Ohio State University

Gerrymandering, And Those Who Fight to Protect it, is A Threat To American Democracy by Drew Flanagan @ The Ohio State University

Creed’s Seafood Steaks in King of Prussia: classy seafood joint, or embodiment of democratic erosion? According to political scientist John Kennedy, it’s essentially both. Dr. Kennedy is a professor at West Chester University, who recently served as an expert witness during a Pennsylvania Supreme Court case regarding the validity of the state’s Republican-drawn 2011 electoral map. Kennedy explained to the justices that the only thing holding Pennsylvania’s seventh district together was a minuscule geographic point occupied by Creeds steakhouse. Districts like these are not created by accident, and it’s thus no surprise that in 2016 Republicans won 72% of Pennsylvania’s house seats (13 out of 18), despite receiving only 50% of the vote. Notably, the Republican party has won these same 13 seats in every PA congressional race since the last redistricting in 2011.

And so, on January 22nd, the Pennsylvania Supreme Court overruled a lower-court decision and declared that the 2011 map violated the state constitutions guarantee of “free and equal elections.” The court offered the Republican-dominated legislature and Democrat Governor Tom Wolf three weeks to agree on a new map, and when they failed to do so, stepped in and created its own. Naturally, Republican lawmakers were not pleased.

Rep. Cris Dush responded by introducing impeachment articles for the court’s five Democratic justices, accusing them of  “blatantly and clearly contradicted the plain language of the Pennsylvania Constitution,” and “defying the sovereignty of God.” While these allegations originally appeared somewhat outlandish, U.S representative Ryan Costello and respected Senator Pat Toomey recently endorsed Dush’s measure, with Toomey arguing that it was “inevitable” state lawmakers might pursue impeachment after what he called a “power grab” by the Democrats. Republican leaders also attempted to get Justices Donohue and Wecht kicked off the case (due to previous statements about redistricting), and filed an emergency request to the U.S Supreme court to block the new map.

This scenario arrives at the head of a nationwide gerrymandering battle, as Republicans have fought fiercely against unfavorable court rulings in Texas, North Carolina, and Wisconsin. Legislators are currently gearing up for the 2020 census, which will be accompanied by a crucial once-a-decade redistricting process. Despite the fact that gerrymandering is an inherently anti-democratic practice, it has proliferated throughout the United States since Massachusetts Governor Elbridge Gerry approved an 1812 electoral map that included a district shaped like a salamander. This is not a new strategy, nor is it uncommon for both Democrats and Republicans to fiercely defend their precious gerrymandered districts. However, the recent developments in Pennsylvania and the United States as a whole are disturbing, particularly when evaluated through the lens of three notable academic categorizations of anti-democratic behavior: stealth authoritarianism, democratic backsliding, and constitutional retrogression.

Ozan Varol states that stealth authoritarianism functions to increase the durability of authoritarian governance by concealing anti-democratic practices under the mask of law. Democratic erosion is thus facilitated through innovative stealthy tactics, as opposed to the high visibility strategies typically employed by authoritarian regimes. These include the creation of systematic electoral advantages and consolidation of the judiciary to limit its ability to check power. Likewise, PA Republican legislators have sought to maintain their systematic electoral advantage by removing unfriendly members of the supreme court, as well as attempting to supersede their decision through appealing to the SCOTUS.

Ellen Lust describes democratic backsliding as changes that affect multiple dimensions of democratic quality, including electoral competition, liberties, and accountability. Pennsylvania Republican lawmakers have efficiently eliminated electoral competition in specific districts, as demonstrated by their ability to retain the same 13 seats every election year. This practice also directly limits accountability, as legislators occupy completely safe districts, virtually eliminating the chance of defeat regardless of what actions they might take.

Aziz Huq and Tom Ginsburg describe constitutional retrogression as the incremental erosion of democratic practices such as competitive elections and rights of political speech. Key pathways to constitutional retrogression include the elimination of institutional checks and political competition. Rep. Dush’s attempt to impeach unfavorable justices embodies said notion, as he is literally attempting to eliminate the justices who desire to curb Republican dominance in the legislature. Even scarier, it appears Republicans could actually achieve this measure. The PA constitution requires a majority of the House and two-thirds of the Senate to impeach public officials, and thanks to gerrymandering, the GOP has the necessary margins in both legislative chambers. Following an unsettling pattern, the actions of PA’s Republican lawmakers appear to consistently mirror these academically described anti-democratic behaviors.

Huq and Ginsburg also analyze the likelihood that the United States could succumb to democratic erosion, identifying various contributing factors to this end. Notably, these include the influence of federalism, which the authors claim is “both anointed as democracy’s savior” and “condemned as a handmaiden of local tyrannies”. Subnational entities possess the power to both curb and exacerbate constitutional retrogression. If a dictator seeks to overthrow a federalist regime, he/she might be met with powerful resistance from highly organized autonomous state governments. However, these units might also seek to impose anti-democratic practices within their own domain through manipulation of public policy and voting rights. I assert that we are currently observing a form of the latter, as displayed by PA state legislators attempts to limit electoral competition and obscure the check and balances system.

However, our current predicament is altered via a unique twist which Huq and Ginsburg fail to address. Not only is a sub-national unit pursuing anti-democratic practices, said actions are apparently supported by the executive branch. Responding to the PA supreme court’s ruling, President Donald Drumpf tweeted urging Republicans to “challenge the new Congressional Map, all the way to the Supreme Court, if necessary. Your Original was correct!” This revelation forces us to consider the frightening prospect of a coordinated effort between the federal government and sub-national units to eliminate electoral competition and checks on power.

The aforementioned analysis subsequently paints a somewhat grim picture. Currently, Pennsylvania Republican lawmakers are bitterly fighting to uphold an electoral map which violates the standard of free and fair elections. These individuals are also attempting to potentially impeach members of the court who have sought to abridge this justice, and are exploring every legal avenue to invalidate the court’s decision. Such circumstances embody the conceptual warnings forwarded by the described concepts of stealth authoritarianism, democratic backsliding, and constitutional retrogression, displaying various potential warning signs of democratic erosion. Moreover, this worrying development is compounded by the apparent support offered by the President of the United States, posing a truly disturbing scenario where Republicans at both the federal and state level could work together to facilitate instances of injustice and diminish our democracies ability to function effectively.

We find ourselves faced with this scenario on the eve of the 2020 census, as the impending redraw of electoral districts grows ever closer. Moreover, the Supreme Court recently agreed to hear two major cases regarding gerrymandering, posing the potentiality to drastically change to the way electoral districts are formulated. Essentially, the future of our democratic process somewhat hangs in the balance. Should we brace ourselves for an authoritarian takeover? Probably not. However, the warning signs are there, and it’s crucial we recognize them.

Photo: Wikimedia Commons, “Pennsylvania Republicans”

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