Everyone is waiting for Wednesday’s Supreme Court argument regarding King v. Burwell and whether the phrase in the Affordable Care Act, “established by the states,” means what it plainly says. It’s the most important case on the Court’s docket this term because if the Court rules against the administration, ObamaCare will probably become financially untenable and so crash and burn, quite possibly taking the Obama presidency with it
But there is an important case being argued tomorrow morning, Arizona State Legislature v. Arizona Independent Redistricting Commission, that could adversely impact the movement to eliminate gerrymandering from American politics. It should be paid attention to.
Gerrymandering is named after Governor Elbridge Gerry of Massachusetts, who came up with the idea (although his name is pronounced with a hard G and the eponymous—and nefarious—practice he invented is pronounced with a soft one). It involves the setting of legislative district lines—whether state or federal—so as to give one party or the other partisan advantage. As someone described it, democracy is where the voters choose their representatives. Gerrymandering is where the representatives choose their voters. It is a wholly American perversion of democracy, unknown elsewhere in the English-speaking world.
The Court has always declined to flatly outlaw gerrymandering, although many people (myself included) think that it violates the 14th Amendment’s equal protection clause. After all, if you’re a Democrat living in a district carefully designed to return a Republican legislator, you are effectively disenfranchised. Your vote is worthless. That’s why Baker v. Carr (1962) rewrote the Court’s doctrine on “political questions” in order to require “one man, one vote.”
In 2002, Arizona voters in a public referendum took away the hopelessly self-interested state legislature’s power to draw district lines and established an independent commission to do it instead. The Arizona legislature sued, claiming that because the Constitution (Article I, Section 4) says that “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; . . .” only the state legislature has the right to set district lines. A special three-judge district court ruled (2-1) in the commission’s favor and the legislature appealed to the Supreme Court.
There is a standing issue, but if the state legislature survives that and the Court gets to the merits, George Will thinks the Court should give the state of Arizona a lesson in remedial reading. He accepts as self-evident the legislature’s argument that the “Manner of holding elections” includes setting district lines. To me, it means nothing more than deciding how the vote should be taken: paper ballots, machines, online voting, early voting, a raising of hands, etc.
Other states, including California, have been moving in this direction, especially as computers have made it possible to draw district lines with exquisite precision, even house by house, and so make more and more districts uncompetitive.
This also makes American politics more extreme. One of the reasons the center of American politics has largely emptied out in recent decades (although not the only one) is that as general elections have become less and less determinative, primaries have become more so. In primaries, the left in Democratic races and the right in Republican ones exert much more influence, pulling candidates one way or another. Indeed the word primary has recently become a verb, as in “If Congressman Snoot doesn’t vote this way on the widget bill, he’ll probably be primaried.”
Gerrymandering does not belong in the world’s oldest democracy.
