The Democrats’ Plan to End Gerrymandering is a Win for Republicans

From legal attacks on the Voting Rights Act, the widespread passage of voter ID restrictions, voter purging, felony disenfranchisement, polling closures, ADA violations, misinformation campaigns, and a move to unseat the Supreme Court of Pennsylvania — The Republicans, with or without the help of Russian interference — have launched a no holds barred war on elections and voting in the United States.

In response, the Democrats — led by the National Democratic Redistricting Committee — have launched a concentrated counter-attack on the political battlefield of partisan gerrymandering.

As Political Strategist Charles Ellison describes:

Democrats now seem aggressively focused on redistricting in a way that they weren’t in the last post-2010 Census episode less than a decade ago. Tasked by the Democratic Party leadership to spearhead a multi-state effort, former Attorney General Eric Holder established and now chairs the National Democratic Redistricting Committee…Their timeline, however, is quite ambitious. They’re trying to somehow snatch back a dozen big state legislatures in one election cycle — after losing over 1,000 in less than a decade…”

And almost inexplicably, the Democrats are trying to accomplish this goal without acknowledging or confronting race-based voter suppression. Instead, they have abandoned civil rights protections in favor of partisan politics altogether.

Not only has this decision served to insult and alienate communities of color that have been tirelessly struggling for “minority” voting rights, but it has also placed the Democratic Party in a legal battle where they have been completely out-numbered, out-smarted, and out-strategized.

In an unusual move by the Supreme Court of the United States, they have agreed to hear two cases on partisan redistricting: one Democratic and one Republican. While it appears from the outside that both parties may be in a position to curb gerrymandering, at closer look reveals that the Republican Party stands to gain a huge political advantage from both cases.

The case that the Democrats brought to the Supreme Court, Gill v Whitford, centers on Republican redistricting at the state level in Wisconsin. Lawyers argued that Congressional redistricting in Wisconsin in 2011 was done in a way that significantly benefits the Republican Party. This “cracking and packing,” it was argued, is so asymmetrical that it violates that 14th and 1st Amendment rights of Democratic voters. The test that was used to back this legal claim is known as the Efficiency Gap Test and serves as a newly developed mathematical model by which the effects of partisan gerrymandering can be assessed. And the outcome was that a federal court struck down an electoral map on the basis of partisan gerrymandering for the first time in over three decades.

This ruling was touted as a historic victory against Republican gerrymandering. Strategically, though, it played directly into the hands of the Republican Party.

The Republican strategy is a long-game strategy. So, it should come as no surprise that the foundation for the Republican redistricting strategy was set in 2004. That year, conservative Justice Anthony asserted that a 1st Amendment claim could be made and upheld in federal court if it could be shown that Congressional mapping policies resulted in “disfavored treatment” of voters based on the basis of political affiliation. Without a test to determine the presence or absence of partisan gerrymandering, though, a claim could not be brought to the federal courts.

That changed when the Democratic Party brought the case of Gill v Whitford into the courts to challenge Republican redistricting in Wisconsin. In other words, when the Democrats presented the Efficiency Gap Test to the courts themselves — they all but sealed their own fate.

Not only were the Republicans ready for the Democrats’ legal attack, they had been waiting for it for over a decade.

The creation of the Efficiency Gap Test allowed Republicans to bring their own First Amendment Claims against Democratic redistricting. And SCOTUS has agreed to hear it. This case, Benisek v Lamone, focuses on Democratic Congressional redistricting at the district level in Maryland.

Using the Efficiency Gap Test designed by the Democrats, the Republican Party argued that after the 2010 Census, Democrats redrew the boundaries of this district with specific intent to flip a state Congressional seat from red to blue. It was argued that Maryland’s 6th resembled a “crazy quilt” that produced “disfavored treatment of some voters.” Further, this disfavored treatment violated the 1st and 14th Amendment rights of Republican voters in the 6th District of Maryland.

Benisek v Lamone puts the court in the position to rule against Democratic gerrymandering in the context of a specific election — the 2012 race for Maryland’s 6th Congressional district election. Using the same standard presented by the Democrats, the Efficiency Gap Test, the Republicans were able to quantify their claims that redistricting disproportionately affected not only state elections in general, but the specific outcome of the 2012 Congressional election. And by focusing on District level mapping instead of statewide redistricting, Republican strategists are attempting to show that not only are Democrats benefitting in elections in general, but that a specific election was illegally interfered with by the Democratic Party.

Adding to the weight of the Republican argument that Democrats used redistricting to rig the 2012 Congressional election in the 6gth District of Maryland is sworn testimony by the Democratic Governor at the time, Martin O’Malley.

In a 2013 legal deposition, O’Malley admitted that it was his “intent to create … a district where the people would be more likely to elect a Democrat than a Republican.” More specifically, the lines of Maryland’s 6th District were redrawn to unseat 20-year incumbent Republican Roscoe G. Bartlett and hand his position over to Democratic candidate John Delaney.

Should SCOTUS rule that the results of the 2012 Congressional district election were rigged through Democratic gerrymandering, the Republican Party is already positioned to legally challenge both mapping and electoral outcomes in Maryland, Texas, Florida, Michigan, Virginia, North Carolina, Ohio, and Pennsylvania.

It is still unclear whether or not the Republicans will be prepared to deploy this strategy to challenge the outcomes of the 2018 Midterm Elections.

Even so, last minute redistricting and providing the narrative (however false it may be) that Democratic interference may play a stronger role in election rigging than Russia will only serve to benefit the Republican Party. The Democrats could not be facing a greater failure of political strategy moving into the 2018 Midterm Election cycle.

By completely rejecting calls from organizations of color demanding legal action be taken to re-enfranchise their communities, the Democratic Party has lost the opportunity to mobilize tens of millions of voters for the 2018 Midterm Elections. By focusing on partisan redistricting, they have placed themselves on a legal battlefield were the Republican Party has the advantage. By choosing the wrong legal argument, the Democrats have potentially succeeded in articulating a formula that can be used to test asymmetrical redistricting, and definitely succeeded in handing the Republican Party that weapon where they are now using it against them. And by choosing the wrong geographical boundaries, the Democrats may have succeeded in confronting broad Republican gerrymandering at the state level, while the Republicans chose a specific election in a specific district and may now be poised to legally challenge an untold number of Democratic Congressional seats.

Worse, the voting blocks that are the most loyal and hungry to participate remain banned from the ballots by Republican suppression efforts. If the Democrats don’t take immediate action to re-enfranchise these voters, they will not have the statistical advantage necessary to negate the results of the Efficiency Gap Test. If they continue down the path of countering redistricting on the basis of partisanship rather than race, they will be intentionally eliminating the voice and voting power of communities of color, as we see happening in Pennsylvania. And if we don’t start fighting the GOP with more strategic prowess, we may never be able to take control of the government back again.

As midterm elections draw closer and closer we cannot afford to be caught off guard. We must prepare for the worst — and we must be prepared to fight back.

To learn more about Dr. GS Potter and the Strategic Institute for Intersectional Policy (SIIP), visit: http://strategycampsite.org/v2/