Reviews | Why Gerrymandering has to land in state courts

The process so far across the country shows why a cure is so needed. Politicians in North Carolina, Wisconsin, Utah, and many other states are offering cards that will skew the results in favor of the current party in charge. Already, some observers have noted this gerrymandering in itself will probably allow Republicans to take control of the House of Representatives. Asymmetrical neighborhoods can minimize the power of minority groups. Gerrymandered cards can also literally allow a minority of voters to elect a majority of lawmakers. And they eliminate virtually all competitive districts between political parties.

Two years ago, the conservative majority of the United States Supreme Court rejected a constitutional challenge to the blatant partisan gerrymandering in the drawing of legislative maps by the Republicans of North Carolina and the Democrats of Maryland. Defying all logiche said federal courts cannot provide a legal rule when partisanship has infected the redistribution process too much. But the court then suggested that all was not lost, speculating that state law could provide a cure for the worst abuses.

Given the aggressive partisan behavior of state legislators, it may seem absurd to hope for a state-level solution. But in fact, state constitutions are a strong source of protection for voting rights, which means that state courts could have a crucial role to play.

Virtually all state constitutions have a clause granting citizens of the state the fundamental right to vote. (Only Arizona’s does not, but its courts have interpreted its state’s constitution as still essentially conferring the right to vote.) About half of state constitutions say elections should be “free,” ” free and equal ”or“ free and open. . “And some state constitutions, like that of Florida, even dictate rules that demand fairness in redistribution.

The process will have to start with legal action. Voting rights activists – including Democrats who typically fare worse in these gerrymandered cards – will have to sue the cards in state courts, citing protections enshrined in state constitutions. There is already a precedent for this tactic: both the North Carolina and Pennsylvania the supreme courts have relied on these clauses to invalidate openly partisan gerrymanders in the last round of redistribution, noting that when politicians choose their constituents instead of the other way around, elections are no longer “free”.

So far, while there have been a few challenges in state courts, Democrats and others are focusing on federal court litigation – including under the Voting Rights Act, especially since many of the new cards will downplay the power of racial minorities. Unfortunately, the Supreme Court decided more difficult for these claims to succeed, issuing restrictive rulings that allow partisan card designers to use sophisticated algorithms to achieve their partisan goals while ostensibly complying with rules that prohibit watering down the voting rights of minorities.

But, at least so far, the court has not tried to curb state courts by using their national constitutions. (There is an argument, known as “doctrine of the independent state legislatureThis suggests that under the US Constitution, state constitutions cannot constrain state legislatures when making electoral rules; but although some judges have accepted this concept, a majority of the Supreme Court has yet to endorse this radical idea in a single case.) So state courts offer the most solid avenue for challenging these cards. Voting rights advocates are missing a major source of protection if they fail to invoke these constitutional provisions of the state when challenging blatant partisan gerrymanders.

Republicans drew most criticism in this round, but they’re not the only bad actors in the game of gerrymandering: Democrats in Illinois drew up a congressional map that gerrymanders the state to eliminate two seats held by Republicans. The card prompted Rep. Adam Kinzinger, a moderate Republican and one of former President Donald Trump’s most vocal critics among the GOP, to announce that he would not stand for election, knowing he would be little. likely he will win a primary against his compatriot Republican. Darin LaHood, who was drawn to the same neighborhood. So Republicans could also use Illinois’ constitution to challenge an unfair map.

If litigants do not forcefully invoke state constitutions in their challenges, or if state courts follow the United States Supreme Court and also refuse to control partisan gerrymandering, then nothing will prevent the powerful from s’ anchor in power for at least the next ten years. Democracy itself – where the voters themselves determine the winners through a fair and equal process – is at stake.

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