The Washington PostDemocracy Dies in Darkness

Opinion We can fix gerrymandering. It’s a matter of choosing the right words.

The Supreme Court building in Washington on March 26. (Carolyn Kaster/AP)

Steve Neal, a Democrat, represented North Carolina in the House of Representatives from 1975 to 1995.

On Tuesday, the Supreme Court heard arguments in the partisan gerrymandering case Rucho v. Common Cause. After the 2010 Census, the Republican-controlled state legislature in North Carolina redrew the state’s congressional districts in such a way that, in last year’s elections, 10 of the 13 representatives chosen were Republicans, even though voters in the state cast only 47 percent of their votes for the GOP. There have been several examples of this type of gerrymandering in earlier years in North Carolina, as well as in other states. All these elections have one thing in common: state legislators from both political parties draw district lines so that it is almost impossible for any but favored candidates to win. Yes, it’s unconstitutional, and it’s entirely intentional.

North Carolina’s 2016 election yielded an outcome similar to 2018: Ten of the state’s 13 elected House members were Republicans — even though they’d only won 53 percent of the votes. After that election, The Post sought an explanation from the person most responsible: “I think electing Republicans is better than electing Democrats,” said Rep. David Lewis, a Republican member of the state’s General Assembly, addressing fellow legislators after they passed the redistricting plan. “So I drew this map to help foster what I think is better for the country.” He added: “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.” The Republican political strategist Karl Rove was equally unabashed in a 2010 op-ed in the Wall Street Journal: He who controls redistricting can control Congress.

Allowing state legislatures, rather than the people, to choose our congressional representatives is a huge problem for our democracy. Both the text and original intent of the Constitution make it clear that this should not happen. Article I, Section 2 of the Constitution provides that, “The House of Representatives shall be composed of members chosen every second year by the people of the several states.” Article I, Section 3, provides that senators will be chosen by state legislatures. (Currently, though, we choose senators by election by the people, in accordance with the 17th Amendment.) Obviously, the framers could have decided that members of the House be chosen by state legislatures had they wanted. They did not do so.

Fortunately, there is a constitutionally inspired way to end partisan gerrymandering. The Supreme Court could rule as follows in Rucho: When redistricting by state legislatures, it is required that the percentage of congressional districts favoring each of the two major political parties will be as close as possible to the same as the percentage of the statewide vote in the general election immediately preceding redistricting for the candidates of these political parties.

This proposed language, along with previous court decisions and current law, could provide the key to ending partisan gerrymandering. It would also establish the type of standard the Supreme Court has previously made clear is essential: “a comprehensive judicially discernible and manageable standard for drawing electoral boundaries.”

The justices could then elaborate on how that standard would be expressed in practice. In my view, it should lay out the following requirements:

When state legislatures undertake redistricting, they must stipulate that the percentage of congressional districts favoring each of the two major political parties will be as close as possible to the same as the percentage of the statewide vote in the general election immediately preceding redistricting for the candidates of these political parties. Congressional redistricting may not dictate electoral outcomes, favor or disfavor a class of candidates, or evade other constitutional restraints. Congressional districts will be as close as reasonably possible to the same population. Representatives will be chosen by the people of the states and not by state legislatures. One person’s vote will be worth as much as another’s. Each congressional district should be as politically competitive as possible — there will be no packing or cracking of congressional districts. Finally, congressional districts must be compact, contiguous, and respectful of history of association, of common interests, of political boundaries and other provisions of law consistent with the above.

These rules would end partisan gerrymandering and function as a clear set of guidelines for courts, state legislatures, commissions, and citizens for determining the constitutional legitimacy of voting districts. Such a ruling would also end several other constitutional violations caused by gerrymandering — including First Amendment violations of rights of expression and association and the 14th Amendment’s equal protections clause.

In far too many instances, state legislatures — rather than the people of the states themselves — have been unconstitutionally choosing our congressional representatives. Our democracy has been correspondingly corrupted. The Court should now insist that it is the people of the states, not state legislatures, who choose our representatives to Congress. That was the intent of the Founders of our country and the framers of our Constitution. If the court adopts the standard proposed above, that can happen. It’s just a matter of choosing the right words.

Read more:

Paul Waldman: Will the Supreme Court unleash a frenzy of GOP partisan gerrymandering?

Roy Cooper and Larry Hogan: Take it from us governors: Politicians shouldn’t draw electoral maps

George F. Will: The Supreme Court should steer clear of gerrymandering cases