That was attorney Paul M. Smith, telling the Supreme Court this week that the justices had to deal with a growing menace to democracy: highly sophisticated gerrymandering by both parties that is seriously aggravating the poisonous partisanship afflicting the capital.
Smith is right. Normally judges are – and should be – very reluctant to adjudicate political disputes. But politicians keep showing that they are entirely incapable of reforming a system that keeps them in power, and the stakes are very high. “What is really behind all of this?” asked Justice Ruth Bader Ginsburg during the court’s argument. “The precious right to vote.”
We would add: the right to have a government that focuses on solving problems and serving people and doesn’t spend its entire time playing political games and seeking partisan advantage.
The tribal feud on Capitol Hill is getting worse, not better. Apart from the most basic tasks -- keeping the government running, raising the debt limit, providing aid for storm-ravaged states -- Congress is increasingly paralyzed and dysfunctional. The legislature’s approval rating is 16 percent in the latest Gallup poll, a dismal and accurate judgment.
There are many reasons for this dysfunction and no magic formula will completely reverse the trend. But changing how congressional districts are drawn is one reform that could make a real difference.
Today, incumbents use highly efficient computer programs to tailor districts that solidify their power while undercutting their opponents’. In the case argued before the court this week, Wisconsin Republicans used a shrewdly distorted map to capture 60 of 99 legislative seats in 2012, while winning only 48.6 percent of the statewide vote.
This is not just an abstract debate about fairness. Legislators are using their power to destroy a basic principle of democracy: accountability to the voters. If they represent totally safe districts, they have little incentive to cooperate with rivals or listen to dissenters.
The House of Representatives proudly calls itself “The People’s House,” but it’s become “The Politician’s House” – an American version of the House of Lords, untroubled by messy matters like voters and elections.
Rep. Brian Fitzpatrick, a Pennsylvania Republican who joined a court brief opposing the Wisconsin map, told the New York Times: “You have 435 districts in the nation, and there’s probably only 20 or so that are legitimate swing districts. For the 415 safe seats, their main election is in the primary, not the general. When the main election is in the primary, you legislate accordingly. The result has been a growing cavernous divide, which has created a Hatfield v. McCoy environment in the legislature, and it’s hurting the American people.”
Gerrymandering is only partly to blame for this “cavernous divide.” Outside interest groups pour millions into political campaigns and demand purity on their issues. The outrage industry, a network of right-wing radio hosts, websites and pressure groups, threatens reprisals against any lawmaker who actually talks to a Democrat. Liberals have their own, if less powerful, version of Orthodoxy Inc.
Then there’s the “big sort”: voters moving to communities populated by like-minded people. Democrats performed poorly in Wisconsin in part because so many of their supporters crammed into urban areas or college towns, “wasting” their votes.
Still, gerrymandering is real and dangerous. Republicans who want the court to avoid the issue insist that the Senate, where candidates run statewide, is just as polarized as the House, but that’s just not true. In 2013, the Senate passed a comprehensive immigration reform bill with 14 Republican votes, but GOP leaders in the House refused even to bring it to the floor.
Right now, there’s a bipartisan push in the Senate to craft a bill shoring up the insurance markets created by Obamacare. Many Republican governors, also elected statewide, support the effort, but House Republican leaders are dismissing the whole enterprise.
Justice Ginsburg is correct that the court has an obligation to tackle gerrymandering, because the “precious right to vote” is at stake. Chief Justice John Roberts says the court could be damaged by accepting this challenge, but it could also be damaged by avoiding it.
The key to the outcome rests with Justice Anthony Kennedy. He’s shared Ginsburg’s concerns about democracy’s peril, but doubted whether courts could devise a “workable standard” that draws a distinct line between the legitimate and corrupt use of political power.
Now, the justices have to draw that line and define that standard. They’re the only ones who can do it.
Steve and Cokie Roberts can be contacted by email at email@example.com.