The Constitution is part of the myth of American Exceptionalism and we are loathe to change it. But to thwart our trend toward authoritarianism, we must make government more responsive to the people.
Has anyone ever challenged gerrymandering as abridging the freedom of speech and right to assemble? Obviously, gerrymandering dates back to the generation that framed and ratified the original Constitution. But something significant has changed since then.
Only about 90 years ago did SCOTUS justices (finally) start supporting and defending our Constitution with respect to the freedom of speech and press and the right of the people to assemble in the First Amendment. So its very good to look at this very antiquated practice with fresh eyes. Gerrymandering based on how people vote is nothing less than discrimination against people based on their political speech (i.e., voting). See, e.g., the following:
As you say, gerrymandering in the US started almost at the beginning. The advent of computers and good data about how people vote has made it MUCH more effective in the modern era than ever before. SCOTUS has ruled that gerrymandering other than for racial discrimination is not something that the Court can deal with -- they consider it a political matter beyond their scope. Some state courts have ruled that gerrymandering deprives people of equal protection. For example, where I live, the NC Supreme Court threw out some very gerrymandered Congressional districts, which changed our representation from 10-3 (R to D) to 7-7. But the election of 2022 changed the Court to a Republican majority, which has once again allowed partisan gerrymandering.
I'm not a Constitutional scholar (or even a lawyer) but I'm skeptical that viewing gerrymandering as discrimination based on political speech will fly. The issue is whether the Constitution (federal or state) is interpreted to allow setting district boundaries based on political criteria. SCOTUS has said that the answer is "yes". As soon as we let legislators define districts, the maps become political unless we place some guardrails on what they can do. I'm a bit of a nerd and I am attracted to work by some mathematicians that show just how badly gerrymandered a district map actually is. I've written about this at https://www.winwindemocracy.org/p/2022-03-voting-part-3.
Has SCOTUS actually said "yes" that drawing boundaries based on political criteria doesn't violate our Constitution? Or have they merely (as in Alexander) not addressed the issue? As you mentioned, it seems SCOTUS simply says that WHERE to draw district lines is a political, not a judicial question. Even so, SCOTUS has determined that all kinds of discrimination, itself, based on the content of speech is unconstitutional. And SCOTUS even more emphatically has determined that viewpoint discrimination is unconstitutional. Discriminating based on political viewpoint clearly is unconstitutional viewpoint discrimination.
One tricky trick that SCOTUS plays is important to keep in mind: they get to choose what cert petitions they grant. In effect, they get to manipulate what they decide by choosing the petitions they grant. That helps them dodge issues (even huge and obvious violations of our Constitution) that an insufficient number of justices want to address.
There are a number of ways we can resolve the problems you correctly point to in our democracy with simple majorities, no constitutional amendments needed: national popular vote compact to bypass the electoral college, end the filibuster by 51 senate votes to change that senate rule, end gerrymandering by legislation, balance the senate by dividing the existing largest states into more evenly sized ones, change the process and number of judicial appointments by legislation. I would love to discuss these topics as well as some more out of the box ones with you sometime.
The filibuster is not in the Constitution but is a result of Senate rules for limiting debate. The Senate could vote to eliminate it. Indeed, the Senate voted in 2013 to eliminate the filibuster for executive and judicial appointments other than to the Supreme Court, and, in 2017, extended that to Supreme Court justices. In 2022, Senate Democrats tried but failed by two votes to eliminate the filibuster altogether.
It is reasonable to hope that if Democrats control the Senate after this election, they will eliminate the filibuster, which will certainly make it easier to pass legislation. The unequal voice in the Senate will, however, remain and continue to be significant.
I’m pessimistic about dividing highly populated states for several reasons: (1) Republicans understand that dividing states would dilute their power, both in the Senate and in the Electoral College. Splitting high population blue states like California and New York would yield many Democratic Senators and Electors. Even splitting high population red states like Texas and Florida, would result in many new Democratic Senators and Electors unless the split was done by partisan gerrymandering. I don’t see why Republicans would support this without something significant in return. (2) To have equal sized states we’d either need to have many more states or we’d have to combine some of the smaller states into fewer larger states. (3) Equal-sized states today would become unequal over time as population shifts happen.
If we want to keep the concept of states, which I think we do, we have to fix the unequal voice problem in other ways.
You could be correct, but I’m skeptical. Of course, I could also be wrong. Would be interesting to discuss here. So, I’ll give you my thoughts on each of the examples you describe.
I’ll post these as a series of comments as I have time. Here’s the first.
For those not familiar with it, National Popular Vote Interstate Compact is a way to elect the president by popular vote across the nation without having to amend the Constitution. It takes 270 electoral votes to win. So, if a group of states possessing more than 270 votes agree that they will direct their electors to vote for the candidate who wins the popular vote nationwide, we’d effectively elect the president by popular vote.
Some argue that the Constitution’s Compact Clause requires that Congress approve the compact for it to be effective, while others believe that the states’ power to appoint electors would allow them to choose to do so in accordance with the compact. It is reasonable to believe that those who want the Electoral College to remain the way to elect the president would challenge the compact once enough states approve it. Who knows how the current SCOTUS would rule.
Moreover, state legislatures could withdraw from the compact at any time. If enough states withdraw, we’d revert to the Electoral College process. This whole process be subject to all the problems I discussed with state legislatures.
Changing the Constitution would be a less fraught and more enduring way to switch to popular vote.
Has anyone ever challenged gerrymandering as abridging the freedom of speech and right to assemble? Obviously, gerrymandering dates back to the generation that framed and ratified the original Constitution. But something significant has changed since then.
Only about 90 years ago did SCOTUS justices (finally) start supporting and defending our Constitution with respect to the freedom of speech and press and the right of the people to assemble in the First Amendment. So its very good to look at this very antiquated practice with fresh eyes. Gerrymandering based on how people vote is nothing less than discrimination against people based on their political speech (i.e., voting). See, e.g., the following:
Sam's Club (SCOTUS) Says Separate-But-Equal Is Cool https://blackcollarcrime.substack.com/p/scotus-says-separate-but-equal-is?r=30ufvh
Alito's Gang Advocates and Protects "Political Apartheid" https://blackcollarcrime.substack.com/p/the-alito-gang-advocates-and-protects?r=30ufvh
As you say, gerrymandering in the US started almost at the beginning. The advent of computers and good data about how people vote has made it MUCH more effective in the modern era than ever before. SCOTUS has ruled that gerrymandering other than for racial discrimination is not something that the Court can deal with -- they consider it a political matter beyond their scope. Some state courts have ruled that gerrymandering deprives people of equal protection. For example, where I live, the NC Supreme Court threw out some very gerrymandered Congressional districts, which changed our representation from 10-3 (R to D) to 7-7. But the election of 2022 changed the Court to a Republican majority, which has once again allowed partisan gerrymandering.
I'm not a Constitutional scholar (or even a lawyer) but I'm skeptical that viewing gerrymandering as discrimination based on political speech will fly. The issue is whether the Constitution (federal or state) is interpreted to allow setting district boundaries based on political criteria. SCOTUS has said that the answer is "yes". As soon as we let legislators define districts, the maps become political unless we place some guardrails on what they can do. I'm a bit of a nerd and I am attracted to work by some mathematicians that show just how badly gerrymandered a district map actually is. I've written about this at https://www.winwindemocracy.org/p/2022-03-voting-part-3.
Has SCOTUS actually said "yes" that drawing boundaries based on political criteria doesn't violate our Constitution? Or have they merely (as in Alexander) not addressed the issue? As you mentioned, it seems SCOTUS simply says that WHERE to draw district lines is a political, not a judicial question. Even so, SCOTUS has determined that all kinds of discrimination, itself, based on the content of speech is unconstitutional. And SCOTUS even more emphatically has determined that viewpoint discrimination is unconstitutional. Discriminating based on political viewpoint clearly is unconstitutional viewpoint discrimination.
One tricky trick that SCOTUS plays is important to keep in mind: they get to choose what cert petitions they grant. In effect, they get to manipulate what they decide by choosing the petitions they grant. That helps them dodge issues (even huge and obvious violations of our Constitution) that an insufficient number of justices want to address.
There are a number of ways we can resolve the problems you correctly point to in our democracy with simple majorities, no constitutional amendments needed: national popular vote compact to bypass the electoral college, end the filibuster by 51 senate votes to change that senate rule, end gerrymandering by legislation, balance the senate by dividing the existing largest states into more evenly sized ones, change the process and number of judicial appointments by legislation. I would love to discuss these topics as well as some more out of the box ones with you sometime.
Finishing my responses to your comment …
The filibuster is not in the Constitution but is a result of Senate rules for limiting debate. The Senate could vote to eliminate it. Indeed, the Senate voted in 2013 to eliminate the filibuster for executive and judicial appointments other than to the Supreme Court, and, in 2017, extended that to Supreme Court justices. In 2022, Senate Democrats tried but failed by two votes to eliminate the filibuster altogether.
It is reasonable to hope that if Democrats control the Senate after this election, they will eliminate the filibuster, which will certainly make it easier to pass legislation. The unequal voice in the Senate will, however, remain and continue to be significant.
I’m pessimistic about dividing highly populated states for several reasons: (1) Republicans understand that dividing states would dilute their power, both in the Senate and in the Electoral College. Splitting high population blue states like California and New York would yield many Democratic Senators and Electors. Even splitting high population red states like Texas and Florida, would result in many new Democratic Senators and Electors unless the split was done by partisan gerrymandering. I don’t see why Republicans would support this without something significant in return. (2) To have equal sized states we’d either need to have many more states or we’d have to combine some of the smaller states into fewer larger states. (3) Equal-sized states today would become unequal over time as population shifts happen.
If we want to keep the concept of states, which I think we do, we have to fix the unequal voice problem in other ways.
Regarding judicial appointments, we could certainly changes some aspects of them by legislation. I written about some ideas for that at https://www.winwindemocracy.org/i/99861328/changing-the-appointment-process.
You could be correct, but I’m skeptical. Of course, I could also be wrong. Would be interesting to discuss here. So, I’ll give you my thoughts on each of the examples you describe.
I’ll post these as a series of comments as I have time. Here’s the first.
For those not familiar with it, National Popular Vote Interstate Compact is a way to elect the president by popular vote across the nation without having to amend the Constitution. It takes 270 electoral votes to win. So, if a group of states possessing more than 270 votes agree that they will direct their electors to vote for the candidate who wins the popular vote nationwide, we’d effectively elect the president by popular vote.
Some argue that the Constitution’s Compact Clause requires that Congress approve the compact for it to be effective, while others believe that the states’ power to appoint electors would allow them to choose to do so in accordance with the compact. It is reasonable to believe that those who want the Electoral College to remain the way to elect the president would challenge the compact once enough states approve it. Who knows how the current SCOTUS would rule.
Moreover, state legislatures could withdraw from the compact at any time. If enough states withdraw, we’d revert to the Electoral College process. This whole process be subject to all the problems I discussed with state legislatures.
Changing the Constitution would be a less fraught and more enduring way to switch to popular vote.