End Gerrymandering: Redistricting By The Courts

The Constitutional Amendment

A proposed amendment to the Constitution of the United States to end the practice of gerrymandering::

Legislative districts for the House of Representatives shall be established by the Supreme Court of the United States within the several states. The Court shall adjust the number and boundaries of districts promptly on the completion of each decennial census to allocate the lawful number of Representatives among the states.

The number of districts per legislative body within the several states or other territories of the United States shall be allocated by  law, while the composition of districts shall be determined by the highest civil court in each state or territory in a like manner as prescribed above for the Supreme Court of the United States. 

Within the lawful  boundaries of the several states and other territories of the United States, all districts for the House of Representative and other legislative bodies shall be compact, contiguous and equally populated, excluding all other criteria, except that boundaries for the House of Representatives shall not be traversed by local districts established for state and inferior legislatures without due cause.

The legislatures of the several states or other territories of the United States shall have the power to declare, by act or delegation, that any number of legislative seats within the boundaries of their jurisdictional divisions and sub-divisions shall be elected at large." 

History

“Gerrymandering” was invented most publicly in Boston, seat of Massachusetts government, in 1812, in the form of a law signed by its unfortunately named governor, Elbridge Gerry. It has been with us since in most places as a way for legislators to cling to power, reward their friends, isolate their foes and choose voters predisposed to choose them.

They do this by passing laws that shape their districts to their benefit. One of the districts formed by those sturdy Massachusetts legislators of yesteryear was thought to be shaped like a salamander, a small lizard like creature that shuns the daylight.

“Newspapers of the time glued “Gerry” and “mander” together to form the term of ridicule these blatant legislators and their generations of sly successors so justly deserve. But nothing has fazed them then or since and they brazenly continue perfecting this art of political self preservation to this day.

Despite many numerous attempts at piecemeal reform by citizens of states able to vote initiatives into law (California and Florida most recently), our elected representatives persistently gerrymander, even ignore their own laws, hoping that the inevitable lawsuits will not upset their plans overmuch. Since they thereby tend to foist their responsibility to behave honestly onto the courts anyhow (usually just in time to hamper effective remedies by next election time), justice is served both poetically and practically by having the courts in charge of redistricting from the beginning.

Consequences And Rationale

The proposed amendment would shift responsibility for setting districts for the U. S. House of Representatives from state legislatures all the way up the chain to the Supreme Court, by-passing the U. S. Congress and the President.  There is historical precedent for this that most people alive today have little reason to remember.

Once upon a time most of us were farmers.  Cities were relatively small and suburbs practically non-existent.  Then mechanization of farming made most small farms uneconomic and masses of farm laborers unnecessary, while the industrial revolution concentrated new jobs mostly in urban areas.  People moved to the jobs but political power didn't move with them.  Rural interests entrenched in state legislatures resisted drawing new legislative districts to reflect where the people now were living. 

Reformers lamented for years that trees increasingly had more political say than people,  finally turning to the courts for help. But the courts were uneasy about entering this "political thicket."  It wasn't until "Baker vs Carr," a Supreme Court decision reached in 1962-- after more than a little judicial drama (Chief Justice Earl Warren called it the most important decision of his tenure) --   that the doctrine of "one person, one vote" became the judge made law of the land.  The case originated in Tennessee, where a city dweller at the time had one tenth the franchise of a rural denizen.

Today legislative districts at all levels of government conform to a practical degree to that doctrine, but while vitally important to the enfranchisement of we ordinary citizens, it remains an interpretation of the constitutional provision of the 14th amendment guaranteeing each of us equal protection of the law. Thus it is subject to be modified or even overturned by a later Supreme Court decision,  and it ameliorated but did not end Gerrymandering.

One use of Gerrymandering is supported by the civil right community in seeking an end to racial injustice.  It has been to require, in states where segregation has been historically rampant, that the excluded groups not be deliberately marginalized bydeliberately distributing them among white majority districts.  As enshrined by the 1966 federal voting rights act, this remedy substituted one indefensible use of Gerrymandering for a more acceptable one.  The meritorious result has been far more black faces in legislative bodies at all levels of government.

But in the near half century since the act's provisions forced segregationist portions of mostly southern states to get Justice Department approval of voting district changes, a near seismic shift in white attitudes has occurred, culminating in the 2008 election of Barack Obama to the Presidency.  In response, Justice has exempted an increasingly large number of such jurisdictions from the act, which was in part sold as a temporary remedy for past acts of insulting, often violent, always illegal, never moral, all too effective segregation.

In short the cause of  American democracy has been well served by the voting rights act.  But its removal from the political landscape at the earliest possible time  has always been highly desirable due to its one fatal flaw: it substitutes the rights of a group for the rights of individuals.  Calls for the accommodation of Hispanic minorities in the same way have already been heard. Can Asian-Americans be far behind?  Native Americans?  Puerto Ricans? As often, illogic becomes apparent when a line of reasoning is taken to an extreme.

As the only group immediately affected, African-Americans may not agree.  One argument may help convince them: that, at the national level at least, black majority districts have become a dead end.  White politicians have traditionally been able to use the U.S. House of Representatives as a way station to the Senate and beyond.  Careers of black House members, however, have overwhelmingly stalled there.  Obama's only political defeat came at the hands of an entrenched black representative, who never went further, while Obama made a successfully run for the Senate and a larger role in Democratic Party politics that put him in the White House two scant years later. 

The rising star of  Republican Marco Rubio, Florida's newest Senator, shows that Hispanics can win with support from beyond their ethnic base.  Black politicians, too, will have to learn how to win outside their neighborhoods, even as white voters will  have to learn about how and why to support them.  These lessons cannot be learned while hiding behind the voting rights act, nor should we preserve its provisions in Constitutional stone.

States have often required the use of traditional and natural boundaries when forming representative districts.   These, too, would be excluded by the proposed amendment -- with one practical exception.  When a choice of a natural or existing political boundary is essentially neutral, when compared to the alternatives, it makes sense to let it prevail, and the courts most certainly will do so. 

We should not go beyond that practical bit of leniency else we open the gates for the pols to game the system once again.  Exactly 200 years of deliberate Gerrymandering taint traditional boundaries already.   Of natural boundaries only navigable rivers -- the only sensible way to move freight and people when the country was young -- divide populations, often at state borders long since settled and not subject to change by the proposed amendment.  Now we tend to cluster around rails, highways and airports.  As finally happened after cities grew and farming communities dwindled, political boundaries must follow the people.

An excerpt from Wikipedia, the on line encyclopedia:

"The word gerrymander (originally written Gerry-mander) was used for the first time in the Boston Gazette on March 26, 1812. The word was created in reaction to a redrawing of Massachusetts state senate election districts under the then-governor Elbridge Gerry . . . (1744–1814). In 1812, Governor Gerry signed a bill that redistricted Massachusetts to benefit his Democratic-Republican Party. When mapped, one of the contorted districts in the Boston area was said to resemble the shape of a salamander. The exact author of the term gerrymander may never be definitively established. It is widely believed by historians that Federalist newspaper editors Nathan Hale, Benjamin and John Russell were the instigators, but the historical record gives no definitive evidence as to who created or uttered the word for the first time. . . The term was a portmanteau of the governor's last name and the word salamander."