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The Supreme Court, gerrymandering, and the Republican turn against democracy

A bigger threat to American democracy than Donald Trump.

Supreme Court Chief Justice John Roberts.
Supreme Court Chief Justice John Roberts.
Getty Images

The Supreme Court’s Thursday morning ruling in Rucho v. Common Cause amounts to a blank check for partisan gerrymandering. Chief Justice John Roberts’s opinion holds that federal courts should not have the power to declare particular maps unconstitutional, as doing so would be “unprecedented expansion of judicial power ... into one of the most intensely partisan aspects of American political life.”

What this means, in practice, is that local authorities get to decide on the shape of House and state legislative districts. Parties that control statehouses will be freer to not only cement their own hold on power but ensure that their party sends more representatives to Washington as well.

While Republicans and Democrats both gerrymander, there is no doubt that Republicans do it more and more shamelessly. North Carolina Rep. David Lewis, who helped draw one of the maps at issue in Rucho, was admirably honest about his motives in a 2016 statehouse speech.

“I think electing Republicans is better than electing Democrats,” he explained. “So I drew this map in a way to help foster what I think is better for the country.”

This principle — that Republicans believe their rule is better and are willing to do whatever it takes to ensure they take and hold power — does not merely lead to gerrymandering. It has produced a whole host of undemocratic actions, at both state and federal levels, that amount to a systematic threat to American democracy. Indeed, some of the best scholarship we have on American democracy suggests that this is even more alarming than it sounds; that it fits historical patterns of democratic backsliding both in the United States and abroad.

In her dissent to Roberts’s ruling, Justice Elena Kagan wrote that “gerrymanders like the ones here may irreparably damage our system of government.” I’d take it a step further.

The Court’s ruling in Rucho reveals that there’s a threat to American democracy more subtle and yet greater than the Trump presidency: the Republican Party’s drift toward being institutionally hostile to democracy.

The Court’s ruling permits a systematic attack on democracy

Partisan gerrymandering is, on its face, an obviously anti-democratic practice. State legislators pack large numbers of voters from the opposing party into a handful of legislative districts, thus ensuring their voters dominate the bulk of districts and hand them a majority. It gives their supporters’ votes more weight, a direct violation of the core democratic principles relating to equal citizenship and representation.

Historically, both parties have engaged in partisan gerrymandering: Rucho itself concerned both the Republican map in North Carolina and a Democratic map in Maryland. But the GOP has embraced the fashion in a far more systematic and troubling fashion.

In 2010, Republican strategist Karl Rove wrote an op-ed in the Wall Street Journal advocating a significant Republican push to gerrymander legislative districts after that year’s midterm elections. Rove’s idea manifested as Project REDMAP, a dark-money campaign to support Republican candidates for state legislature and then help them redraw House districts after the 2010 census.

We first saw the results of this process in 2012, when Republicans held the House despite more Americans voting for Democratic House candidates than Republican ones. The consequences persist, making it significantly harder for Democrats to win office in places around the country.

In the 2018 election, Republicans won about 50 percent of the US House vote in North Carolina. That translated into 70 percent of House seats due to heavily gerrymandered districts. Wisconsin Democrats won every statewide election in 2018 but did not win majorities in either chamber of the state legislature. Once again, gerrymanders are to blame.

The Rucho ruling allows Republicans to continue this campaign and even escalate it, as they don’t have to worry about outrageous maps getting rolled back by federal courts. “John Roberts ... gave the Republicans a green light to gerrymander to their hearts content,” UC Irvine election law expert Rick Hasen writes at Slate.

The national Republican campaign to cement their control over state legislatures and congressional delegations is not only harder to fight back but could very well get worse.

The Republican drift against democracy — and the Court’s role in it

But gerrymandering is just one piece of a much broader GOP offensive to rig the system in their favor. This isn’t some kind of master plan to destroy democracy so much as a series of discrete tactics, each a power grab in its own right, that add up to imperil American democracy itself.

Voter ID laws pushed in Republican states have created not-insignificant barriers to voting for many black and Hispanic voters. Republican state governments have conducted voter purges that disproportionately clear minority voters from the rolls. After two elections where Republicans lost control of the governorship, North Carolina in 2016 and Wisconsin in 2018, the state legislatures stripped power from new Democratic governors before they could take office. Florida’s Republican-controlled legislature just defanged a ballot initiative passed in 2018 that would allow ex-felons to vote, literally denying the franchise to a heavily black (and thus heavily Democratic) constituency.

While these examples come from the state level, as that’s where electoral law is primarily set in the US system, they’ve been either directly supported by the national party or tacitly approved.

Meanwhile, the federal GOP has engaged in its own forms of anti-democratic politics, the most infamous example being Senate Majority Leader Mitch McConnell’s blockade of Merrick Garland’s Supreme Court nomination. Republicans in Congress have refused to consider statehood proposals for DC and Puerto Rico, essentially denying Senate and House representation for millions of US citizens. The party depends on undemocratic institutions like the Electoral College and the Senate — ones that give disproportionate weight to voters in Republican-dominated states — to maintain power, and thus needs to prevent reforms that would move the country towards a truer form of one person, one vote.

The GOP dominance of the Supreme Court has played an important role in this overall democracy-threatening drift. Under Chief Justice Roberts, the Court has struck down Voting Rights Act provisions that attempted to curtail gerrymanders along racial lines in the Shelby County case and removed restrictions on dark-money contributions in the infamous Citizens United ruling. Under Roberts, the Court is systematically removing judicial constraints on the nationwide GOP’s corrosions of democratic institutions.

“All of this talk about Roberts being the swing vote, or worried about appearances of being political: not on the issues he cares about the most, which are politics, race and power,” Hasen writes. “See Shelby County, Citizens United, and now ... Rucho.”

Attendees hold signs and cheer during a rally calling for an end to corporate money in politics and to mark the fifth anniversary of the Supreme Court’s Citizens United decision, January 21, 2015.
Attendees hold signs and cheer during a rally calling for an end to corporate money in politics and to mark the fifth anniversary of the Supreme Court’s Citizens United decision, January 21, 2015.
Drew Angerer/Getty Images

This GOP turn didn’t arise because the party is ideologically opposed to democracy in the way that, say, fascists and Islamists are. It’s that they care more about power than they do about basic democratic principles and are willing to run roughshod over the latter if it helps them win the former. This Republican attitude is more democracy-indifferent than anti-democratic, reflecting a party so caught up in partisan combat that it can’t recognize the authoritarian road it’s traveling down.

This is part and parcel of extreme political polarization. In their book How Democracies Die, Harvard’s Daniel Ziblatt and Steven Levitsky argue that extreme polarization produces a sense among elected officials that the other party is a fundamental threat to the country’s survival, and that the consequences of allowing them to wield power will be catastrophic. This allows the party leaders to justify taking steps to undermine democracy in the name of saving the nation, which, they argue, is what the current Republican Party is doing through legislatures and the courts. Indeed, that’s essentially what Lewis, the North Carolina state representative, openly admitted.

This is much more fundamentally threatening to American democracy than the Trump presidency. Trump could do serious damage to the system, maybe even induce a constitutional crisis, but he is, on his own, neither competent enough nor institutionally powerful enough to outright destroy American democracy.

But the Republican Party’s democracy-indifferent attitude preceded the Trump presidency, and will likely survive beyond it. With Trump in power, the backing of a partisan court majority, and an electoral system that intrinsically advantages the GOP, it’s possible to imagine the party subtly rewriting the rules over time to make American democracy less and less competitive. This may even seem like a natural response, in the Republican mind, to the rise of a younger, more diverse, more progressive electorate.

A kind of quietly undemocratic America is not all that hard to imagine. In Paths Out of Dixie, Michigan political scientist Robert Mickey argues that a large swath of the United States — the entire South — was an authoritarian nation within a national democracy from the end of Reconstruction right up until the 1970s.

Jim Crow wasn’t just racially discriminatory; it was anti-democratic, rigging the system so racist whites couldn’t lose their grip on power. The transition to Southern democracy, Mickey argues, wasn’t easy and it wasn’t clean; the attitudes underpinning Southern authoritarianism have not gone away.

America is not yet on the brink. Democrats hold the House and have a decent shot at both the White House and the Senate in 2020. This is not an authoritarian system or anything close to it — yet.

But the long-term threat of democratic backsliding, of a major party undermining the small-d democratic system from within over the course of time, is very real. And it explains why so many knowledgeable people are so worried about the Court’s ruling in Rucho.

“The Court’s gerrymandering decision seems to lock-in an essentially non-democratic feature of American politics. Elected representatives can rig the system to remain in power indefinitely and this cannot be challenged,” writes Harvard political scientist Ryan Enos. “Combine this with the other increasingly consequential non-democratic features of the American system ... and the longterm stability of the system seems worryingly compromised.”