additional power to the political party that will still be able to gerrymander in other places.**
Finally, there is another potential challenge to our democracy, which could be the most devastating one. Right now, gerrymandering undercuts democracy, but it does not affect the presidential vote or statewide elections such as that for governor. Of course, it matters if voters do not have equal access for these non-gerrymandered elections, but the balloting still matters. However, we now have movements to change the vote counting and certification processes with the suggestions that the new officials will have the power to overturn elections when they don’t like the outcomes. We have the potential that no election will matter in the future.
And then democracy will not just be waning or under attack; it will be dead.***
*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 unrepresentative of the people. The 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 non-gerrymandered statewide election, the state supreme courts may be more democratic than the legislatures.
**Gerrymandering has harmed government also by increasing 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 gerrymandering district can indulge their partisan ideology without political retribution. We become a more divided country as a result.
***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 a dominant political strategy.