Competitiveness and the Voting Rights Act

[Note: this article was co-written with retired attorney Jay Simpson.]

Redistricting is in the news.

While it can be an obscure topic, mostly of interest to a modest number of nerds (us included), it has become national news every day. More people now see how it can fundamentally affect our democracy.

As established in the U.S. Constitution, after the national decennial Census, the U.S. House of Representative seats in each state are apportioned based on relative population. Each state then determines the boundaries for the number of districts that they then have; this is called redistricting. Traditionally, apportionment and redistricting occur once a decade using the new census data. 

However, because of a push by Trump, a cascade of red states has pushed for early, mid-decade redistricting; this was followed by reaction in California and Virginia (though the latter was overturned by their state Supreme Court). And last week’s extreme decision by the U.S. Supreme Court gutting the Voting Rights Act (VRA) has sparked rapid action to do even more.

Competitive districts promote democracy

One aspect of redistricting that is particularly critical is what is commonly called competitiveness, which refers to having expectations of close races where either party could prevail. Out of the 435 House districts, for instance, onlya few dozen are remotely competitive. That is, in nearly all of these districts, we already know which party will win in November. This has gotten much more pronounced in recent years.

This is terrible for our democracy. If you live in one of the many non-competitive districts, you may be far less motivated to be active politically, or even to vote. You know in advance which party will win. And the elected politicians are less likely to care what partisans on the other side want (or need) – all you need to do to stay in office is please the most active members of the voters on your side of the partisan divide. There is less incentive for members to find legislative solutions to pressing problems through compromise, and more incentive to engage in demagoguery. The creation of competitive districts should, over time, increase the quality of candidates seeking to represent us. And, once elected, legislators in competitive districts are far more likely to be engaged with and listen to the concerns of their voters. Finally, legislators serving in competitive districts are more likely to want to have a record of legislative success that they can present to voters to win another term.  

But increasing the number of competitive districts is hard, especially in states without independent redistricting commissions. The trend is really in the opposite direction – we are currently engaged in a strongly motivated, internal “cold war”, where each party will take drastic steps to maximize its number of seats. The end result of fewer competitive seats is likely to be greater polarization and less incentive to seek compromise solutions to issues that are important to voters. This, in turn, can cause voters to lose confidence in the government’s ability to solve problems.

And now the VRA has been gutted

As bad as all of this is, while eviscerating the VRA is going to have terrible effects, there also could be some unintended positive consequences. How could this be?

First, a reminder: after a century of voter suppression for minorities, the Voting Rights Act protected the right of those groups to have representation in Congress. It is an important characteristic of liberal democracies that minorities are protected from complete domination by the majority. For instance, the First Amendment protected freedoms of speech and press, establishing the right for ideas to be presented to the public even if the majority (or more specifically, the government) opposed them. The Voting Rights Act augmented the 13th through 15th Amendments to the Constitution, added after the end of the Civil War, by ensuring that everyone could have representation in the Federal government. And indeed, with the brief exception of Reconstruction, African-American representation in Congress was virtually nonexistent until after the VRA’s passage in 1965.

Led by Chief Justice Roberts, the Supreme Court chipped away at the VRA in 2013 and 2019, and finally made it inoperable this year. It is widely expected that this will significantly reduce African American representation in Congress, particularly in the South. And since that group currently has many strong Democratic partisans, this will bias the House strongly towards the opposing party.

Could there be any silver lining at all?

What good could possibly come from such a throwback to the awful days of Jim Crow? 

It might be small solace, but it is likely that drawing boundaries to “crack” areas with large minority populations will make surrounding districts more competitive. In a wave year for Democrats, some formerly Republican districts could swing left; a general expression for a gerrymander with such unexpected benefits for the opposition party is called a “dummymander.” And even if districts didn’t swing to the opposition party, they would become more competitive, which could engage more citizens in the democratic process, increase candidate quality, result in legislators who are more engaged with their constituents and more likely to do the hard work of governing by seeking compromise solutions.

Partisan gerrymanders by the G.O.P. should be motivating for Democrats – Republicans are trying to game the system. To be blunt, they are cheating. They want a system where they get to choose their voters through gerrymandering. They want safe seats where the hard work of governing is not necessary to get re-elected. In their world, success as a legislator is apparently not judged by solving problems through passing legislation with the compromises necessary to effectively govern. 

Ineffective representation by legislators elected in safe seats should enrage and engage us. It undermines the public’s confidence in the government to function, which in turn opens the door to autocracy. Only active, massive participation of the people can simultaneously save our democracy and save fairness for all.

Time to wake up.