Today, the Supreme Court heard oral arguments in the Texas gerrymandering case that has essentially been going on since 2011. The fact that the Supreme Court is even hearing this case is simply part of the delaying tactics that the Republicans have been using to keep these gerrymandered districts in place in that state since 2012.
The case was originally brought in 2011and subsequently a district court initially decided that the new post-2010 census map was an illegal racial gerrymander that discriminated against Latino and African American voters. In their initial decision, the court put together a temporary map for the 2012 election that Texas then appealed all the way up to the Supreme Court. The Court threw out the temporary map and directed the district court redraw the map for the 2012 election with a narrower interpretation. But the 2012 election proved that the temporary map that the district court put together on its second try produced just as good a result for Republicans as they felt they would have gotten with the original 2011 map, whereupon Governor Rick Perry called a special session of the legislature in 2013 to enshrine that 2012 temporary map into law.
That, however, did not mean that the legal case ended and in 2017 the district court again ruled that both the 2011 and now the 2013 map were illegal racial gerrymanders. The district court planned to have hearings on remedial plans this September, late enough to ensure that there would be no change in the maps for the 2018 election. In the interim, Texas decided to request a stay in the case from the Supreme Court, basically arguing that the current map could not possibly be illegal because it was actually drawn by the district court. That argument may seem specious because the district court itself said at the time it drew the temporary map that it was based purely in their preliminary, not final, findings. But that probably doesn’t matter to the conservative bloc on the Supreme Court. In addition, as the liberal members of the Court pointed out, it would be unprecedented for the Court to intervene in the district court’s case at this point since no remedial actions have been ordered. To do so would invite appellants to come to the Supreme Court at every point in a gerrymandering or redistricting case, potentially prompting tens of thousands of appeals to the Supreme Court.
The more important point, however, is that voters in Texas in multiple state and Congressional districts have been disenfranchised in every election this decade because of a gerrymander ruled illegal in 2011. This will not be rectified for the 2018 election and, based on how Republicans and the courts have dragged this case out, no reason to think it will be any different in 2020. So, basically for an entire decade, millions of Texas voters will have been disenfranchised by illegal redistricting. Of course, this problem also effects millions of other voters in North Carolina and Wisconsin who have also had to vote in illegally gerrymandered districts for the majority of elections in this decade. In Virginia last fall, the state-wide margin for Democratic votes over Republicans was 11% yet gerrymandering allowed to GOP to barely keep control of the House of Delegates.
The success of their extreme partisan gerrymanders has led to Republicans believing that the whole electoral process can be manipulated at will in order to maintain power. This goes beyond partisan gerrymandering, restricting access to the ballot with stringent voter ID laws, and reductions in polling places and early voting windows. In Wisconsin, when it became apparent that Democrats would win special elections this year, Governor Scott Walker unilaterally decided not to hold them. In Missouri,the GOP-dominated legislature is attempting to move a ballot initiative that would overturn the state’s right-to-work law from the November ballot to the primary ballot in August when turnout is usually much lower. If successful, this move will also probably be challenged in court.
Even when the courts act, Republicans defy, or attempt to defy, them with impunity. Just this week, Kris Kobach was held in contempt of court in Kansas for defying a court order and refusing to add thousands of legal Kansas voters to the rolls who were initially unable to register because of Kobach’s illegal voter ID system. His actions conceivably disenfranchised tens of thousands of Kansas voters. In Wisconsin, a judge ruled that Walker’s cancellation of special elections was illegal and ordered the elections be held. Walker then attempted to call a special session of the legislature in order to change the laws regarding special elections but ran out of time before the judge’s order kicked in. Unlike Kobach, Walker decided not to violate the court order and risk contempt of court. In Pennsylvania, the State Supreme Court ruled the state’s electoral an illegal partisan gerrymander and the GOP reaction was to begin the legislative process to impeach the members of the Court.
The struggle for universal suffrage, particularly for African Americans and women, has been a struggle since the founding of this country. This is primarily because there is no constitutional right to vote, primarily because of the original sin of slavery and the basic fact that the founders truly did not believe that all citizens should actually vote. Gerrymandering and restricting access to the ballot box are also as old as our democracy. But with the adoption of various constitutional amendments over the years, the successful fight for women’s suffrage, and the destruction of Jim Crow and the passage of the Voting Rights Act of 1965 (VRA), the promise that all citizens, with a handful of exceptions, have a right to vote seemed to have finally been achieved.
But, as the Republican party increasingly became reliant on and then dominated by the votes in Southern states, the very tactics of the Jim Crow era became a more and more important tool for the party in general. When the Supreme Court largely gutted the enforcement procedures of the VRA in 2013, Republicans had been testing the limits of what they could get away with in terms of restricting the voting rights of largely Democratic voters for the prior decade.
In essence, we have now returned to a more limited version of the Jim Crow era, less racially targeted and more politically targeted. With one party basically opposed to the idea of universal suffrage and a court system that is seemingly complicit in the interminable delays in judgement and unable or, more likely, unwilling to offer any redress to those who are disenfranchised, we have reverted to the place we thought we had left behind over 50 years ago. Add to this the increasing frequency that the party that receives the majority of the vote still retains a minority of the power and it is easy to see why people’s faith in democracy is so rapidly declining. At the same time, for those who benefit the most from Republican policies, there is an equal desire to discard democratic principles and embrace an authoritarian regime bent on protecting their privileged status. Taken together, they pose the greatest threat to our democracy in decades.