Why Supreme Court Inaction on Gerrymandering Threatens Democracy | Opinion

Ours is a representative democracy. The people pass federal laws through their representatives. But what happens when those representatives loosen their connection to the people so much that they cease to be representative?

Consider what's happening with gerrymandering across the country. It's been around since 1812, when Massachusetts Gov. Elbridge Gerry drew a Boston district resembling a slithering salamander to benefit his party. But like many vices, this one can merely diminish us, or in sufficient excess it can destroy us.

Here's how it works. Let's say you have a large block of pro-life voters smack in the middle of your state. To empower them, ask the state legislature to draw lines to divide them into two districts where they make up let's say 50 percent of the voters in both districts. They could easily elect two pro-life legislators to Congress. But let's say you want to diminish their influence. Then you pack them into a single district with 90 percent pro-life voters and leave the rest of them a tiny minority in another district. Two pro-life districts become one, and the voting power of pro-life voters just got cut in half.

It works the same way with Republicans and Democrats. Just crowd the group you want into as many or as few districts as you want by drawing congressional district lines in whatever slinky way is needed to favor some and disfavor others.

Today, Congress is paralyzed by a swarm of slithering salamanders masquerading as congressional districts. Both parties have contributed to the problem, but there is little doubt about the result: a radical decline in competitive races. More safe seats. And more safe seats that mean less compromise in Congress. When you can't lose, you play the game any way you want. And when you have a Congress dominated by those who can't lose, Congress is the last place to look for reform.

Yet, except for race discrimination and raw voter numbers, Congress is where the Supreme Court dumped this issue in its 2019, 5-4 ruling in Rucho v. Common Cause. Now Court foot dragging is getting worse. Last week a lower court ordered South Carolina district lines ruled racially unconstitutional to be used at the polls because an appeal is languishing in front of the Supreme Court.

First, the Supreme Court should rule on the South Carolina lines before it's too late. But when it does, it should revise its 2019 ruling before it ruins us.

The original ruling rests on pure semantics. The Rucho Court recognized the venerable principle of one person, one vote, but it held that this analysis was confined to "people," not "political parties," saying that any imbalance based upon party strength was a "political question" ultimately committed to Congress to deal with.

But aren't political parties made up of people? If the intent of district-line drawers is to diminish the power of a class of voters what is the difference to democracy if the people diminished might be called "Republicans," "pro-life voters," "farmers," or "roller skating Rastafarians?" When the plan is to silence voices; when the effect is to leave a Congress of dysfunctional diehards, isn't the constitution offended? After all, Article I, Section 2 of the Constitution mandates that "the People" will elect their representatives—not just some of the people—and the 14th Amendment guarantees all Americans the equal protection of the laws—including voting laws.

The Constitution doesn't give the Supreme Court the power to duck the issue merely because it's difficult. Article III, Section 2 grants judicial power "to all Cases...arising under the Constitution." Gerrymandering is a difficult question. But an earlier plurality of the Court already proposed a workable standard when it suggested the Court could strike down gerrymandering if it finds, "intentional discrimination against an identifiable political group and an actual discriminatory effect on that group."

It should readopt that standard now. Under it, gerrymandering might continue, but the intentional destruction of our democracy might at least be hindered. The Supreme Court should never have dodged such a supremely important issue, and the South Carolina case gives it a chance to fix its mistake. Yes, the case is about race, not political parties, but nothing stops the Court from restating all the gerrymandering ground rules in its decision.

Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.

The views expressed in this article are the writer's own.