In the most recent engagement in the ongoing campaign by Democratic judges and interest groups to use the courts to effectively impose proportional representation on the American electoral system, a panel of three federal judges in North Carolina has ruled that that state’s congressional districts are unconstitutional partisan gerrymanders. The same judges had already decided that, but had to redo their opinion after the recent Supreme Court case Gill v. Whitford held that plaintiffs in redistricting cases had to show that they were individually harmed in their own electoral districts. This most recent decision paid lip service to the Gill majority ruling on the qualifications for plaintiffs (their “standing” to sue in legalese), but then reverted to its previous ruling, based on extraordinarily vague and tenuous constitutional readings, that the judges, rather than the legislature, would control how electoral districts were to be drawn for the November elections. (This despite the Constitution’s express delegation of the authority to regulate elections to Congress and state legislatures.)
Under the guise of combating gerrymandering (an unattractive practice that has existed since the beginning of the Republic), this decision is part of a multi-state drive to reverse Republican gains in state legislatures since 2010. This year has seen similar cases in Wisconsin (Gill) and Pennsylvania. But this drive goes beyond who gets to gerrymander, a practice enthusiastically pursued by Democrats whenever they have had the power to do so. The essence of the campaign is to fundamentally alter our government by judicially imposing the standards of proportional representation on our Anglo-American first-past-the-post electoral system.
Perhaps the most fundamental question in any representative democracy is how you select the representatives. There are basically two methods, both widely used. In our American system, inherited from Britain, the winner of the most votes in each district becomes that district’s representative. The district’s boundaries may be drawn to advantage one party, but any way one draws the lines, someone is going to feel disadvantaged. All that one can practically expect is that the districts have equal populations, are in some way contiguous, and are not manipulated to disadvantage a racial minority. The other system is proportional representation, used in many continental European countries and elsewhere. Under this system, legislative seats are allocated proportionately based on political parties’ overall vote across all districts.
The two systems are both used in nations we would consider democratic. However — and this is the key point — they are not compatible. They can yield widely different results given the same raw vote totals. For example, assume an election where Party A carries all of the electoral districts by a narrow margin, say 51 percent, and Party B loses all of the districts by a corresponding narrow margin. In first-past-the-post, Party A would receive all of the seats, and Party B would receive none. Under proportional representation, on the other hand, Party B would receive about 49 percent of the seats. To some it might seem “fair” that the minority party receives seats. However, in this example, it would also mean that a party that was rejected by majorities of the voters in all the districts would nonetheless be granted substantial political power.
These differences can have a very direct impact on who represents you. Say your community likes Jane Jones, and a majority of people in your area (and even with gerrymandering, each district is going to be located within one part of the state) vote for her. Under first-past-the-post, that is the final result; Jane Jones is your representative regardless of how people in other parts of the state vote. However, under proportional representation, Jones still might not get into the legislature if her party does not get many votes elsewhere in the state. Who represents you and your neighbors could easily be decided by a strong showing far from your community by another party that you oppose.
So, how does this relate to North Carolina? Judge James Wynn’s 300-page opinion argues that the plaintiffs have a local district-based standing to sue, as required by Gill. However, it is a huge step from saying you have a right to sue to actually winning the lawsuit. To show that the North Carolina legislature’s gerrymandering was “invidious” (a legally meaningless word that Judge Wynn uses constantly throughout the opinion), he relies entirely on statewide data. This largely comes in the form of analyses by several experts, quotations from whom constitute as much as a third of the opinion. Boiled down to their essence, all these analyses show is that there are other ways to draw the districts so that Democrats would win more of North Carolina’s 13 seats in the U.S. House of Representatives (now divided 10 Republican, 3 Democratic). On what legally neutral grounds do we adjudge this to be so bad that the courts have to usurp the people’s elected representatives’ authority under the Constitution to draw the electoral districts? In all cases, the proof comes down to the fact that the number of Democratic members of Congress elected from North Carolina was less than the Democrats’ proportional share of the aggregate statewide vote.
In other words, the Democratic plaintiffs’ entire case rests on the fact that North Carolina’s Anglo-American first-past-the-post electoral system did not produce the same results as would have come from a system of proportional representation. However, that is not a defect of first-past-the-post; that is a fundamental feature. In first-past-the-post, the local prevails over the aggregate. Ruling that a legislature must come up with district lines that approach the proportionate results of the statewide party votes, not only indirectly but effectively, imposes proportional representation, but also deprives the state of the principal advantages of our first-past-the-post electoral system.
Now, Judge Wynn’s opinion does not make this explicit. The Supreme Court stated in the 2006 case LULAC v. Perry that the Constitution does not mandate proportional representation. Therefore, Judge Wynn dodges the question, acknowledging LULAC but then avoiding a discussion of it, trying to get away with dealing with proportional representation only in a footnote. He tries to bury the fundamental issue in a hundred pages of purplish prose denouncing the perfidy of gerrymandering. He does assert other damages, such as the burdening of a purported First Amendment right to be in a political party as strong as one could wish, and a vague Article I right to elect whoever one wants. However, nothing a legislature does in drawing electoral districts stops anyone from being politically involved or voting. In competitive politics, someone is going to lose. The gravamen of plaintiffs’ complaints is really that Democrats lost elections. These are legally vapid arguments, needed to disguise the real complaint, which is the disproportion of the aggregate statewide results to Democratic election wins.
One perhaps should not focus all of the blame on Judge Wynn, although his partisan bias is fairly clear. (He was twice defeated in elections to get on the North Carolina Supreme Court, and finally appointed to the federal bench by Barack Obama in 2009.) Although he was unchecked by the other two judges, 86-year-old Jimmy Carter appointee Earl Britt and the lukewarm Judge William Osteen (while a George W. Bush appointee, he is not known as either a constitutional originalist or a Republican loyal enough to balance Judge Wynn’s partisanship), Judge Wynn’s real opening was provided by the Supreme Court. Ever since the 2004 case of Vieth v. Jubilirer, in which Justice Kennedy couldn’t make up his mind which of his two sets of four colleagues to join, constitutional jurisprudence in this area has been a shambles. Judge Wynn and other Democrats have simply taken advantage of their opportunities to sow electoral havoc and use subterfuge to try to impose proportional representation through judicial fiat. Justice Elena Kagan encouraged this in a minority concurrence in Gill, which Judge Wynn quoted so extensively one would have thought it was the majority opinion.
In requiring local effects to determine standing in these cases, Gill only went halfway. The Court needs to clearly state that statewide effects are inadmissible in gerrymandering cases, because they are irrelevant to our first-past-the-post electoral system. Perhaps with Justice Kennedy’s replacement by Judge Brett Kavanaugh, that will now be possible. In the meantime, opponents of partisan gerrymandering, among whom I include myself, should direct our attention to the proper avenues for such a massive change in our political system. This is the democratic process, not judicial imperialism.