The Supreme Court’s recent ruling that they won’t intervene to stop partisan gerrymandering sadly has me thinking hard on not only very tragic part of American history, but also how a similar system has been abused by rightwing nationalist across the globe to preserve their power in other countries with a similar Bristish common law legal tradition.
Many people to choose to ignore that America operated throughout most of it’s history with large sections of the country not under democratic rule, but rather with a brutal racial republic with only the veneer of democracy. I can’t remember who first said this, but they described the US of the pre-1960’s as two parts Democracy wedded to one part Latin American banana republic. Leaving aside the obvious slight to Latin America, they were pointing to the fact that first during slavery and then Jim Crow, that the South by denying blacks the right to vote wasn’t a Democracy. The American political system operated with 1/3 of the country not operating under a democratic system for almost 200 years. Yet most people will still say the birth of American democracy started in 1776 not 1968.
Restricting the political power of large portions of the US population is how America has operated throughout most of it’s history, with large sections of the country not under democratic rules. Many people don’t realize that after the American Civil War 6 states had majority black populations, and only became majority white because of the Great Migration. In Mississippi, blacks decreased from about 56% of the population in 1910 to about 37% by 1970,[cencus] remaining the majority only in some Delta counties. In Georgia, blacks decreased from about 45% of the population in 1910 to about 26% by 1970. In South Carolina, blacks decreased from about 55% of the population in 1910 to about 30% by 1970.[cencus]
I mention these stats because I strongly believe these fact are not often mentioned because it undermines too American myths. First that these states were democracies that “just excluded minorities” from voting, when the opposite was true. Second that the confederate celebrations are just “Southerners celebrate their heritage when most white Southerners didn’t own slaves”, when in fact the majority of people in those states at the time of the Civil War were definitely NOT celebrating their Confederate Heritage (but the later argument is one for another day).
Back to my main point, the “modern” nationalistic alt-right is far more a world wide phenom that many people give it credit for. From How Hate Groups are Hijacking Medieval Symbols, to Steve Bannon traveling overseas to train the global alt-right, to rightwing terrorist Dylon Roof’s the Charleston shooter wearing old flags, from Rhodesia and South Africa. The last fact the fetishing of the white minority governments of South Africa and Rhodesia (Zimbabwe) I will argue is far more relevant than many people on the left and center realize. This point I think is particular relevant because of what we saw with the recent uncovering of the true reason for adding a citizenship question that could cause the census to miss millions of people. The citizenship question was dreamed up by Thomas B. Hofeller a deceased G.O.P. strategist’s who’s hard drives revealed that the true intention of the citizenship question was to help dilute the power of Latinos in Texas, and over represent the power of non-Hispanic white, thus helping to ensure the GOP maintained it’s grip on power. The idea that conservatives in order to retain power, need to restrict the power of people of color is widespread. It’s just bubbling just below the surface of everything they do an say. Unfortunately the “polite” people who populate the American pundit class won’t discuss it.
Just a little over seven years ago the Supreme Court considered a challenge to the Voting Rights Act, Justice Antonin Scalia didn’t use a dog whistle.
The 2006 unanimous (98-0) renewal of the landmark civil-rights bill was “attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement,” Scalia lectured then–Solicitor General Donald B. Verrilli. “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
Scalia’s logic was clear: The 1965 law, which guaranteed black Americans’ right to the franchise in the South for the first time since reconstruction, was a “racial entitlement” that Congress itself would never remove, and so the high court was duty-bound to remove it. When Chief Justice John Roberts issued his ruling invalidating the law’s provisions determining which jurisdictions with histories of racial discrimination must submit to oversight by the federal government, however, Scalia’s rationale was absent from the decision. Also absent was any mention of what part of the Constitution the invalidated provision violated.
Roberts didn’t call the Voting Rights Act a “racial entitlement.” rather, he claimed that while he agreed with the law’s intention that “any discrimination in voting is too much,”. He said close federal oversight of local election laws to prevent discrimination was no longer warranted. “Things have changed dramatically,” Roberts concluded. Shortly thereafter, Republican-controlled states moved as quickly as possible to impose restrictions on voting targeted at minority communities, as if determined to make Roberts look a fool or a liar.
To that point on Thursday June 27th 2019 the Supreme Court delivered a huge win to the Republican Party. In a pair of cases out of North Carolina and Maryland raising the question of whether extreme partisan political gerrymanders violates the Constitution. The five Justice conservative majority stated the federal courts will have no role to play in overseeing whether political lines were drawn for the gain of the majority in violation of the Constitution. As Chief Justice John Roberts wrote in his majority opinion:
We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. “[J]udicial action must be governed by standard, by rule,” and must be “principled, rational, and based upon reasoned distinctions” found in the Constitution or laws [as a plurality of the court found in the 2004 case Vieth v. Jubelirer]. Judicial review of partisan gerrymandering does not meet those basic requirements.
How much of a partisan gerrymander is too much? How can we know? Which tool could we use? First, though, he explains that the Framers had no problem with partisan gerrymanders:
The Founders certainly did not think proportional representation was required. For more than 50 years after ratification of the Constitution, many States elected their congressional representatives through at-large or “general ticket” elections. Such States typically sent single-party delegations to Congress. That meant that a party could garner nearly half of the vote statewide and wind up without any seats in the congressional delegation. The Whigs in Alabama suffered that fate in 1840: “their party garnered 43 percent of the statewide vote, yet did not receive a single seat.”
Then, Roberts uses the fact that there are multiple proffered measures of an unconstitutional gerrymander to argue, effectively, “how is a sane jurist to choose?” The high court has been seeking a justiciable legal standard to determine an unconstitutional political gerrymander for decades. Until he retired it was Anthony Kennedy’s white whale. So, Roberts’ opinion is quick to dismiss all of the myriad empirical tests for an impermissible gerrymander that have been produced in the decades since:
Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is “fair” in this context would be an “unmoored determination” of the sort characteristic of a political question beyond the competence of the federal courts.
To be sure, the image conscious Chief Justice knows how his refusal to act looks to the millions of voters whose votes are being gerrymandered away by the political majority who draw lines: “Excessive partisanship in districting leads to results that reasonably seem unjust,” he concedes. “But the fact that such gerrymandering is ‘incompatible with democratic principles,’ does not mean that the solution lies with the federal judiciary.” The solution, he would suggest, lies in state courts, constitutional amendments, state redistricting commissions (which Roberts had deemed unconstitutional in the past), Congress, and state legislatures, which is basically asking people who spend years seeking power, to self regulate out of it.
Chief Justice John Roberts ended with “No one can accuse this Court of having a crabbed view of the reach of its competence.” We have in recent terms witnessed the court’s view of its competence to dismantle the administrative state, to curb union power, to overturn prior precedent, and to gut the Voting Rights Act. But its competence to change stops at the door of political gerrymandering.
In her dissent, Justice Elena Kagan calls out this shoulder shrugging helplessness in her very first line: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.” She adds that the doctrine here clouds the issue that:
The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.
Before laying out the specifics of the Maryland and North Carolina gerrymanders, Justice Kagan asks in her dissent to consider: “As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?” Then she takes us through exactly how and why the gerrymandered abuse was made.
Voting is the core democratic principle that is being eroded in every way, from voter suppression, to voter disenfranchisement, to phony claims of vote fraud. Conservative minorities elected Presidents and Senators from low population states, who seat Supreme Court Justices who protect Congressional districts that cement conservative minority rule. As Kagan puts it:
The ‘power, James Madison wrote, ‘is in the people over the Government, and not in the Government over the people.’ Free and fair and periodic elections are the key to that vision. The people get to choose their representatives. And then they get to decide, at regular intervals, whether to keep them.
Now to be fair, the loser of the popular vote winning an election is not uncommon in democracies around the world. Whether in the United States Presidential elections in 2016 and 2000, the UK’s general election in 1974. Even automatic ranked preferential voting didn’t stop in Australia in 1998. But in each of these elections was close and in every case the losing party eventually returned to power, with 2020 of course being an open question. But none of these “popular-vote-loser-winning” elections were a threat to their country’s democratic system.
But there is one case in particular, that stand out in my mind because it was in fact a threat to that countries democracy. In the case I have in mind, the very bias of the electoral system became so entrenched that it eventually destroyed the legitimacy of the democratic system in the minds of its voters. That case is Apartheid South Africa, where a racially discriminatory system was introduced despite the repeated demonstrated opposition of a majority of the white electorate. This eventually led to political opponents to opt out of the system entirely.
In spite of racist practices, which limited political power to white voters (as well as a limited number of mixed race ones between 1936 and 1958) the defenders of South Africa took great pride in arguing that their nation possessed a highly democratic system that was representative of its voters. Apartheid defenders (including cold war backers in the US) claimed the South African system was the “freest in Africa”. In fact if you looked on paper it was.
The South African constitution shared remarkably similarities to other British Commonwealth nations like Australia and Canada. But in practice, the election results that brought in Apartheid indicated that the system did an extremely poor job of representing the opinion even of its white voters. This fact becomes apparent by a simple examination of the results of the most important election to take place in South Africa prior to 1994, namely the 1948 elections that saw the National Party defeat the ruling United Party on a platform of imposing “Apartheid”.
By 1948, South African politics had been for four decades dominated by veterans of the Anglo-Boer wars."Boer" (meaning farmer) is the common term for Afrikaans-speaking white South Africans descended from the Dutch East India Company's original settlers at the Cape of Good Hope. Three defeated Afrikaner generals served as Prime Minister, namely Louis Botha, Jan Smuts, and JBM Hertzog. Botha and Smuts formed the South Africa party which was an alliance between moderate Afrikaners and English voters. Opposed to it was the National party headed by Hertzog which appealed more to poorer Afrikaners and some poorer English voters.
During the Great Depression, the two parties formed a coalition, which survived until the outbreak of war in 1939, which South Africa entered by a cabinet vote decided by a margin of one. The hard Afrikaner core of the National Party broke off from the ruling “United Party”. Highly tribal (it did not field a single English candidate in 1948) it was considered to have little chance of winning in 1948 against the government which had just won the war.
The South African United Party, like most other Western governing parties that ruled during World War II, face severe electoral headwinds, including a serious global recession, and concerns that it was out of ideas for the country’s future. Think of the headwinds in the US that made Harry Truman s 1948 victory a surprise come from behind victory.
Compared to this, the National Party offered several clear easy to promote promises. They campaigned on ending English dominance of the civil service and the economy (a legacy of British rule) as well ending the competition that African laborers moving to the urban areas posed to poor Afrikaner workers. When the votes were counted the United Party had won a large popular vote victory, 547,437 (50.9%) for the United Party to 443,278 (41.2%) for the National Party. But when the seats were declared, the National party and its allies had won 79, compared to 71 for the United Party and its allies.
The National Party took advantage of one of the quirks of the South African system. The first was that seats were allowed to deviate from the population quota by a margin of 15% in either direction in order to accommodate local boundaries and to limit their geographical size. While an average of around 7200 votes were cast per constituency, the National Party only won 2 seats where more than 7200 votes were cast. The United Party by contrast won more than half its seats in districts where over 8000 votes were cast. Before you think this was a uniquely South African phenomenon. This same deviation helped New York state Republicans maintain a decades long grip on the New York State Senate. Sates in the US are generally allowed to draw districts that deviate from the ideal size by 5%. In NY one district can be 5% below, and another can be 5% above the ideal size for a 10% maximum deviation. The Republicans were able to retain their decades-long hold on the NY Senate, by cramming an extra 5% in each Dem district, while GOP upstate districts only have 95% of the average district size. This lasted until the recent 2018 blue wave that overwhelmed the NY gerrymander.
Secondly, the National Party had the advantage of being an ethnic party in a country in which the ethnic balance of white South Africans favored them. Afrikaners, to whom they focused their appeal, made up 57% of the white population. Also being more heavily into agriculture were better distributed for electoral purposes in rural districts. They ended up making the majority of voters in 98 out of 150 seats. After winning in 1948 they then redistricted again by adding six seats for Namibia, which was annexed in violation of UN resolutions calling for its independence.
After this 1948 redistricting , the results in the next two elections were even more disproportionate. In 1953, the opposition had united into the United Front, and had high hopes of victory, and with the broad support from the South African business community and economic elite, they outspent the National party by nearly 4-1. Nevertheless, when the votes were counted the pattern of 1948 was repeated, only to an even worse extent than in 1948.
In the large metropolitan city of Cape Town the United Front won 73% of the vote; in urban Cape Elizabeth they won 65%. But in the rest of mostly rural Cape Province, the National Party won 57% of the vote, and 29 out of 33 seats. The pattern was repeated nationwide. By 1958, the Opposition had all but given up serious hope of winning elections despite the fact that the results indicated that they still held the support of a majority of the electorate.
After 1958, election turnouts began to rapidly fall. English voters and moderate Afrikaners either gave up on politics or made their peace with a National Party that looked unbeatable. Large number of white liberals emigration (especially to Canada) in preference to a futile political fight.
The greatest threat to Apartheid was always demographics, and by giving no option to young whites for political change, it drove many of South Africa’s best and brightest towards emigration. By the 1970s it wasn’t just English speaking white South African leaving the country, but also young Afrikaners who wanted an opportunity to escape an Afrikaans-only educational system that the National party seemed determined to force on them.
There is this often repeated myth that white flight in South Africa only stated after black rule began with Nelson Mandela Presidency. In fact by the late 1970’s, the white population was falling by ~20,000 a year, and by ~35,000 in the early 1980’s.
South Africa’s rightwing minority white government was able to stay in power for 40 years beyond what the majority of it’s white voters (not to mention it’s majority black population) wanted because of gerrymandering. My point isn’t that conservative will reimpose Apartheid in America. Rather it’s that by imitating some of the South African National Party’s technique, namely playing to white ethnic fears, and aided by gerrymandering they can maintain their grip on power for decades beyond what their numerical numbers would suggest. History doesn’t repeat but it does rhyme. Gerrymandering is a much greater existential threat to democracy than many people realize.