End Gerrymandering Through Congress, Not the Court
June 26, 2019
Congress has the power to end partisan gerrymandering and formulate better solutions.
The Supreme Court will rule tomorrow on two egregiously gerrymandered Congressional districts – one Democratic and the other Republican, from Maryland and North Carolina. Gerrymandering distorts democracy and it’s easy to hate. But the ubiquitous calls from editorial boards, citizens, and scholars for the Supreme Court justices to simply “fix” the issue are misplaced. Congress – not the Court – is the proper venue for this debate. Congress has the power to end partisan gerrymandering of Congressional districts and formulate better solutions. Congress has used that power successfully in the past. This history has been forgotten to our peril.
The Constitution gives Congress ultimate power over the “Times, Places, and Manner” of the elections of its members. The founders debated this power at length and granted it deliberately. Madison argued that it was needed to produce “uniformity” of elections between states, and to rein in abuses by state legislatures, since it was “impossible to foresee all the abuses that might be made of the discretionary power.” The gerrymandering we see today is exactly such an abuse.
Congress used this power for about 70 years, from 1842 to 1929 – to require equipopulous, single-member districts, and ensure that they were contiguous and compact. But, almost by accident, Congress got out of the districting game in 1929, and the Court stepped into the void in 1962 with a series of cases known as the “Reapportionment Revolution.” The revolution culminated with the “one person, one vote” standard that quickly put an end to districts with unequal numbers of voters per representative. Just as important, the rulings redefined the line between legislative and judicial authority.
In retirement, Chief Justice Earl Warren called the first case in that series, Baker v. Carr, the most consequential of his tenure. It has turned out to be a mixed blessing. The Court ruled that an issue is “justiciable,” that it comes within the purview of the courts, if it admits a clear and manageable standard. The problem is that after entering the districting realm, the Court failed to find many “manageable standards” beyond “one person, one vote.” Still, by assuming authority, it had crowded out Congress. A few years after Baker, in 1967, Emanuel Celler, the Brooklyn congressman who introduced the 1965 Voting Rights Act in the House, again pushed for legislative reform of Congressional districts, reviving the requirements as they stood in 1929. The bill passed both houses of Congress – nearly succeeding – but failed in conference, due mainly to technical concerns about its timing (long after the last Census) and because of the interplay with this newly-active Court. Since then, Congress has shied away from its districting power and the Court has struggled to provide any relief from egregious maps, like those in North Carolina and Maryland.
So what is the solution? Congress has the constitutional power to curtail states’ abuses of districting authority, and a history of using that power. For its part, the Court has failed for half a century to reach beyond equipopulation in its enforcement of fair districts. Though it has recognized the harm of partisan gerrymanders for over three decades, it has not provided relief from it. In short: it’s true that Congress can be intransigent and unresponsive, but that must be weighed against the proven intransigence – and indeed the constitutional limitations – of the Court. What is needed is for each branch to play its own role. The Court’s successes in other districting concerns – curbing racial gerrymanders, for instance – relied on legislative action. In fact, they depended on Emanuel Celler’s other big bill: the 1965 Voting Rights Act. It was the joint efforts of Congress and the Court that allowed progress.
There are promising moves in the current session of Congress: the first bill introduced in the House, by John Sarbanes, would do away with gerrymandering by requiring that US Congressional districts be formed by independent commissions instead of partisan actors and cronies. After a party-line vote in the House, the bill is languishing in the Senate. Welcome reform is underway at the state level, but this does not preclude a national solution. Sarbanes’s bill is just one such possibility.
The districting process elevates communities through maps; it is an expression of democratic values. There are genuine debates about what districts should look like: how communities should be defined, how to balance minority rights against geography, and so forth. But gerrymandering as we now have it can bear no candid defense. Congress can and should act, but without pressure it won’t. If Americans want fair districting, they must demand it – not of their justices, but of their representatives.