James Madison said in Federalist No. 52, “where annual elections end, tyranny begins;” which prompts the question: ‘how close to tyranny do we come, when those annual elections are shaped to all but ensure a nominee’s victory?’ This is precisely the question the Supreme Court will have to ask in what is being called “the most important gerrymandering case in more than a decade.”
The Constitution requires that every 10 years (last in 2010, next in 2020) a census be taken and electoral lines be drawn to reshape “district boundaries from which the people choose their representatives to the U.S. House of Representatives;” providing that each Representative “shall not exceed one for every thirty Thousand.” This is called “redistricting.”
The redistricting process has never been a simple task, or a flattering one. In 1812, Massachusetts Governor Elbridge Gerry enacted a law of redistricting that favored the Democratic-Republican Party and consolidated the vote of the Federalist Party. The districts were so skewed and misshapen that the Boston Gazette published a cartoon of a winged salamander-monster called the “Gerrymander,” and the name has stuck to this day.
Presently, the gerrymandering process in the state of Wisconsin has been called into question by way of 2011 Wisconsin Act 43. The plaintiffs of Whitford v. Gill allege that the Act is an unconstitutional partisan gerrymander, and maintain that “the Republican-controlled legislature drafted and enacted a redistricting plan that systematically dilutes the voting strength of Democratic voters statewide.” It is being argued that state Republicans have employed two types of gerrymandering techniques: “Cracking” – “dividing a party’s supporters among multiple districts so that they fall short of a majority in each one;” and, “Stacking” – “concentrating one party’s backers in a few districts that they win by overwhelming margins.”
Recalling the history of the gerrymander, this allegation is nothing new. What makes this case so momentous is that, though the Supreme Court has determined that “too much partisanship in map drawing is illegal… it has never said how much is too much.” This may soon change.
The Constitutionality of the gerrymander is not without its limitations. Equal population, requiring “as nearly as practicable” or even a “substantially equal” numbers of people, secures that no district would be over or under represented. Restrictions based on race and ethnicity, in pursuance of the Voting Rights Act of 1965, prevents cracking and stacking based on the color of one’s skin or origin of birth, and ensures the opportunity “to participate in the political process and to elect representatives of their choice.”
Whitford v. Gill stands to add another stipulation which could change the course of redistricting indefinitely.
There is a long history of cracking and stacking in the redistricting process. Some have been so distorted and disproportionate that they put the Gerrymander to shame. And, despite rhetoric on both sides, this is a bipartisan dilemma. California’s Districts 2 and 21, Texas’s Districts 15 and 35, Ohio’s Districts 4 and 6 are all prime examples of how Republicans and Democrats can use redistricting for political gain. But this makes it no less of an obstruction to freedom.
Though the Gerrymander does not prevent the vote of citizens, it certainly does constrain it. If career politicians are legally obliged to tilt the political landscape in their favor by means far beyond the voter’s grasp, is representative government a fact or fallacy? If the end of elections is the beginning of tyranny, what is the illusion of equitable apportionment? Perhaps Madison’s warning of party politics in Federalist No. 10 coupled with the doctrine of elections in No. 52 could help to shape the ruling when the Supreme Court comes to a vote. And perhaps America will experience a new form of free elections and equal apportionment. So let us hope that whatever our Justices decide, it will effectively reshape the outlines of the United States Republic for the better.