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The Path to Justice: Resolving Gerrymandering’s Threat to Fair Representation

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By Daniela Belinschi

Edited by Andrzej Drzewieniecki & Andrada Bozianu

As elections represent an essential tool of a functioning democracy, electoral legislation plays a determining role in ensuring fairness. The inconsistencies in some systems, deliberate or not, led to manipulative practices that undermine representation. Gerrymandering is a common example of how electoral outcomes are distorted through the devious drawing of electoral districts, highlighting the urgent need for comprehensive reform to protect the integrity of democratic processes.


Twisted Districts, Twisted Democracy

The inherent connection between elections and democracy is undeniable. Visualise these concepts portrayed as overlapping circles within a Venn diagram. Their intersection unveils a fundamental principle - representation - a compromise between democracy in its Athenian facture and the imperatives of a modern society.

The distortion of this principle as one of the guarantees of the fairness of elections shakes the very essence of democracy. Gerrymandering undermines the legitimacy of government institutions and erodes public trust by prioritising political self-interest over the genuine will of citizens.

Gerrymandering remains a persistent issue in states such as Australia, India, and South Africa. In the United States, the birth country of this practice, it has repeatedly demonstrated its impact on the political composition of Congress.

The absence of comprehensive legislation on the shape of the electoral district is to blame. Political parties strategically manipulate district boundaries, often aiming at putting their opponents at a disadvantage.

Typically, it involves "packing" the opposition-friendly population into large districts, which limits the number of seats they can gain state-wide. Alternatively, the remaining population is incorporated into districts dominated by incumbent-friendly majorities. As a result, there is unequal representation in terms of both geographical area and population.

These practices misrepresent preferences and increase wasted votes, especially under the first-past-the-post system. Therewith, certain groups are left unrepresented, undermining democracy's integrity and failing to reflect community preferences accurately.

Fighting Gerrymandering: What Should Be Done

In 2019, the US Supreme Court issued a ruling that gave state legislatures the authority to determine how electoral districts are drawn, leading to an increase in legal challenges against the undemocratic practice of gerrymandering. So far, the only successful outcomes in these challenges have been in cases involving racial discrimination.

The US Constitution grants state legislatures the authority to decide on the "Times, Places, and Manner of holding elections." However, the same Section 4 of Article I also states that "Congress may at any time by Law make or alter such regulations." This provides a legal framework for addressing gerrymandering through congressional action.

Republicans are often associated with using gerrymandering tactics more than Democrats. This makes it unlikely for a bill against gerrymandering to originate in the Republican-controlled House of Representatives.

The bill would need to be passed by the Democrat-controlled Senate, but there are significant hurdles due to the perfect bicameralism system. It would also require approval from the House, which is unlikely given the current seat distribution.

With the Democrats prevailing in both chambers and receiving the president's unwavering support in the upcoming elections, there exists a distinct possibility that the envisioned scenario could indeed become a reality.

The introduction of independent commissions and clear guidelines for district boundary drawing is to be considered, yet one must be wary of state legislators acting in their self-interest.

The involvement of supposedly independent State Supreme Courts is a plausible solution. Still, the example of the North Carolina Supreme Court presents a disturbing dilemma.

The Court overturned its past ruling, which declared a GOP-drawn congressional map (that could have given Republicans control of 11 of the state’s 14 districts) as “unconstitutional beyond a reasonable doubt”.

While a state court ruling is surely a simpler solution than involving the legislature, both from the perspective of time and legal procedure, the integrity and independence of the court must be ensured.

Currently, the Wisconsin Supreme Court is expected to rule on a similar issue, which could be a significant moment, particularly as Wisconsin is a swing state. A redrawing of districts in Wisconsin would have a lasting impact on the political landscape for years to come.

A Crucial Battle for the Future of American Democracy

Gerrymandering persists as a major issue for American democracy, hindering representation, accountability, and fostering polarisation. It prioritises partisan interests over the common good and limits diverse perspectives.

It urgently needs to be addressed to prevent distortion of electoral outcomes and the underrepresentation of certain groups. In the upcoming 2024 presidential, House, and Senate elections, the stakes are high, as the balance of power could either be evenly distributed between Democrats and Republicans or heavily skewed in favour of one party.

The long-term effects of these outcomes will become evident over time, but ensuring the integrity of elections must remain a priority.

Sources: CNN, Democracy Docket, Politico, The New York Times, US Constitution

Written by Daniela Belinschi

December 2023

The opinions expressed in this publication are those of the author(s). They do not purport to reflect the opinions or views of MJPE or its Board. The designations employed in this publication and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the MJPE concerning the legal status of any country, area or territory or of its authorities, or concerning the delimitation of its frontiers.

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