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What Should Dems Do About Gerrymandering?


I have a piece at Vox wrapping up the latest Supreme Court term. It was a tentative term without a lot of blockbuster cases, but with plenty of signals that we’re completely screwed.

One question that arises from the latest atrocious Roberts Court decision on voting rights is how Democrats should respond to the green light the Supreme Court just have to any level of partisan gerrymandering:

Another last-day ruling by the Court was less ambiguous. In Rucho v. Common Cause, the Court ruled that even the most egregious partisan gerrymandering was a “political question” beyond the reach of the federal courts. In this case, the Court’s signal was clear: No matter how much partisan gerrymanders disenfranchise voters, the Court will not interfere.

While the Court’s position is clear, however, how states will respond is not. As Eric Levitz of New York magazine points out, large blue states will have to decide whether to engage in nonpartisan districting as a model or whether they will try to engage in the most aggressive pro-Democratic gerrymanders computer technology makes possible. One perverse upshot of Rucho is that the more unfair a state’s elections, the more representation they receive at the national level, making an eventual race to the bottom likely.

The end result will ultimately make democracy worse while being a net plus for Republicans. Which is also a fair summary of the impact of the Roberts Court — an impact that is only likely to deepen in the coming years.

My own position is that the least bad solution is for states like New York and California to gerrymander their House districts as aggressively as Wisconsin and North Carolina do theirs. But that’s unlikely to happen, and that’s understandable — I can understand why “making elections less fair at the state level is the only way to ensure fairer representation at the national level” is an argument that’s intuitively difficult for people who actually support fair elections to accept even if it’s right. But the result of this is that Republican overrepresentation in both federal and state legislatures is only going to keep getting worse.

Of course, this is a crucial reason why Rucho is such a disgrace. The decision is wrong most obviously because the Supreme Court should enforce the 1st and 14th Amendments and the idea that one party entrenching itself as the permanent rulers of a state even if they cannot command majority support is consistent with either merits only the Charles Black response. But in addition, a perverse situation where states are penalized for having elections that are too fair is exactly the kind of procedural collective action problem that judicial review should address. But since the basic ethos of the Roberts Court is to take Footnote Four of Carolene Products and do the precise opposite we are where we are. As Zach Beauchamp observes, the strong anti-democratic stance of the Republican Party as a whole creates a powerful mutual-reinforcement loop. And John Roberts is the poster child for the Party of Calhoun’s contempt for basic democratic values.

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