Blog 108 – From Gerrymandering to Co-mandering
The Fatal Flaws of Court Remedies
Since this was written, decisions in North Carolina, Wisconsin, Ohio, and Maryland have ruled on the constitutionality of redistricting maps, with arguments ranging from the First to the Fourteenth Amendment. The most general rule emerging seems to be that used in Ohio: In the Ohio case, the judges used three criteria: whether its drafters intended to hobble their opponents, whether they succeeded, and whether there was any other justification for the maps being drawn as they were. In Ohio, they concluded that the maps failed all three tests. “Opponents,” for that purpose, were considered the disadvantaged political party.
Nothing was said of the consequence if the map failed only one criteria. Nor was any attention paid to what would be other justifications that would support the map as drawn, despite its constitutional problems.
Following these general rules, the courts have required the party drawing the challenged unconstitutional map– typically a state legislature– to prepare and submit to the court a map that would meet the constitutional standards, avoiding embedding partisan advantage to one or the other of the major political parties. Where the responsible party, presumably the state legislature, was unable to agree on such a map, courts have required it to set up a commission to establish appropriate boundaries, and in at least one, [i] the court has itself set up a commission to do the map-drawing. In Ohio, voters adopted a ballot initiative that required a new plan to pass both its House and its Senate by a 50% majority. If they fail to agree on a constitutional map, a Commission, made up of the governor, two other state officials, and two Democratic and two Republican lawmakers, draws the maps.[ii]
This court-dominated resolution of the issue of gerrymandering has two fatal flaws, and presents a major missed opportunity.
The first flaw, the political party partisanship obsession, is that it assume the only defect of gerrymandering district lines is that it creates a partisan advantage for one of two existing political parties over the other, partisanship thus being defined as the interests of the Democratic or the Republican Party. Bipartisanship is not political neutrality; it legitimates the two dominant political parties.
The only exception is the treatment of race. If a plan favors blacks over whites, that is also not allowed, usually with particular reference to the Voting Rights Act or the Thirteenth Amendment. But that it unfairly benefits one class or another, one religion over another, one historical claim over another, one environmental advantage to one group over another, finds no place in the subdiscussion.
The second flaw, the limited remedial powers of courts where unconstitutionality is found, is that it only applies to the defendants in the particular lawsuit, those who are directly subject to court order. That will often by the very legislature that adopted the gerrymandered map. Those defendants are not likely to be broadly concerned with how the legal flaws found in the gerrymandered map is achieved. And the courts, even if they wished, will have no authority to order, for instance, a City Planning Commission, to prepare alternate maps, nor to hold public hearings on such alternatives. Nor is it clear that a court would have the necessary power to order the legislature to pass any legislation it might find desirable to mold the way the legislation it might find desirable to implement the court’s decisions. Calling the issues “political” rather than legal is a why of a court recognizing its limitations.
Passing the buck to “commissions,” presumably neutral, but actually more appropriately bi- partisan, retains the political party obsession, and lets representatives of the Democratic and Republican Parties make decisions that ought to be fully part of an open democratic process. Even in dealing with partisanship, that concept is narrowly limited. Typically, as in the Ohio initiative, the commission is to be composed of the governor, two other state officials and two Democratic and two Republican lawmakers, surely a very constrained definition of what “neutral” means in a vibrant democracy,[iii] and possibly an inappropriate delegation of powers.
The missed opportunity is that discussed in the text referenced in the note at the end of this blog, in which it is suggested that a new redistricting plan could use the tools of redistricting to positive ends, seeing it as part of a public planning process pursuing social ends with democratic means, relying both on expert advice and on open public participation in the actual drawing of preferred redistricted lines.
It might further be noted, perhaps with a bit of tongue in cheek, that the reliance on the participation of “The” Republican Party and “The” Democratic Party, in some of the legal formulations of remedies in play today, is very questionable. Whether either party is a coherent unitary ideological entity speaking even for all its own members, at the time this is written, May of 2019, is dubious. Nor is the exclusion of other parties logically defensible. That is further reason to question the appropriateness of spelling out the individual private political entities entitled to be involved in any decisions making as to the acceptability of particular maps
[i] Paul V. Niemeyer of the 4th Circuit, Chief District Judge James K. Bredar and U.S. District Judge George L. Russell III.
[ii] For other instances of voters attacking gerrymandering, but still adopting remedies suffering from both these flaws, see https://www.washingtonpost.com/national/voters-are-stripping-partisan-redistricting-power-from-politicians-in-anti-gerrymandering-efforts/2018/11/07/2a239a5e-e1d9-11e8-b759-3d88a5ce9e19_story.html?utm_term=.d56d008d6b25.
[iii] In California’s well-regarded Voters First Act, Proposition 11, the membership of the Commission is required to be made up of 14 members: five Democrats, five Republicans, and four from neither major party. It would be important to review exactly who the parties are that are the defendants and directly subject to the judgement s of the court in the recent, cases, who are obligated by court action to take action to execute the courts’ judgements.
The text above is a preliminary version of a much larger contribution fora forthcoming in a new volume, Site Matters, Design Concepts, Histories, and Strategies 2nd Edition (Routledge), edited by Andrea Kahn and Carol Burns., edited by Andrea Kahn and Carol Burns. The significant substantive contribution of the editors to the text is gratefully acknowledged. All errors and the conclusions remain the full responsibility of the author.