James W. Pfister
Years ago, in 1962, in Baker v. Carr, the Supreme Court agreed to hear cases where legislative districts were unequal in population, called “malapportionment.” Before that case, the issue was seen as a nonjusticiable political question, with no judicial remedy. Baker v. Carr held that there were judicial standards to hear malapportionment cases. Subsequent cases eliminated malapportionment by requiring that there be equal number of persons in legislative districts.
Today, we have, through partisan gerrymandering, what I would call “maldistribution of people” in legislative districts, where through “packing” of people of one party into a district or “cracking” into the political preferences of people to create large minorities of people of one party in a district, people are not represented fairly as they should be. This leads to political extremes and polarization. We do not have the stability of politics of the center, where most people are, and, therefore, it is hard to reach political compromise to act.
This leads to political dysfunction at a time when the United States is challenged by wars in Ukraine and Israel and challenges in Asia, especially the rise of China and the issue of Taiwan. The nuclear challenge of China, Russia and, eventually, Iran will balance American power. We need an effective government now. Former Secretary of Defense Robert M. Gates sounds this warning in “The Dysfunctional Superpower: Can a Divided America Deter China and Russia?” in Foreign Affairs, Sept. 29, 2023. Problems of immigration, the climate, energy and urban crime also challenge us. The recent ouster of the moderate Speaker Kevin McCarthy illustrates this dysfunction.
Gerrymandering allows the majority party of a state to lessen competition in the single-member districts that elect members of the House of Representatives and both houses of state legislatures. For example, regarding Speaker McCarthy, the “eight GOP members who voted to reject him represent districts that are safely Republican, with little to fear in general-election contests against Democrats.” (Kevin Sullivan and Clara Ence Morse, “Illinois Democrats draw new maps. The changes pushed the GOP to the right.” Imperfect Union, Oct. 7, 2023). Those politicians running in safe, single-member districts worry more about the primary than about the general election; they become responsive to the extremes in their parties in the primaries. The result is the “hollowing out of the moderate political center and driving both parties further toward the ideological fringes.” (Ibid.). Without the political center, which represents the bulk of the people, compromise is difficult. Dysfunction results. It is not representative.
The question is whether Congress, state legislatures or courts could intervene to assure that electoral districts are fair and reasonable. One is reminded of the problem of malapportionment. The House of Representatives and the state legislatures would not change it because they benefited from the system as it was. The Supreme Court saw it as a nonjusticiable political question for years, not a legal issue. One of the most important cases of the 20th century was Baker v. Carr, 1962, which, in an opinion by Justice William J. Brennan Jr., with courage addressed the problem, since no other institution would do it. The court found legal standards to allow federal courts to decide malapportionment cases.
The issue of partisan gerrymandering was raised in Rucho v. Common Cause, 2019. Chief Justice John Roberts wrote the majority opinion of this 5-4 decision. He essentially deferred to the political process, saying this was not a legal question, but a political one. Justice Elena Kagan wrote a strong dissent, in which she believed the federal courts should play a greater role. Both opinions cited the classical case of Marbury v. Madison (1803): “It is emphatically the province and duty of the judicial department to say what the law is.” Roberts wrote: “In this rare circumstance, that means our duty is to say ‘this is not law’.” (Majority opinion). Kagan wrote regarding the Marbury quote: “When faced with such constitutional wrongs, courts must intervene … Part of the Court’s role … is to defend (government’s) foundations. None is more important that free and fair elections.” (Kagan dissent).
Next time, I’ll present the logic of the majority and dissenting opinions in Rucho and discuss implications for the future.
James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at [email protected].
