The process so far across the country shows why a cure is so needed. Politicians in North Carolina, Wisconsin, Utah and many other states are proposing cards that will skew the results in favor of the current party in charge. Already, some observers have noted that gerrymandering itself would likely allow Republicans to take control of the House of Representatives. Asymmetrical neighborhoods can minimize the power of minority groups. Gerrymandered cards can also literally allow a minority of voters to elect a majority of lawmakers. And they virtually eliminate all competitive districts between political parties.
Two years ago, the Conservative majority in the U.S. Supreme Court rejected a constitutional challenge to blatant partisan gerrymandering in the drawing of legislative maps by Republicans in North Carolina and Democrats in Maryland. Defying logic, he said federal courts cannot provide a legal rule when partisanship has infected the redistribution process too much. But the court then suggested that all was not lost, speculating that state law could provide a cure for the worst abuses.
Given the aggressive partisan behavior of state legislators, it may seem absurd to hope for a state-level solution. But in fact, state constitutions are a strong source of protection for voting rights, which means state courts could have a crucial role to play.
Virtually all state constitutions contain a clause granting state citizens the fundamental right to vote. (Only that of Arizona does not, but its courts have interpreted its state constitution as still essentially conferring the right to vote.) About half of state constitutions say elections should be “free,” ” free and equal ”or“ free and open. . “And some state constitutions, like Florida’s, even dictate rules that require fairness in redistribution.
The process will have to start with legal action. Voting rights activists – including Democrats who typically fare worse in these gerrymandered cards – will have to sue the cards in state courts, citing protections enshrined in state constitutions. There is already a precedent for this tactic: The Supreme Courts of North Carolina and Pennsylvania relied on these clauses to overturn openly partisan gerrymanders in the last round of redistribution, noting that when politicians choose their constituents instead of l Conversely, the elections are no longer “free.”
So far, while there have been challenges in state courts, Democrats and others have focused on litigation in federal courts – including under the Voting Rights Act, d ‘especially since many of the new cards will downplay the power of racial minorities. Unfortunately, however, the Supreme Court has made it more difficult for these claims to succeed, by issuing restrictive rulings that allow partisan card designers to use sophisticated algorithms to achieve their partisan goals while ostensibly complying with rules against diluting. minority voting rights.
But, at least so far, the court has not tried to curb state courts by using their national constitutions. (There is an argument, known as the “Independent State Legislature Doctrine,” which suggests that under the Constitution of the United States, state constitutions cannot compel state legislatures when drafting electoral rules; but although some judges have agreed with this concept, a majority of the Supreme Court has yet to endorse this radical idea in a single case.) State courts therefore offer the most solid way to challenge these cards. Voting rights advocates are missing a major source of protection if they fail to invoke these constitutional provisions of the state when challenging blatant partisan gerrymanders.
Republicans drew most criticism in this round, but they aren’t the only bad players in the gerrymandering game: Illinois Democrats crafted a congressional map that gerrymandered the state to eliminate two seats held by the Republicans. The card prompted Rep. Adam Kinzinger, a moderate Republican and one of former President Donald Trump’s most vocal critics among the GOP, to announce that he would not stand for election, knowing he would be little. likely he will win a primary against his compatriot Republican. Darin LaHood, who was drawn to the same neighborhood. So Republicans could also use Illinois’ constitution to challenge an unfair map.
If litigants do not forcefully invoke state constitutions in their challenges, or if state courts follow the United States Supreme Court and also refuse to control partisan gerrymandering, then nothing will prevent the powerful from s’ anchor in power for at least the next ten years. Democracy itself – where the voters themselves determine the winners through a fair and equal process – is at stake.