The partisan redistricting tactics of cracking and packing aren’t merely flaws in the system—they are the system.
To look on the bright side for a moment, one effect of the Republican assault on elections—which takes the form, naturally, of the very thing Republicans accuse Democrats of doing: rigging the system—might be to open our eyes to how undemocratic our democracy is. Strictly speaking, American government has never been a government “by the people.”
Virtually all of these “reforms” will likely make it harder for some people to vote, and thus will depress turnout—which is the not so subtle intention. This is a problem, but it is not the fundamental problem. The fundamental problem is that, as the law stands, even when the system is working the way it’s designed to work and everyone who is eligible to vote does vote, the government we get does not reflect the popular will. Michael Kinsley’s law of scandal applies.
Some checks on direct democracy in the United States are structural. They are built into the system of government the Framers devised. One, obviously, is the Electoral College, which in two of the past six elections has chosen a President who did not win the popular vote. Even in 2020, whengot seven million more votes than his opponent, he carried three states that he needed in order to win the Electoral College—Arizona, Georgia, and Pennsylvania—by a total of about a hundred thousand votes.
But the House of Representatives—that’s the people’s house, right? Not necessarily. In the 2012 Presidential election,defeated Mitt Romney by five million votes, and Democrats running for the House got around a million more votes than Republicans, but the Republicans ended up with a thirty-three-seat advantage. Under current law, congressional districts within a state should be approximately equal in population.
Partisan gerrymandering has produced many loopy districts through the years, but today, on a map, gerrymandered districts often look quite respectable. No funny stuff going on here! That’s because computer software can now carve out districts on a street-by-street and block-by-block level. A favorite trick is moving a district line so that a sitting member of Congress or a state legislator is suddenly residing in another district.
Even the census, on which apportionment is based, is subject to partisan manipulation. Was it at all surprising to learn recently that the Trump Administration tried to interfere with the 2020 census in order to reduce the population in Democratic districts? Trump officials must have calculated that they had little to lose. If they failed , no harm, no foul.
Partisan redistricting is why Republicans won five of Wisconsin’s eight congressional seats in 2020 even though Biden took the state. Biden carried the Fourth Congressional District, which includes Milwaukee, by fifty-four percentage points. Was that district packed? Not necessarily. The tendency of Democrats to concentrate in densely populated urban areas naturally tends to dilute their votes statewide.
“The state level is increasingly dominated by national groups who exploit the low-information environments of amateurish and resource-constrained legislatures, declining local news media, and identity-focused voters,” Grumbach maintains. These national groups aim to freeze out the opposition, and redistricting is a powerful tool for that.
But, precisely because they have no stake in the electoral status quo, the Justices might decide that gerrymandered vote dilution triggers, among other constitutional provisions, the equal-protection clause of the Fourteenth Amendment. It seems pretty clear that your right to vote isn’t very “equal” if someone else’s vote is worth more.
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