On Monday, the Supreme Court of the Unites States heard oral arguments in the case of Wittman v. Personhuballah, to decide whether Virginia lawmakers unlawfully considered race while redrawing congressional district lines in 2012. Most courtroom commentators believe that SCOTUS will be reluctant to overturn the lower court’s decision and reinstate a district map that was drawn by the Virginia legislature to favor Republicans and with the passing of Justice Scalia, a 4-4 tie would uphold the lower court decision.
Republican attorneys argued the lower court ruling was wrong because the intent behind the Virginia General Assembly-drawn districts was to protect incumbents, not to dilute the voting power of African-American voter as the lower court decided.
Did the Republican-controlled General Assembly get into the business of partisan incumbency protection? Yes, and admittedly so. Was it racially-motivated gerrymandering? Hard to tell.
But whichever side of the case the court takes, more than any other element of the partisan-fueled gerrymandering imposed in Virginia, it highlights the disturbing trend for those who view voting rights as a protection of voters, rather than the right of a political party to protect their party-loyal incumbents.
The fact is, voters have not been fully represented before the Supreme Court since the court declared its one-person one-vote standard in Reynolds v. Sims in 1964. In that case, the Court struck down the constitutionality of mal-apportionment, a gerrymandering tactic that allows incumbent politicians to dilute the power of some voters by placing them in districts with a larger population size. Importantly, incumbent politicians from both parties used mal-apportionment to insulate themselves from electoral competition and dilute the power of voters who wanted to vote their incumbent representatives out of office.
Attorney Michael A. Carvin, representing the Republicans, argued that the Virginia gerrymandering plan was acceptable because it was not racially motivated. The motivation, he argued, was simply to protect incumbents. “Every incumbent was re-elected,” he argued in support of the legality of the gerrymandering plan.
Just imagine what the Warren Court would have made of this argument in 1964!
Incumbency protection trumps voter rights. This is because both political parties, collectively, occupy nearly 100 percent of our state and federal offices. So what about the nearly 50 percent of voters who now say that they don’t think either party represents their views?
Neither the Republicans nor Democrats are opposed to SCOTUS starting with the presumption that drawing legislative districts to “protect incumbents” is an acceptable form of gerrymandering. And now, the issue is whether using racial demographics as a part of these incumbent protection plans is also acceptable. In short, the case pits the unlawful practice of “packing” minority voters into a district with the goal of making it easier for white Republicans to be elected in adjoining districts against the more basic goal of protecting incumbents.
But what if the Court were to start with a more basic question: “Should elections serve voters or the partisan incumbents that draw the districts in the first place?”
In Reynolds v. Sims, the last case where both the Democrats and Republicans were on the same wrong side of the voting-rights issue, the court declared the American principle of “one person, one vote.” So how can we protect that principle if the Court has accepted the Republican and Democratic parties’ attempt to frame the voting-rights issue as one that concerns only “two parties, one winner”?
Take California Democratic Party v. Sims, for example, decided in 2000. In that case, the Democratic Party successfully argued in front of the Supreme Court that the State of California had no right to allow voters who were not members of the Democratic Party to participate in “their” primary elections. Forget the fact that taxpayers fund the primaries. Forget the fact that over 90 percent of elections are decided in the primary, and therefore, are usually the only meaningful stage of the election process. And forget the fact that the Supreme Court rejected this very argument in 1944 when the same Democratic Party argued that they had the private “right” to exclude African Americans from their primary elections.
Now, the Republican parties in Utah, Montana, Idaho, and South Carolina are using the Democratic Party’s arguments to close otherwise open primaries—so only members of their party have a say in the all-important primary elections. And just to be clear, the Democratic Party is doing the same thing in Hawaii and elsewhere.
That is because the Democratic and Republican parties are both incumbents. And the two parties have a duopoly over the “their” primary election system, which has become the most important part of the public election process over the last 50 years. Both parties have a vested interest in protecting this duopoly and have successfully reframed voting-rights issues that should be adjudicated under the “one person, one vote” standard, and instead, have the court view these cases as if they concern only the private rights of political parties.
In this case, for example, attorney Michael A. Carvin, representing the Republicans, defended the Virginia gerrymandering plan as not being racially motivated but was created to protect incumbents, calling it a success. “Every incumbent was re-elected,” he said.
Forget whether the attorneys who spend their lives making arguments on behalf of the Democratic Party think that Virginia’s redistricting plan used race to divide the electorate, and therefore, benefit the Republican Party.
Let’s accept the defense of the case that protecting unpopular and partisan incumbents is an acceptable mode of determining to whom our representatives are accountable. At a time when 80 percent of the American electorate is dissatisfied with their representation, maybe we need to refocus our analysis on the rights of voters—not whether race was used to hurt Democrats or help Republicans.
And as Justice Sotomayor stated, “If you’re race-neutral, you move people not on the basis of their skin color but on some neutral principle. And you have shown that at least five precincts were moved where it wasn’t on the base of partisanship, it was on the basis of race.”
Just think about that statement. How can a Supreme Court justice, occupying the same courtroom that held that “one person, one vote” is the standard by which our American democracy should be weighed, take it for granted that drawing districts to benefit “one Republican over one Democrat” or vice versa is somehow an acceptable neutral way to protect all voters—including the 45 percent of voters who don’t think either party represents them?
Unfortunately, whether political parties have the right to divide voters in a way that protects the purely partisan control over our government isn’t even up for argument.
Is partisan gerrymandering alive and well in America? Absolutely—and the Court encourages it. But there should be no question the Court must also act to eliminate racial gerrymandering as well.
For voters who think that both parties manipulate voters in a way that puts their private interests ahead of the public’s right to a nonpartisan election process, it will take a renewed Reynolds v. Jones effort on behalf of individual voters to bring before the Court a more fundamental voting-rights issue: Have both parties used gerrymandering to violate the one-person, one-vote standard?
As we witness the mass exodus of voters away from political parties, the people are ahead of the courts in rejecting extreme partisanship and a party-first view of the world. But until the Court catches up, we shouldn’t be surprised that these voters just aren’t turning out to vote at all. Editor's note: This article originally published on The Daily Beast on March 24, 2016.