By Edward Fitzpatrick
The First Amendment has been pressed into action to protect everything from burning the American flag to unleashing corporate cash in campaigns.
But now the U.S. Supreme Court is being asked to employ the First Amendment to do something we can all feel good about — putting an end to extreme partisan gerrymandering.
Granted, many incumbent politicians might find reason to frown upon that prospect. But voters in both parties ought to embrace the idea because politicians shouldn’t choose their voters — voters should choose their politicians.
In the case of Gill v. Whitford, the U.S. Supreme Court is weighing whether Wisconsin’s state legislative districts were unconstitutionally gerrymandered in favor of Republicans. At the same time, the high court plans to hear a case, Benisek v. Lamone, that claims Maryland congressional maps were unconstitutionally drawn to favor Democrats.
Gerrymandering legal challenges usually focus on the 14th Amendment. The argument is that drawing political boundaries to dilute one party’s electoral influence deprives that party of the equal protection of the laws. It’s the idea of “one person, one vote.”
But Supreme Court Justice Anthony M. Kennedy — who appears to be the swing vote in this case, as in so many others — suggested another approach during October’s oral arguments in the Wisconsin case. “Suppose the Court . . . decided that this is a First Amendment issue?” Kennedy asked Wisconsin’s solicitor general.
Well, hey now.
The lawyers pressing the Wisconsin case noted that Kennedy had pretty much summed up that argument in a 2004 gerrymandering case:
“First Amendment concerns arise where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views,” Kennedy wrote. “In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights.”
Those lawyers also noted that just last year, in a trademark case (Matal v. Tam) involving a band called “The Slants,” Kennedy wrote that a “fundamental principle of the First Amendment” is that the government may not “punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys.”
But hold on.
As Roger Williams University political science professor June Speakman notes, partisan gerrymandering has been around since the founding of the republic, and the term gerrymander dates back to the 1812 partisan redistricting engineered by Massachusetts Gov. Elbridge Gerry. In the past, courts have often decided that these are political questions best resolved on Election Day.
“This year, however, things are different,” Speakman wrote. “The technology of voter identification and map-drawing has taken gerrymandering to a new level. Political consultants, data miners and map designers work to hand-pick voters house by house and place them in districts that benefit the party in power.”
Political scientists and mathematicians now use new methods to analyze gerrymanders, looking at “efficiency gaps” and “wasted votes,” Speakman noted. And they’ve determined that in at least six states (Maryland, North Carolina, Ohio, Pennsylvania, Virginia and Wisconsin), gerrymandering is so extreme that the minority party stands virtually no chance of increasing its share of seats in the state legislature or the U.S. House regardless of how many voters support that party statewide, she said. In Ohio, for example, Republicans won 52 percent of the U.S. House vote in 2012, but they ended up winning 12 seats, to the Democrats’ four.
John M. Marion, executive director of Common Cause Rhode Island, said legal briefs submitted in the Wisconsin case show that both Republicans and Democrats are guilty of extreme partisan gerrymandering.
“And Rhode Island was singled out as an example of an extreme Democratic gerrymander in the state legislature,” he said. “It was done using the ‘efficiency gap,’ which measures the number of ‘wasted votes’ that are created by gerrymandering — votes thrown away because the voter can’t move the outcome because of gerrymandering.”
Marion said Common Cause has proposed an amendment to the Rhode Island Constitution that would take redistricting out of the hands of the General Assembly and put it in the hands of a citizens redistricting commission.
But the Supreme Court may act first.
One of the more notable arguments in the Wisconsin case comes from a group of legal scholars and practitioners who filed a brief in the name of the late Norman Dorsen, a New York University law professor and American Civil Liberties Union president.
Surely, they said, the opportunity to vote for a candidate with a chance of winning deserves as much First Amendment protection as “nude dancing, flag burning, cross burning, unlimited campaign spending, hate-mongering, lying, selling violent video games to children, depicting the violent death of small animals, advertising toothpaste, threatening an ex-spouse on the internet and trademarking racist epithets.”
They don’t disagree with the high court’s protection of First Amendment freedoms in those areas, they said. “It is, however, time to deploy the court’s abundant First Amendment energy to protect the right to participate in a genuinely contestable election.”
Edward Fitzpatrick is director of media and public relations at Roger Williams University and a member of NEFAC’s Board of Directors. This post originally appeared on the university’s First Amendment blog.
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