Gerrymandering the Constitution: More than statehouse politics at risk

On Tuesday, October 3, the Supreme Court will hear oral argument in one of the most important cases of the term, Gill v. Whitford. The primary issue in Gill is whether partisan gerrymandering can be challenged in court at all and, if so, when is such gerrymandering unconstitutional.

But the stakes here are much higher than whether the challenged districts in Wisconsin, where Gill arose, should be redrawn. Left unchecked, partisan gerrymandering could lead to permanent and profoundly undemocratic changes to the Constitution itself.

{mosads}When taken to an extreme, partisan gerrymandering can result in a significant skew between the statewide vote and the partisan make-up of a state’s legislature or congressional delegation. In Wisconsin, Republicans controlled the redistricting process after the 2010 census. Under the map that they drew, although they obtained only about 48 percent of the statewide vote in the 2012 state legislative elections, they won 60 percent of the seats in the state assembly.

Nor is Wisconsin the only state to exhibit such a skew. Virginia and North Carolina have similar skews in both their legislatures and their congressional delegations. And Republicans in Maryland have complaints about Democrat-controlled redistricting. Improved technology and data collection about voters make it possible to draw districts that track partisan preferences with increasing precision. Left unchecked, therefore, these skews will only increase over time.

The Constitution contains no requirement of precise proportionality between the votes a party’s candidates receive and the number seats it holds in a legislature, and Democratic voters’ tendency to live in more densely populated areas than Republican voters may contribute to a districting skew in favor of Republicans even in the absence of redistricting that takes partisanship into account. Moreover, the nature of a democracy is that there are losers as well as winners; we don’t all get to have our favored candidates in charge.

But taken to an extreme, partisan gerrymandering can lead to state legislatures and congressional delegations that are deeply unrepresentative of the political views of the people of a state. And extreme partisan gerrymandering can also be self-perpetuating because the same party continues to control the redistricting process even if that party does not command majority support among the voters.

Those of us who live outside Wisconsin (or Virginia, North Carolina, or Maryland) should not assume these issues do not affect us. We all have a stake in ensuring that, in rough terms, elected representatives throughout the country are accountable to the people. Nowhere is that truer than when it comes to amending the Constitution.

The Framers made it hard to amend the Constitution without widespread support. A supermajority of states must ratify any constitutional amendment before it goes into effect. Partisan gerrymandering, however, opens a door to the proposal and ratification of amendments are not in fact widely supported.

Article V of the Constitution, which sets out the mechanisms for amendments, provides for Congress to call a constitutional convention to consider amendments — also known as a convention of states — “on the Application of the Legislatures of two thirds of the several States …” If such a convention occurs and proposes amendments, they are then sent to the states for ratification, Three quarters of the states must vote to ratify any amendment for it to take effect.

Because state legislatures play such a significant role in this process, their make-up can affect how it operates. It takes 34 state legislatures to call for a convention, and 38 states to ratify any amendments proposed by the convention. Currently, Republicans have complete control of 33 legislatures.

Of course, in many states, that control reflects the popular vote. But in several of those 33 states, state legislative control is, at least arguably, due to partisan gerrymandering. In other words, we are within one state of the possibility of a constitutional convention called on terms dictated entirely by one party — even if that party and its proposals do not enjoy majority support — and within five states of such proposals being ratified.

The idea of a constitutional convention is not intrinsically a partisan or ideologically conservative one. Several states, both red and blue, have called for a convention to overrule Citizens United. But some, like the American Legislative Exchange Council (ALEC), are pushing for fundamental — and fundamentally conservative — changes to our constitutional structure, specifically designed to weaken the federal government.

ALEC, for example, urges that the Constitution be amended to require approval by a majority of state legislatures before the federal government incur debt.

In the absence of constitutional and judicially-enforceable limitations on partisan gerrymandering, it is well within the realm of possibility that constitutional amendments, or even an entirely new constitution, could be enacted despite a lack of popular support, much less the kind of overwhelming popular support that, under any theory of democratic accountability, such dramatic changes should enjoy.

As James Madison explained in Federalist No. 39, the government and its powers should be “derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it.”

If the Supreme Court fails to restrict extreme partisan gerrymandering, the consequences could go far beyond questions of control of individual statehouses and congressional delegations — and could run afoul of this basic principle of our democratic republic.

Carolyn Shapiro is an associate professor of law at IIT Chicago-Kent College of Law, the founder and co-director of Chicago-Kent’s Institute on the Supreme Court of the United States (ISCOTUS) and director of the Public Interest Certificate Program. Shapiro is a former Illinois Solicitor General and is one of the 18 constitutional law professors on an amicus brief in support of the respondent in Gill v. Whitford.