SCOTUS Puts Another Nail In The Coffin Of American Democracy
As I worried when the Supreme Court gave the OK to Ohio’s voter purge, the Court has refused to hear the critical Gill v. Whitford case that involved extreme partisan gerrymandering. By doing so, the Court is again signaling that, for the time being, red states can go ahead and craft the most extreme gerrymanders as long as they can create the appearance that they are not racially motivated but targeted at Democrats in general.
The case involved a challenge to Wisconsin’s state assembly gerrymander which allowed the Republicans to win just over 60% of the seats while just winning 47% of the statewide vote in 2012. By 2016, the GOP managed to win 64 of the 99 Assembly seats, nearly a super majority, with just 53% of the vote. The plaintiffs brought this case in the hopes of capitalizing on an opening presented by Justice Kennedy in a case in 2004 where he indicated a standard for determining unconstitutional partisan gerrymandering could exist. Taking up that challenge, the plaintiffs showed that when an “efficiency gap”, that being the number of “wasted” votes, reaches 7%, the party in power is virtually guaranteed of staying there.
SCOTUS heard oral arguments in this case but today ruled that the plaintiffs did not have standing to challenge the entire statewide assembly map. In essence, the Court avoided ruling on the constitutionality of extreme partisan gerrymandering but instead punted, basing their decision on a technicality. A similar suit in Maryland suffered the same fate. That does not mean that the issue will die as there are other cases in the pipeline that challenge partisan gerrymandering that the Court will hear over the next couple of years, as Justice Kagan made clear in her concurrence. But the Court’s decision certainly created an obstacle for any statewide challenge to the gerrymandering process when it declared that standing could only be district-specific.
Of course, this decision means that large blocs of voters in Wisconsin and North Carolina, for instance, will once again be effectively disenfranchised again, as they have for virtually this entire decade, in the upcoming elections in 2018 and probably in the critical 2020 one as well that is so important under reapportionment. And that’s not counting others who will have to deal with purges of the electoral rolls, voter ID, and restricted voting access.
Because of the undemocratic nature of the Electoral College, in two of the last five presidential elections, the winner of the popular vote has not been seated in the Oval Office. By some estimates, just 40% of the population will control 70 seats, more than supermajority, in the US Senate by the year 2040. It is also estimated the Democrats could win close to 54% of the national vote this fall and still not end up with a majority in the House.
The structural problems with our democracy are already extreme and partisan gerrymandering exacerbates our electoral failings. As Justice Kagan notes, “At its most extreme, the practice [of partisan gerrymandering] amounts to ‘rigging elections'”. And when that happens, we cease to be a democracy any longer. That, however, may not concern the right-wing conservative hacks that currently dominate the Court thanks to Mitch McConnell.
