Gerrymandering and State Power

06-29-2019

Chief Justice Roberts wrote the Majority Opinion for the Supreme Court last week in Rucho v. Common Cause. Roberts’ opinion refused to invalidate highly partisan gerrymandering actions by a number of states.  The Court acknowledged the gerrymandering in North Carolina (favoring Republicans) and Maryland (favoring Democrats) was, in the Court’s  own words, “highly partisan.” The Court called both gerrymanders “blatant examples of partisanship driving districting decisions.” What is more, the Court admitted that such extreme partisan gerrymandering was harmful to democracy and could lead to “unjust” results that are “incompatible with democratic principles.” And nowhere does the Court say that such gerrymandering is Constitutional. What it says is that there is no adequate standard for the judiciary to invalidate the act of an elected legislature regarding a decision that is fully within the power of the legislature. 

Highly partisan gerrymandering is an affront to the basic principles of American self-government. When elected officials draw districts designed intentionally to keep the majority power in power, that undercuts the very idea that a republican citizenship can exert a check on the power of their representatives. And while Chief Justice Roberts’ opinion specifically affirmed that it is still unconstitutional to engage in gerrymandering on racial grounds, the fact is that it is quite easy to hide racial motives behind claims of mere partisanship. Gerrymandering is an existential issue for American democracy. 

It is important, therefore, to recognize that there is still a path forward to address the evil of highly partisan gerrymandering. As Benjamin Battles argues, both the majority and dissenting opinions have now concluded that “any remedy for the harms caused by partisan gerrymandering must now come from either Congress or the states.” Since Congress is unlikely to act, that means that any progress on the question of extremely partisan gerrymandering must come from the states. Battles writes:

Which brings us to the states. Unquestionably, the actions of the state defendants in Rucho and Lamone, and in other recent gerrymandering cases around the country, raise legitimate questions about the ability of state officials to police themselves when it comes to districting. But state officials, no less than federal judges, are obligated to uphold the Constitution. And there is cause for hope, or at least for renewed determination. The states offer a diversity of potential approaches, and political power is diffused at the state level among a variety of actors—including individual voters—who can exert pressure on the redistricting process. And critically, with the federal courts now unavailable, there is no better option for gerrymandering reform. Several features of state action are noteworthy.

Battles points to a number of ways that the states can respond to the challenge of highly partisan gerrymandering. Some states have argued that gerrymandering must be subject to judicial standards of fairness. And half of the states have enacted statutory or constitutional provisions to reduce or eliminate highly partisan gerrymandering. And even if the Federal Courts are now precluded from invalidating highly partisan gerrymandering, state courts can still intervene based on state law and state constitutions. 

Battles’ argument that the states possess “a diversity of potential approaches” to take up the fight against highly partisan gerrymander, and his claim that “political power is diffused at the state level among a variety of actors,” recalls Hannah Arendt’s argument about the fundamental importance of the diffusion of power in the United States Constitution. The best way to prevent government from attaining totalitarian or tyrannical power is, as Arendt argues, to multiply the sources of political power. Arendt credits the United States Constitution because it created not only the division of powers on the federal level, but also the constitutional federalism of the early Republic. By empowering states, counties, towns, and villages, the United States Constitution ensured that nearly every citizen would have both opportunity and reason to act in public and to engage in politics. 

Arendt believes that the Constitution, is what’s at the center of the American experience of freedom. She even goes so far as to suggest that it forms what she called “a new system of power,” a whole new idea of power. We think of power as something bad that needs to be eliminated. We say: “Power corrupts, and absolute power corrupts absolutely.” There is a truth in that cliché. But Arendt also thought of power as something good. Power is what people do when they act together for a common end or civic purpose. She understood that while power may corrupt, governance depends on power. 

The American founders appreciated this understanding of power as a democatic good; the Americans used their new experience of freedom following their Revolution to create lots of new centers of power. Constitutions in all thirteen states were institutions of power; town councils and town governments were institutions of power; the legislatures in counties and states were institutions of power; governors were institutions of power; the three branches of the federal government were institutions of power; even the many civic and political associations Americans formed were institutions of power. Her point is that local power centers sprung up all over America and the American Constitution gave these multiple power sources a formal institutional home. 
 
The institutionalization of multiple sources of power in America was, for Arendt, deeply important to the American experience of freedom. This is because, as she writes, “Power, contrary to what we are inclined to think, cannot be checked, at least reliably, by laws.” That is one of the most important insights Arendt offers us, and it’s one that we simply don’t understand today. We think that laws and the Constitution can check power, but it doesn’t work that way. If people in a democracy really want to do something, in the end they will just do it. 

Arendt quoted Alexis de Tocqueville who famously wrote:  “The American Revolution broke out, and the doctrine of the sovereignty of the people came out of the townships and took possession of the state.” Her point is that it was this American experience of self-government in the townships, on the Arabella, on the ships—this feeling of the right to make our own government—that created a unique idea of American power, one which not only could protect freedom but also makes freedom what it is: self-government. And so she concludes:
 

The great and, in the long run, perhaps the greatest American innovation in politics as such was the consistent abolition of sovereignty within the body politics of the republic, the insight that in the realm of human affairs sovereignty and tyranny are the same.

 
What made America unique for her was that there was no one sovereign, there was no one place where sovereignty was held. There were many power sources. The focus wasn’t even the people or the nation because there were many peoples and many nations, and each one could have power. 

Arendt’s reflections on the American experience of power as diffused amongst multiple sources reminds us that as devastating as highly partisan gerrymandering may be, we still have the resources in our constitutional structure to combat it. Through the states, as Battles argues, there are resources to take on gerrymandering. What is needed is simply the will to do so.