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The IBA’s response to the situation in Ukraine
The United States Supreme Court has plenty of big issues on its October docket. From the constitutionality of the ‘travel ban,’ to the impunity of corporations for human rights abuse. But, the Wisconsin redistricting case is, arguably, the most fundamental, as it tests the willingness of US courts to halt democratic backsliding. The key to saving democracy, say scholars who’ve studied its collapse around the world, is for strong institutions to constrain incumbents from treating it as a winner-takes-all game and achieving a ‘one-party lockup’.
Wisconsin’s Gill v Whitford presents the first US gerrymander in 30 years to be rejected at trial for gaming an electoral map to favour one party. Having won a narrow edge in 2010, Wisconsin Republicans programmed a partisan ‘tilt’ into mapping software. They then won over 60 per cent of the Assembly with under 49 per cent of the vote.
Democrats use the same trick to magnify large majorities in states like Illinois and Maryland. But, in 2012, in seven key states, a Republican electoral minority captured a majority of either the congressional delegation (Arizona), the state legislature (Florida, Ohio), or both (Michigan, North Carolina, Pennsylvania, Wisconsin). And so, a nation divided roughly evenly has seen two-thirds of its legislatures captured by one party.
America has a long tradition of courts policing political maps for racial bias. But there’s an even longer tradition of both parties rigging maps for purely political advantage with wild abandon. The Daily Milwaukee News decried ‘A Horrible Democratic Plot’ to game the vote back in 1869. As technology improved, the plots grew more horrible. The US Supreme Court accepted in 1986 that a partisan gerrymander could at some point be unconstitutional. But it never laid out a standard and, until now, courts never attempted to draw a line. As Professor Daniel Tokaji puts it, ‘a constitutional standard for partisan gerrymandering is the holy grail of [US] election law’.
The plaintiffs argue that Wisconsin undermined their representational rights – under either the Equal Protection Clause or the First Amendment – by curbing their ability to translate votes into legislative seats on a state-wide basis. Lead lawyer Paul Smith – whose necktie from the day he won the gay rights milestone Lawrence v Texas is displayed at the National Museum of American History – says the Court need not adopt any one measure of partisan skew. He merely asks the justices to recognise that social scientists have now developed a range of suitable tools, and Wisconsin’s results were so extreme that its map fails any test. Let courts develop the standard over time, says Smith.
Wisconsin replies that such an approach would prompt chaos. Presumably all judges would need to subscribe to the American Political Science Review, its brief adds acerbically. In the absence of a workable standard, the Supreme Court should declare the issue nonjusticiable.
Libertarian Grand Old Party (GOP) amici, like Rick Esenberg of the Wisconsin Institute for Law & Liberty, object that the plaintiffs seek proportional representation, which isn’t a part of the US constitutional design by any account. He says the GOP advantage is a function of simple demography. Social scientists only confirm what we all know from any US map showing blue dots in a sea of red: that Democrats waste their votes by clustering in big cities and college towns.
Still, some moderate Republicans back the plaintiffs, from ex-presidential candidates Bob Dole and John McCain to the former leader of the Wisconsin State Senate. As McCain’s brief pithily puts it, gerrymanders now implicate the very ‘functioning of American representative democracy’ by violating ‘the core principle of republican government, namely, that the voters should choose their representatives, not the other way around’.
Republican, Arizona, Sheldon Whitehouse , Democrat, Rhode Island
Gill v Whitford is best understood in the context of a larger debate over America’s vulnerability to a global epidemic of ‘democratic backsliding’. In ‘How to Lose a Constitutional Democracy’, Chicago law professors Aziz Huq and Tom Ginsburg count no fewer than 48 slides into partial autocracy. ‘The US is not immune from world trends,’ they warn, for there is ‘nothing particularly exceptional about the American Constitution – at least in any positive sense.’
In this light, the Wisconsin GOP’s electoral manoeuvre recalls the Fidesz Party of Hungary engineering a legislative supermajority with less than half the popular vote. Likewise, the refusal of Poland’s Law and Justice Party to seat judges appointed to the high court by the outgoing government evokes the refusal of America’s GOP-controlled Senate to seat Obama’s Supreme Court nominee; as well as efforts by the GOP-controlled North Carolina legislature to limit court appointments by the incoming Democratic governor (as part of a broad and hotly-contested assault on executive power in North Carolina). What unites all these episodes is a disdain for the legitimacy of the opposition, and a disregard for restraint (legal or normative) in the reckless pursuit of one-party dominance.
Huq and Ginsburg argue that political norms are vital in the US because, contrary to popular myth, the US Constitution is relatively weak. Other constitutions create ombudsmen for corruption and human rights, give the opposition party a right of investigation, guard against partisan press regulation, and entrench the independence of the courts and civil service. ‘We would do well to reject feel-good talk about American exceptionalism,’ caution Huq and Ginsburg, and embrace the founders’ trepidation about the endurance of US democracy.
An exultant norm-breaker, President Trump wouldn’t commit to accepting a loss at the polls. Now he complains of non-existent voter fraud in a bid to justify voter suppression. He attacks judges who oppose his policies or interests. He sporadically threatens to prosecute opponents, protestors and critical media organisations. He seeks to assert executive control over prosecutors and bureaucrats. He hypes national security threats, and poisons the stream of public information. He pardoned a loyalist who considered himself above the law (Arizona Sheriff Joe Arpaio) and fired an official who insisted that the executive is subject to law (FBI Director James Comey) for disloyalty.
‘The firing of Director Comey is a legitimate reason for grave concern,’ says Huq, ‘because the mechanisms we have for investigating either corruption, self-dealing or the misuse of power by high-level officials [is] very weak in the United States. We just don’t have many such mechanisms, and the FBI has historically been one of the few mechanisms that might do some work.
And to see it attacked on the basis of it performing that very function... sends a signal across government that loyalty to the current regime is more important than fidelity to the law or the Constitution.’
Of course, some political scientists still believe in American exceptionalism. Duke University’s Peter Feaver is a self-described mainstream Republican, who served on the National Security Council under both parties. To Feaver, President Trump has only shown the resilience of American institutions. Congress, the courts, the media and, above all, the office of the special counsel: Feaver sees all as fulfilling their roles in checking executive power.
‘Really, the dominant narrative [of Trump’s first year] has been ineffectiveness, even weakness,’ says Feaver, ‘not malevolent effectiveness taking us to a dictatorship.’ As for gerrymandering, it ‘has contributed to political dysfunction,’ Feaver concedes, ‘and I do worry about that. [But] it hasn’t produced political tyranny. We’re on the road to political gridlock.’
It can’t be denied that President Trump appears to step on his own toes. Most notably, the President’s firing of Comey sealed the appointment of a fiercely independent special counsel. But is this sufficient assurance that America’s institutions could withstand a defter demagogue? It’s easy to imagine an alternative reality where the President appointed loyalists throughout the top ranks of the Department of Justice, and opposed the selection of Robert Mueller as Special Counsel. A lucky near miss is not the same as a stress test. Furthermore, the President can still demand Mueller’s removal, or obstruct his work.
Nor should we be complacent because gerrymandering has mainly produced gridlock of late. The same mechanism that lets a party construct a modest, temporary governing advantage could be used to construct a big, permanent advantage.
Judicial review is the rare check that a strong majority of US experts still believe in, according to a recent academic survey. But, judges can only control what they deem justiciable. A Supreme Court that lets gerrymandering run amok may doom itself to become another single-party institution. Challenging Wisconsin’s map would be a good first step in preserving democracy.
Michael Goldhaber is the IBA's US Correspondent. He can be contacted at email@example.com