By Congressman Elijah Cummings

A Supreme Court Majority: Missing in Action on Partisan Gerrymandering

Last month,  the United States Supreme Court, by a slim 5-4 majority, ruled that our federal courts must stay out of constitutional disputes over partisan gerrymandering in which the political parties in control of the state legislatures draw congressional and state legislative districts to disproportionately favor their own parties’ candidates.

Chief Justice John Roberts, writing for the 5-4 majority, concluded that partisan gerrymandering, although distasteful, must be solved by the political process, not the federal courts.  In effect, the majority decision left the resolution of these constitutional challenges to the individual states (including the state courts) or to the Congress.

For every American committed to the principle of one-person, one-vote in this country, the spirited dissent to this decision <https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf > authored by Justice Elana Kagan (joined by Justices Ginsberg, Breyer, and Sotomayor) should be required reading.  

As constitutional lawyer, law professor and long-term Supreme Court analyst Ms. Amy Howe has observed:

Justice Kagan stressed that the majority’s decision in Rucho v. Common Cause and Lamone v. Benisek (cases arising out of North Carolina and Maryland), refused “for the  first time ever” to “remedy a constitutional violation because it thinks that the task is beyond judicial capabilities.”

Rep. Elijah Cummings (MD.-7) . (Courtesy Photo)

To better understand Justice Kagan’s concern, consider these facts.  

Republicans won 9 of 12 congressional seats in North Carolina after receiving just 50 percent of the vote.  In Maryland, Democrats won 7 of 8 House seats after receiving no more than 65 percent of the vote.

“Is this how American democracy is supposed to work?” Justice Kagan rhetorically asked in her dissent. “I have yet to meet the person who thinks so.”

The Congressional Struggle for Reform

Maryland Congressman John Sarbanes [MD-03], Chair of our Democracy Reform Task Force, and I (a Co-Chair), together with the overwhelming majority of our Democratic colleagues, are clear that this is not how our democracy is supposed to work.  Americans deserve to know that when they cast their ballot, their vote in choosing who represents them truly matters.

The ballot is our voice, and we must not let it be muted by partisan gerrymandering.  The majority’s decision in the Rucho and Lamone cases reinforces the urgent need for comprehensive redistricting reform to ensure that every American’s vote matters.  

On March 8, the House Democratic majority passed and sent to the Senate H.R. 1, our For the People Act.  It includes urgently needed democracy reform provisions including a mandate for independent redistricting commissions to draw the lines fairly in states across the country.  

As Congressman Sarbanes has observed,  “the American people deserve a redistricting process that’s impartial and transparent, and that respects their voice.”  

Companion reform legislation in the Senate, S. 949, also includes a mandate for independent redistricting commissions.  It now has 46 Democratic co-sponsors (including Maryland Senators Cardin and Van Hollen).  

However, in an act of blatantly partisan and anti-democratic obstinance reminiscent of Southern objections to civil rights legislation in the 1960s, Senate Majority Leader McConnell and his Republican colleagues have refused  to give our reform legislation so much as an up-or-down vote.

Although my Democratic colleagues and I will continue to demand action by the Senate, the Senate Republican Leadership has not yet been moved to action by its professed love for our democratic institutions.  It appears likely, therefore, that only the active engagement of the American people between now and Election Day 2020 will assure that their voices are heard and obeyed.

The Struggle for Reform in the States

Once again, as I have observed in other contexts, “We, the People,” must be the ultimate guardians of our democracy.  As President Obama’s former Attorney General, Eric Holder, observed on July 4 in the Washington Post, “If the Supreme Court won’t protect our democracy, voters will.” 

Eric Holder correctly points out the scope of this Court’s recent opposition to democratic reforms: 

  • How the 2010 Citizen’s United decision has allowed unregulated money to give unwarranted political advantage to those with substantial means; 
  • How the 2013 Shelby County ruling has limited our ability to proactively defend against racial discrimination in voting; and 
  • How, now, the Rucho and Lamone cases further shift political power away from the American people and toward entrenched special interests.

Fortunately, reformers are taking the struggle for reform into the states. The National Democratic Redistricting Committee https://democraticredistricting.com/, with the support of former President Obama, is attacking unfair and undemocratic redistricting from every angle, struggling to assure that congressional and state legislative maps are fair and reflect the will of the voters. 

This Democratic coalition is bringing racial gerrymandering claims in the federal courts and partisan gerrymandering cases in the state courts. At the same time, our coalition is supporting reform efforts on the ballots and in state legislatures to create independent, citizen-led redistricting commissions.

From Democrats in the Congress to those who are working on the front lines, the message to America is clear. As Attorney General Holder has observed, our democratic political system is being tested, but we have overcome these tests before.

Despite the challenges to our democracy that we now face, we can do so once again.

Congressman Elijah Cummings represents Maryland’s 7th Congressional District in the United States House of Representatives.

Disclaimer: The views and opinions expressed in this article do not necessarily reflect the official policy or position of The Afro-American Newspapers.