Packing, Cracking, and Power (Part 3)
A 7-Part Series on The Tactics of Gerrymandering
In Part 2, we took a trip through our history to understand how gerrymandering is a persistent and evolving threat. In Part 3, we must turn our attention to the very foundation of our Republic: the Constitution.
The Elections Clause
Article I, Section 4, also known as the Elections Clause, is a critical provision. It states that the legislatures of each state have the primary authority to determine the "Times, Places, and Manner of holding Elections for Senators and Representatives." This gives states considerable power over the mechanics of federal elections, including how they draw congressional district lines.
However, this clause also contains a vital federal override. It explicitly states that "the Congress may at any time by Law make or alter such Regulations." The Supreme Court has interpreted this to mean that Congress has a "paramount" power to set uniform rules for federal elections. This constitutional provision provides a clear path for Congress to pass laws about redistricting, which could include outlawing certain types of gerrymandering. It is an important tool to protect the integrity of our democracy.
The Equal Protection Clause
The Equal Protection Clause is a cornerstone of our Constitution's guarantee of fairness. It declares that no state can "deny to any person within its jurisdiction the equal protection of the laws." This clause has been a primary constitutional foundation for challenging discriminatory electoral practices. It has been central to the courts' review of redistricting, especially in upholding the "one person, one vote" principle and forbidding racial discrimination in how maps are drawn. This is a vital tool for maintaining the integrity of our democracy.
While our Constitution requires that congressional districts be redrawn every ten years based on the U.S. Census to ensure they have roughly equal populations, it is "silent" when it comes to explicitly forbidding partisan gerrymandering. This constitutional silence has been a key factor in the Supreme Court's changing and ultimately limited approach to this issue. However, it is vital to understand that federal law, specifically the Voting Rights Act, and judicial interpretation of the Fourteenth Amendment do explicitly prohibit racial gerrymandering. This distinction is crucial, as it provides a clearer path for legal challenges when race is a factor in map drawing.
Let us now grasp a critical point about our Constitution and the power dynamics at play. Article I, Section 4 - the Elections Clause - explicitly gives our Congress the authority to "make or alter" state regulations concerning federal elections, and this absolutely includes the drawing of district lines. This is a profound power, designed to ensure fairness across the nation.
However, the Supreme Court, most notably in the Rucho v. Common Cause decision, has chosen to step back. They have declared that federal courts will not rule on partisan gerrymandering claims. In essence, they have pushed this vital matter squarely onto the legislative branch - onto Congress itself. Even Chief Justice Roberts acknowledged that excessive partisan gerrymandering "reasonably seem[s] unjust," but he pointed back to the Constitution, stating that "the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause."
This creates a truly precarious situation for our democracy. Here we have a practice, widely understood to be "undemocratic," acknowledged as such even by our highest court, yet that very court says it's not their place to fix it. Instead, the burden of reform falls upon a Congress that is, regrettably, consumed by "maximum warfare" partisanship. This judicial retreat, while perhaps intended to avoid political entanglements, has, I fear, inadvertently made the problem of partisan gerrymandering even worse by removing a crucial federal check. It places the responsibility for fair representation on a body that, due to its own partisan incentives, often benefits from perpetuating the problem. This is a profound systemic challenge that makes it extraordinarily difficult to achieve true reform through traditional federal channels. The integrity of your vote, and thus our Republic, demands your attention to this alarming reality.
The Voting Rights Act of 1965
The Voting Rights Act (VRA) stands as a landmark civil rights law that is a crucial tool in our fight for a fair democracy. This act explicitly prohibits drawing district lines that "deny or abridge the right of any citizen...to vote on account of race or color" or that deny minority voters an equal chance to participate in the political process. The VRA often requires the creation of "majority-minority" districts to prevent the dilution of minority voting strength. This law remains a critical federal tool against racially discriminatory redistricting, even though its future enforcement has been called into question by recent signals from the Supreme Court. We must remain vigilant in protecting this vital law to ensure that all citizens have an equal voice in our political process.
Our federal courts continue to police racial gerrymandering under the 14th Amendment and the Voting Rights Act, which is a positive development. However, the Rucho decision, by essentially giving the green light to partisan gerrymandering in federal courts, creates a significant loophole. Because there is often a correlation between party preference and race, Rucho opens the door for states controlled by one party to defend racially discriminatory maps by claiming they were discriminating against Democrats rather than against Black, Latino, or Asian voters.
This means that racial gerrymandering could be shielded under the guise of partisan intent, making it far more difficult to challenge discrimination. This is a subtle but profound shift in legal strategy that could undermine decades of progress in protecting minority voting rights. It forces those who challenge these maps to prove a difficult claim: that racial intent existed separately from partisan intent. This could potentially allow discriminatory maps to stand, threatening the very integrity of our democracy.
