Gerrymandering: Violates First Amendment?

by Illinois League of Women Voters

Fair representation is supposed to be the goal of legislative mapmaking. Partisan gerrymandering hijacks that process, allowing political power brokers — not voters — to pick winners and losers. By rearranging the map to place your vote where it suits their needs, politicians stifle your voice. Is it any wonder your lawmakers listen to their party leaders instead of to you?

The U.S. Supreme Court has heard only two cases on gerrymandering— in 1986 and 2004 — based on claims of politically motivated redistricting, and it recognized that partisan gerrymandering might violate the U.S. Constitution. But neither of the cases identified an applicable constitutional standard.

Both of the cases claimed that deliberately diluting an opposing party’s voting strength violated the 14th Amendment’s equal protection provision. In the 2004 case, Justice Anthony M. Kennedy hinted that the First Amendment might be a better button to push.

The Illinois League of Women Voters makes a convincing argument that by sorting residents into districts based on how they’re expected to vote, lawmakers manipulate the opinions that are heard in those districts. As a result, “voters in Illinois seldom have real choices in our elections,” League President Jan Dorner said.
The lawsuit asks the court to declare that drawing maps based on the political views or voting histories of residents for the purpose of securing a partisan advantage violates the First Amendment. It asks the court to invalidate the maps, and to order the governor and General Assembly to come up with a redistricting process that isn’t based on self-serving political interests.

It’s asking the court to make new law, in other words. The league spent most of last year trying to accomplish that through legislative channels. It didn’t happen, for obvious reasons.

Part of the League’s argument is based in two recent Supreme Court rulings – Citizens United v. Federal Election Commission, 129 S.Ct. 2893 (2009) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011) – that a state government may not seek to control or balance partisan activity in elections. Government cannot set out to “equalize speech” and so, of course, cannot, therefore, use redistricting to drown out one view or another.

None of the recent Supreme Court decisions regarding either political or racial gerrymandering have been unanimous. Justice Kennedy, even though siding with the majority in Vieth v. Jubelirer 541 U.S. 267 (2004), an important redistricting case, found a First Amendment consideration compelling:

“The First Amendment may be the more relevant [more relevant than the 14th Amendment] constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” Our lawyers have incorporated this theory into our court pleadings.

The League’s approach to challenging the partisan gerrymandering of Illinois legislative districts is novel but given the public frustration with the current system, the League wants the federal court to order a process that is driven by “impartial” decision-makers.

The League of Women Voters isa nonpartisan organization and works to increase understanding of major public policy issues, and influences public policy through education and advocacy.

Jason Rink is the Editor-in-Chief of The Liberty Voice. Executive Director of the Foundation for a Free Society. He is the producer and director of Nullification: The Rightful Remedy, and the author of “Ron Paul: Father of the Tea Party” the biography of Congressman Ron Paul. See more of his work at his writing at JasonRink.com and his film production work at FoundationMedia.org.

1 Comment

  1. Jeanne Weaver

    June 19, 2012 at 9:49 am

    Is there a petition I can sign to support the League’s position on this important voting issue?

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