Open Letter to Justice Roberts: Partisan Gerrymandering Is Unconstitutional

The Supreme Court, in holding that partisan gerrymandering is permissible—unless it "goes too far"—stated that the argument made against this practice based on the Court's "one person, one vote" doctrine didn't work because the cases that developed that doctrine were about ensuring that each vote had an equal weight. The Court reasoned that after redistricting, each vote still has equal weight.

I would respectfully disagree. After admittedly partisan redistricting, each vote does not have an equal weight. The purpose of partisan gerrymandering is typically to create a "safe" seat—to group citizens so that the dominant political party has a clear majority of the voters. It's the transformation of a contested seat or even a seat safe for the other party into a safe seat for the party doing the redistricting.

The Court has said that the question is, how much partisan dominance is too much. The answer should be: if the new district is a "safe" district for the dominant party rather than a contested one, it is too much because it intentionally undermines the equal value of everyone's votes.

The whole purpose of gerrymandered redistricting is usually to create districts where the dominant party cannot lose because of its voting advantage, making it impossible for those of the other party and independents to band together to elect the representatives they want. The purpose is to create a "safe" district, not a contested one. The argument against this practice is not that the not-dominant party has a right to elect representatives of its choice—the Court having said there is no such guarantee—but that their vote is no longer of equal weight.

The suggested standard is: When the dominant party redistricts to create safe districts for itself rather than contested ones, it has gone too far. When a party has a clear majority in a district by the luck of the draw, the natural cluster of voters, that's random and not justiciable. But when the party intentionally creates such a district, it violates the 14th Amendment's one-person, one-vote rule: the voters of the dominant party who are in the clear majority in the new district have greater value than those of the other party. That is partisan dominance going too far.

And where the district that is being broken up is a Black-majority district, then you have the added fact that Blacks—after redistricting—have "less opportunity than other members of the electorate" to elect representatives of their choice. Whereas before the redistricting, as in Memphis, they resided in an area where they were "sufficiently numerous and compact to constitute a majority in a reasonably configured district" (this is a very different set of facts than the ones in Callais), after redistricting, that was no longer the case. Blacks then had less opportunity than their White peers of the dominant party to constitute a majority and elect representatives of their choice—that's the purpose of breaking up the Black-majority district—and that is a racial gerrymander in violation of the Voting Rights Act.

Nor can it be said, as the Court has said in the past, that this dilution of the Black vote is no different from partisan gerrymandering, which they have ruled is not justiciable. The Court has also said that when both purposes are present, the one less problematic [as to its constitutionality] is deemed the operating force.

The court has assumed, barring specific data-driven proof otherwise, that the Black vote is the same as the Democratic vote because Blacks as a bloc consistently vote Democratic. Thus, the Court has stated that diluting the Black vote and diluting the Democratic vote is one and the same thing.

While that voting fact is true, it is not true that Blacks vote as Democrats. They vote Democratic primarily because it is the only party that has consistently supported Black interests. If Republicans took up the Black cause, they would vote Republican. Thus, they are voting specifically as Blacks, not as Democrats. And so when their vote is diluted, it is their vote as Blacks, not as Democrats, that is being diluted.

Finally, even assuming that diluting the Black vote was the same as diluting the Democratic vote, where both purposes—partisan and racial—are present, to deem the less problematic purpose the operating force is an affront to the Constitution. If both an unconstitutional and a constitutional purpose are present, the unconstitutional purpose should always take precedence for the Court because it is the Court's mandate to see that the Constitution is not violated, to secure the benefits of the Constitution's protections for those who fall under it.

In the hypothetical cases described, whether viewed as a partisan or racial gerrymander, they are both violations of the law. In the first instance, it violates the 14th Amendment because it violates the one-person, one-vote rule. In the second instance, it violates the Voting Rights Act because the redistricting offers Blacks less opportunity than other members of the electorate to elect representatives of their choosing; should the Court continue to find that Black votes and Democratic votes are indistinguishable, then it would be a partisan gerrymander that would be in violation of the 14th Amendment because it violates the one person, one vote rule.

Ronald L. Hirsch is a teacher, legal aid lawyer, survey researcher, nonprofit executive, consultant, composer, author, and volunteer. He is a graduate of Brown University and the University of Chicago Law School and the author of We Still Hold These Truths. Read more of his writing at www.PreservingAmericanValues.com