Meddle though they may, the Russians aren’t the ones who decisively rig American elections to the Republicans’ advantage. That distinction belongs to the five Republican justices on the United States Supreme Court.
On Thursday, in a sadly predictable 5-to-4 decision, the Court ruled that judges have no authority to overrule partisan gerrymandering. The ruling will enable the current Republican legislatures in North Carolina, Wisconsin, and kindred states to misshape new districts in the decennial post-Census line-drawing to their considerable advantage.
These are states where Democrats have swept recent statewide elections, but where Republicans have outsized majorities in their legislative and congressional delegations. In North Carolina, for instance, Republicans hold ten of the state’s 13 congressional seats, though the statewide vote for House members has been split roughly evenly between the Democrats and the GOP.
The case of North Carolina illustrates the current reality of district elections in many states: With the ability to run demographic and political data through computers, legislators are now able to choose their voters, rather than the other way around. Republican General Assembly member David Lewis had complete confidence that the map he devised the last time North Carolina was redistricted would yield the proper partisan outcome. “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats,” he said. And literally by design, Republicans have carried those ten districts in successive elections, though they won just 53 percent of the total House vote in 2016.
In her dissenting opinion from today’s Court ruling, Justice Elena Kagan noted that by using the data available in our digital age, legislators are now choosing their voters rather than the reverse. “These are not your grandfather’s—let alone the framers’ gerrymanders,” she wrote. Today’s gerrymanders have turned “upside-down the core American idea that all governmental power derives from the people.”
More attention may be paid in the next several days to the Court’s other big Thursday ruling, which denied, at least temporarily, the Trump administration’s attempt to put a question about citizenship status on the 2020 Census. On this decision, Chief Justice John Roberts sided with the four liberal justices in rejecting the administration’s bid, which would have kept many immigrants from responding at all, thereby reducing representation from such immigrant-heavy states as California.
But Roberts’s split—providing the fifth vote in both of today’s key decisions—was predictable. He has made clear his concern that the Court not be viewed as a primarily partisan institution, even going so far as issuing a statement earlier this year taking issue with President Trump’s labeling his colleagues as “Obama justices” and “Trump justices.” Had he sided with his fellow Republican on the citizenship question, he knew that the Court’s less than stellar reputation would have taken all manner of hits. In a nation almost as polarized as it was in the years immediately preceding the Civil War, a double-whammy of decisions approving both the citizenship question and gerrymandering would have delegitimized the Court almost as much as the Dred Scott decision once did.
Even with Roberts’s split decisions, however, that assessment—that the Court has become a leading (perhaps the leading) partisan institution—is altogether warrented. Of the two cases, the gerrymandering one was the more fundamental, locking in Republican legislative control for the foreseeable future in any number of states. As such, it joins a succession of key rulings that have cemented Republican control despite the popular pluralities and majorities that the Democrats have won. Shelby County v. Holder effectively neutered the Voting Rights Act, enabling Republican officials to disfranchise minority voters to keep states like Georgia in Republican hands. Last year’s Janus decision diminished the capacities of major unions to mobilize pro-Democratic voters come election time. And, of course, Bush v. Gore handed the White House to a Republican before a full recount of Florida votes could be completed.
Thursday’s gerrymandering ruling strikes at something even more fundamental than the partisan neutrality of the judiciary: It negates the most fundamental premise of democracy—majority rule. Gerrymandering is a tool that enables minority parties to cling to power even when a majority of voters selects their opponents. Indeed, the overruling of the people’s will is fast becoming a common Republican practice: In Florida, for instance, though voters overwhelmingly approved a ballot measure last November to allow ex-felons to vote, the state’s GOP legislature is now imposing poll taxes on those ex-felons to deny them the franchise. And Florida is just one of several states where Republican legislatures have recently negated voter-approved measures.
But Thursday’s ruling cements the Court’s role as the decisive protector of Republican control even when that entails upending the primacy of majority rule. So much for democracy in Mr. Roberts’s neighborhood.