Breaching Gerrymandering’s Defenses: An Attack Strategy

 

There have been many assessments on the dangers and damage that Partisan Gerrymandering does to a Democracy. In the US the principal front of the attack against Gerrymandering is centered on its diminution of one voter group’s rights (political influence) to the enhancement of another voter group’s control/influence over governmental officials and institutions. Most Americans disapprove of the corruptive and abusive consequences that Partisan Gerrymandering produces. Yet, Partisan Gerrymandering has proven to be extremely resistant to being reigned in or eliminated. Partly, this is due to its long history and court rulings that no law has been broken, no rights have been infringed, or that there is insufficient proof that provides a basis upon which the court, including the Supreme Court, could rule.

From a general assessment of the gerrymandering issue, it seems the bulk of efforts fall into grassroots efforts. There are the occasional lawsuit-based attempts to challenge the Redistricting maps which are created under the Constitutional requirement to fulfill the equal representation. On the political side, the grassroot efforts are educational, organizational and influence building oriented at getting the public to support and elect politicians that will implement anti-partisan gerrymandering or rely upon independent Redistricting processes or agencies. There are also research efforts that study and assess the degree to which Partisan Gerrymandering is being used by many states. This research has been used in support of some of the Partisan Gerrymandering lawsuits, but there has been a reluctance in the courts to accepting these assessments as “proof” of any law or right being violated. Justices have even indicated that the analysis and assessments are based of very complex and difficult to understand methodologies.

Partisan Gerrymandering is still present and deemed beyond SCOTUS’ ability to intervene due to several deficiencies in the Justices not having “Any standard for resolving partisan gerrymandering claims” that provide a “limited and precise rationale” and be “clear, manageable, and politically neutral.” Given this 2019 decision, Partisan Gerrymandering will remain viable and in all likelihood will be dominant in the 2020 Census Redistricting efforts taking place.

These reasons may have been true at that moment of the Justices’ decision in 2019 but are no longer accurate today. What changed? Well, the Majority Opinion that Chief Justice Roberts wrote. He provided, perhaps inadvertently, a roadmap for prosecuting a case against Partisan Gerrymandering that only lacks the effort to assemble, file and prosecute. Fortunately for the Court, the Roberts’ roadmap provides them with the entire basis for over-ruling their 2019 decision insofar as the Majority Opinion provided the reasoning that the Justices needed to have ruled otherwise. The Court would merely only be following and respecting their own logic and legal interpretations.

Thus the next steps includes that some decisions must be made. The many groups and organizations that are engaged in the local grassroots efforts will need to decide how they will proceed. Those national entities that support those state-level efforts will also have to decide how they will support any attempts to eliminate Partisan Gerrymandering and preserve and protect our citizens’ right to “equal treatment under the law.”

Should a decision be made to pursue a new Partisan Gerrymandering lawsuit, or lawsuits, some initial steps that need to be taken would include:

·         Assemble the basis for the case, which requires a group of citizens in a state(s) that will claim their rights and interests have been violated and infringed by the Gerrymandering in their respective state.

·         Obtain the relevant data and information that will be necessary to use Chief Justice Roberts’ roadmap to overturn the 2019 decision.

·         Formulate a messaging & communications framework that provides:

o   an engaging case for the public (why it matters beyond our American principles & values),

o   the “standard(s)” that SCOTUS needs to resolve claims,

o   the “limited and precise rationale”,

o   a “clear, manageable” means to resolve the rights violations/infringements,

o   a resolution which is “political neutral”,

o   and a coordinated effort to enable the grassroots groups to energize their communities.

·         Define the legal approaches to be incorporated in each or individual cases.

The alternative to pursuing new Partisan Gerrymandering lawsuits is to continue with the grassroots work until those efforts can garner sufficient public support to affect a legislative change. I have no way to accurately judge the timeline for such grassroot efforts, but I would put any realistic estimate in terms of years. This would have almost no chance to have much if any impact on any state’s elections for the near term. The chance of new lawsuits progressing to the Supreme Court is more likely to have some potential for a 2024 election cycle, but I have no view of any prospects for the 2022 Mid-Terms.

This is a step-up moment for those seeking to correct the abuses of Partisan Gerrymandering.