Supreme Court Again Considers Partisan Gerrymandering, but Voters Are Not Waiting

By Robert Barnes, The Washington Post

25 March 19

 

isappointed with the election results but not ready to give up on politics, Katie Fahey sent out the modern equivalent of a message in a bottle on Nov. 10, 2016.

“I’d like to take on gerrymandering in Michigan,” she typed in a Facebook post. “If you’re interested in doing this as well, please let me know.” She added a smiley face emoji and left for work.

It turned out that hundreds of people were interested.

They grew to more than 425,000 people who signed a ballot petition to amend the state constitution.

They grew to more than 2.5 million people who on Election Day 2018 took away the power of politicians to draw districts that helped themselves and their political parties, and put it in the hands of a commission of ordinary citizens.

“Voters Not Politicians” made Michigan one of five states in 2018 — Ohio, Colorado, Missouri and Utah the others — where voters reined in partisan gerrymandering.

It is an issue that has vexed the Supreme Court, and it returns to the justices this week in cases from North Carolina and Maryland. The court has never found that a state’s redistricting plan was so skewed by politics that it violated the constitutional rights of voters, and again last term it passed up the opportunity.

Referendums in 2018 showed that voters are tired of waiting.

“This is another instance, like Citizens United, where the court is wildly out of step with public opinion,” said Josh Silver, co-founder of a nonprofit group called RepresentUs. He was referring to Citizens United v. FEC , the court’s 2010 decision that expanded the role of corporate and union spending in elections.

“The public does not want the game rigged in favor of either party,” he said.

Groups such as Silver’s and organic organizations like the one started by Fahey are making democracy issues such as gerrymandering and voting rights, well, if not sexy, at least wonkishly attractive.

An anti-gerrymandering documentary, “Slay the Dragon,” will make its debut at the Tribeca Film Festival next month. A 12-minute tutorial on the subject by RepresentUs is “crushing” social media, Silver said.

It features one of his board members, Oscar-winning actress Jennifer Lawrence, giving a tutorial on redistricting. Silver said it has been watched more than a half-million times on YouTube, viewed 5.8 million times on Facebook “and millions of more times on Instagram,” he said.

Fahey said that partisan gerrymandering just struck a nerve with voters.

“Being able to intentionally target someone based on what political party they are voting for and trying to make their vote count more, or less, should be illegal,” she said in a recent interview. “I think it goes against a lot of principles, such as ‘one person, one vote’ or even just the intentions behind representational democracy.

“Legally I’m no expert, but on Nov. 6, I saw millions of people saying we are sick of being targeted that way,” Fahey said.

But, again, the Supreme Court may stand in the way.

The court sidestepped the issue last term, finding that those challenging a Wisconsin plan drawn by Republicans did not have the legal standing to bring the case and that the Maryland plan drawn by Democrats was not yet ripe for a challenge.

But Chief Justice John G. Roberts Jr. worried during arguments in those cases that having to referee such partisan fights would put the Supreme Court in an untenable position.

“We will have to decide in every case whether the Democrats win or the Republicans win,” he said.

And even more troubling for those who favor independent commissions: It’s no longer clear there is a majority on the Supreme Court that believes such an idea is constitutional, when it come to drawing congressional districts.

In 2015, the court ruled 5 to 4 in favor of Arizona’s redistricting commission, one of the first in which voters took away from the legislature the sole power to draw congressional lines.

The majority was made up of the court’s liberals along with now-retired Justice Anthony M. Kennedy. And it came over a vehement dissent from Roberts and the court’s other conservatives.

Roberts said it violated the Constitution’s command that “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

He accused the majority of using a “magic trick” to impose its policy preferences.

“No matter how concerned we may be about partisanship in redistricting, this court has no power to gerrymander the Constitution,” Roberts wrote.

Michigan's grass-roots effort

Fahey is only half-joking when she says her motivation was dreading Thanksgiving.

She supported Hillary Clinton in 2016. Her parents decided to give Donald Trump a try, and other family members split as well.

Instead of a round of “you-voted-for-this-person-you’re-evil” finger-pointing, Fahey thought she could build on the energy she saw when her usually nonpolitical family members debated the health-care and child-care policies of Clinton, Trump and Sen. Bernie Sanders (I-Vt.) at a birthday party.

“I thought that Bernie Sanders’s ‘political revolution’ and Donald Trump’s ‘drain the swamp’ messages actually had a lot in common,” said Fahey, who at the time was a 27-year-old working at a recycling nonprofit organization.

“One of the reasons we’re so frustrated with politics is that there are a lot of systemic reasons that it’s not working for us,” she said. “It’s just infuriating if you pay attention to it.”

Fahey’s Facebook posting tapped into that 2016 energy. It was shared and shared some more, and a fledgling movement was formed. To find out what everyone thought should be done about gerrymandering, the group held 33 town hall meetings in 33 days.

They realized their agreed-upon solution — a commission of ordinary citizens — would never get the legislature’s approval. So the only route was through a ballot initiative.

That would require gathering 315,000 signatures in six months. A retired math teacher who had joined the effort figured out a formula for reaching the goal, and the group eventually secured more than 425,000. Homemade clipboards for volunteers reduced the costs, and Fahey’s Trump-supporting parents joined the effort.

Nancy Wang, a University of Michigan law professor who became part of the campaign and is now the board president of Voters Not Politicians, said the publicity of the Supreme Court challenges on partisan gerrymandering raised the issue’s profile.

And the water crisis in Flint, the state’s troubles with its education system and other issues made the state a ripe environment, said Elizabeth Battiste, the group’s communications consultant.

“Michigan is such a pure example of how government can fail so many people,” she said. “There was a sense of learned hopelessness and such a distrust of the system.”

Battiste added: “I think our name just kind of helped remind people every single day what we were about. We’re not the Democratic Party, we’re not the Republican Party, we’re like, the voters. We want something that works for us.”

The proposal survived a challenge in the Michigan Supreme Court that it would make too radical a change to the state constitution. It was then approved by 61 percent of voters.

The group eventually raised more than $16 million, about $12 million of which came from liberal-leaning organizations outside the state. “You can’t crowdsource TV ads,” Fahey said, adding that she and the group’s founders insisted no strings be attached to the money. She remained the executive director for the effort.

But it has led to the perception that the recent movement against partisan gerrymandering is sparked by liberals and Democrats. Because Republicans controlled most state legislatures after the last census, they benefited from the map drawing.

But Fahey and Wang say the result of their efforts is nonpartisan. It creates a 13-member commission to draw legislative and congressional lines after the 2020 Census: four Republicans, four Democrats and five people who don’t identify with either party. It bars partisan officeholders, their employees and family members, lobbyists and others with ties to the current system. It forbids creating districts that help one party over the other, or incumbents.

A group of 200 potential commission members will be assembled, and partisan legislative leaders will be allowed to strike 10 percent they think might have ulterior motives.

“Use the legislators for what they’re good at,” said Cynthia Dai of the California Citizens Redistricting Commission, who along with a colleague recently met with Wang and others implementing the plan. “Opposition research.”

Each state that approved a referendum in 2018 took a different approach. Ohio, for instance, has a greater role for state legislators but attempts to keep them from passing maps by party-line votes. Missouri will leave drawing legislative districts to a “nonpartisan state demographer.”

All the redistricting wins in 2018 were in states where citizen initiatives are an option. But in the majority of states, voters are not allowed to make changes without the legislature’s approval, which underscores the importance of the Supreme Court cases being argued this week.

Silver said the votes in 2018 have created momentum. “We’re seeing possible ballot measures in Arkansas and Oklahoma in 2020,” he said. “We’re seeing very promising activity in Virginia, the beginnings of what might be a legislative movement in Pennsylvania and Maryland. I think the map continues to grow.”

And, perhaps, that will have an impact at the Supreme Court, he said.

“Despite justices’ desire to argue the opposite, the court is swayed by public opinion,” Silver said. “And our job is showing the voice of the American people — liberal, conservative and in-between — in support of common-sense democracy reforms.”