Why Democracy is Under Threat by Gerrymandering?

In the United States, one of the major threats to democracy is gerrymandering, which is the drawing of electoral district boundaries in a way that establishes a political advantage for a specific party. Oftentimes, voter blocs are either packed into a single district or are broken up into multiple districts in order to limit their political power. Therefore, gerrymandering strips people of their ability to have their policy preferences reflected in Congress. For example, in Ohio after the 2018 election, Republicans held 12 of the state’s 16 congressional seats, which is 75% of the districts, while only winning 52% of the votes in all of the districts statewide. On the other hand, Democrats won 25% of the congressional districts with 47% of the statewide vote. Both Dahl and Schumpeter agree that democracies must have political leaders compete for voters [1, 2]. Gerrymandering reduces the competition in certain congressional districts since their boundaries are drawn to favor either the Democratic or Republican party.

Ozan Varol also mentions briefly in “Stealth Authoritarianism” that gerrymandering is a common way to sneakily promote authoritarian practices by raising the costs of unseating the incumbents [3]. When the congressional districts are designed in such a way that ensures that one party maintains control on a statewide level, this prevents the opposition from being able to gain power. Therefore, gerrymandering is undemocratic as it hinders political competition and stifles political representation of voters.

The Courts as a Check

Tom Ginsburg and Aziz Huq question how courts are able to act as institutional checks in How to Save a Constitutional Democracy. They argue that in order for courts to actually act as a check on nondemocratic actions, they must have the ability and willingness to do so [4]. They mention that it is unclear whether courts have the necessary motivation to act as shields against democratic erosion as many judges are appointed by the officials that they are supposed to curtail and “a court must either be willing to protect the liberal speech and association rights of regime opponents, or else be able to stand firm against efforts to dismantle either intrabranch or interbranch constraints on government power” [5]. Thus, courts may not have the incentives to intervene against gerrymandering.

However, in recent years, we have seen that this is not the case. A growing number of federal courts have held that partisan gerrymandering is unconstitutional. The congressional maps of the states of Michigan and Ohio are the most recent examples of the federal court system stepping in to hinder partisan gerrymandering. This may give us some hope in the quality of the United States’ institutional guardrails of democracy.

On April 25^th, a federal court in Michigan found that the state’s Republican-controlled legislature unfairly drew some of Michigan’s state legislative and U.S. House district boundaries. The panel of three judges said that 27 of the 34 challenged districts diluted the weight of people’s votes and that every challenged district is unconstitutional. The court mandated that the lawmakers in the Republican-controlled legislature must redraw the boundaries and that these lines must be approved by Michigan’s governor, who is a Democrat, by August 1^st or else the court will draw the new maps itself.  And just recently, on May 3^rd, a three-judge panel from the U.S. District Court for the Southern District of Ohio found that Ohio’s congressional map is an “unconstitutional partisan gerrymander.” They argued that the congressional maps were drawn “to disadvantage Democratic voters and entrench Republican representatives in power.” The court argues the map violates voters’ constitutional right to choose their representatives and exceeds the state’s powers under Article I of the Constitution. The judges mandated that the congressional boundaries be redrawn before the 2020 elections.

While these rulings are likely to be appealed to the Supreme Court, they show a growing trend of the federal court acting to rein in harmful gerrymandering. Since November 2016, federal courts and state supreme courts nationwide have also struck down entire maps in Wisconsin, Pennsylvania and North Carolina. Courts have additionally overturned individual districts in Maryland, Virginia and Florida as either unconstitutional racial or partisan gerrymanders. This case of federal courts striking down gerrymandered congressional districts shows that, at least for now, the United States has a court system that is willing to act as a shield against democratic erosion. In order to ensure that the courts continue to view gerrymandering as a serious threat to democracy, people must put pressure on them and continue to pursue legal battles over unfairly drawn congressional district boundaries.

References

1. Dahl, Robert. “Democratization and Public Opposition.” In Polyarchy: Participation and Opposition, 1-16. New Haven: Yale Univ. Press, 1972.
2. Schumpeter, Joseph. 1947. Capitalism, Socialism, and Democracy. New York: Harper & Brothers. Chapter 21 and pages 269-273 and 282-283 from Chapter 22.
3. Ozan O. Varol, “Stealth Authoritarianism,” Iowa Law Review 100, no. 4 (May 2015): 1673-1742
4. Ginsburg, T. and Huq, A.Z., 2018. How to Save a Constitutional Democracy. University of Chicago Press. Chapters 5.
5. Ibid.