The recent Supreme Court decision in Rucho v. Common Cause, which let stand partisan gerrymanders by Democrats in Maryland and Republicans in North Carolina, may put an end to the dominant approach to electoral reform in the United States. That’s not a bad thing.
For far too long, the accepted approach to electoral reform has been to concede control of our electoral system to the two major parties, while using legislatures and the courts to smooth over the excesses that came as a consequence. But political parties are private organizations with no constitutional basis and interests separate from the body politic. And while this approach to reform — continue the partisan electoral process, but create boundaries, regulations and limits — has allowed for considerable progress for individual rights in this country, it also has contributed significantly to the deterioration of democratic governance.
Consider, for example, the “white primary” line of cases. Prior to the Supreme Court’s decision in Smith v. Allwright, the political parties in several states excluded African Americans from voting in primary elections. Reformers argued that, where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a state agency and, consequently, may not under the 15th Amendment exclude African Americans. In Smith, the courts finally agreed that African Americans must be allowed to fully participate in primary elections.
A critically important outcome, clearly, but in failing to challenge the state’s entrustment of the first round of elections to the political parties in the first place, this case and others that have built upon it since have helped solidify the Supreme Court’s support for private party control over primary elections for decades.
Campaign finance reform likewise acquiesced to two-party dominance. In New York, for example, a major-party candidate gets matching funds in both the primary round and the general election. Independent and minor-party candidates receive public funding only for the general election. In Connecticut, a public finding program that favored major-party candidates was upheld by the U.S. Court of Appeals for the Second Circuit in 2010, rejecting a challenge by the Green Party.
Republicans and Democrats have used their positions to exclude independent voters from taxpayer-funded and state-administered primary elections even as the numbers of such voters have grown to exceed that of party voters themselves. The second-class status of voters who opt not to join one of the major political parties contributes heavily to the election of unrepresentative and hyper-partisan politicians and the failure to make meaningful progress on critical issues facing our country from immigration to climate change.
Jurisprudence in the area of gerrymandering rests on the constitutional principle of “one person, one vote.” This means that each congressional or legislative district must have roughly the same number of voters. And, even if that standard is met, the Supreme Court has struck down gerrymandering that seeks to minimize the voting power of African Americans and other people of color. However, on the subject of gerrymandering designed to allow the dominant party to elect a greater percentage of legislative and congressional delegations than their level of support statewide, the Supreme Court majority in Rucho held that it was a political question, not a legal one.
It’s a setback for the gerrymandering reform movement. But had the court decided differently, it would have given formal, constitutional sanction to political parties, by requiring that districts be drawn with an eye not just to representing every voter fairly, but to representing each party fairly. Such a result would have prevented extreme partisan gerrymandering, but at a cost: giving the parties unprecedented constitutional status and protection.
At a time when 40 percent of voters self-identify as independents, the granting of constitutional protection and legitimacy to the major parties as the gatekeepers of what is fair and democratic would be particularly troubling.
The gerrymandering reform movement already is pursuing the important goal of depoliticizing the redistricting process by promoting the creation of nonpartisan redistricting commissions. By wide margins, voters have supported the creation of such commissions via referendum. Nonpartisan redistricting commissions — in place in eight states — focus on the rights of voters and the goal of competitive elections, regardless of partisan affiliation or non-affiliation and regardless of partisan interests, extreme or not.
The decision in Rucho very well may be discouraging for those seeking to curb hyper-partisan gerrymandering. But changing focus to addressing party control of the electoral process in all forms will have more powerful and lasting effects.
Jeremy Gruber is senior vice president of Open Primaries. Harry Kresky practices law in New York City and is counsel to Independentvoting.org. They, along with Michael Hardy, are the authors of “Let All Voters Vote: Independents and the Expansion of Voting Rights in the United States” (Touro Law Review, 2019).