On July 2, 1881, the 20th president of the United States, James A. Garfield, was shot in the back as he walked through a Washington, D.C. railway station. His deranged assassin, Charles Guiteau, is frequently described as a “disgruntled office-seeker,” and indeed he was: Guiteau considered himself responsible for Garfield’s election and demanded repeatedly to be appointed consul to Paris. The stricken president lingered through the summer heat, suffering from infection, blood poisoning, and pneumonia. He succumbed to a massive heart attack on September 19, 1881.
Garfield’s death was deeply disturbing to a nation still governed by the Civil War generation. This was especially true of future Supreme Court Justice Oliver Wendell Holmes, Jr., one of the most influential American thinkers of his (or any other) time. Holmes saw the worst of the worst during his three years with the Twentieth Regiment of Massachusetts Volunteer Infantry, which suffered more battle deaths than all but four Union regiments during the Civil War. Wounded three times, Holmes survived, but the war convinced him that certitude is dangerous, and that only democracy can prevent competing conceptions of how to live from overheating and leading to violence. Whereas some people at the time, for example, white supremacists and opponents of woman suffrage, worried that expanded access to democracy would destroy American civilization, Holmes was convinced that the only way to preserve the Republic, restored through the sacrifice of millions, was to make sure that the political playing field was as accessible and even as possible. Everyone must have a say.
Three trends work against this goal today: restrictive voter laws, campaign finance rules tilted towards the super-rich, and gerrymandering. This week the Supreme Court will hear an important gerrymandering case from Wisconsin.
This is precisely the sort of situation that worried Oliver Wendell Holmes.
Gerrymandering has been decried throughout American history, but this has not prevented both political parties from using it when they could. In recent years, computer software has enabled intricate partisan manipulation of district lines, with distorting effects. A state legislature controlled by one party today can easily draw district boundaries in a way that enables, say, forty percent of a state’s citizens to control a majority of its legislative districts. The United States is the only major democracy in the world that allows politicians to select their own voters through the process of district line-drawing. Such gerrymandering reduces political competition within districts, perpetuates the tenure of incumbents, and creates legislative majorities in state legislatures and in the House of Representatives that do not reflect the views of the majority of citizens.
Take Pennsylvania, for example. In the 2008 Obama wave, Democrats dominated the state’s congressional delegation by a margin of 12-7. Republicans won the state legislature in 2010, reversed those numbers in the 2010, however, and they redrew the state’s congressional district lines. Two years later, Democratic congressional candidates won 51 percent of the vote statewide—yet they won just 28 percent of the seats. Because of Republican redistricting, the winner of the statewide congressional vote dramatically “lost” the election.
Indeed, as a result of Republican gerrymandering in state legislatures across the nation, in the 2012 elections Democratic congressional candidates received a total of 1.4 million more votes that Republican candidates, but the Republican Party won a 33-seat advantage in the House of Representatives.
All those gerrymandered GOP congressional seats resulted in the most conservative Republican caucus ever. Bolstered by an even greater infusion of Republican House members in 2014, the expanded Tea Party organized against the party leadership and effectively ejected the Republican speaker of the House, Ohio representative John Boehner — who could not control his own party despite having a 246-188 GOP majority, the largest Republican advantage since 1947.
The antiquated electoral college system by which the United States chooses its president is not affected by gerrymandering, but it is affected by the magnified voice of sparsely-populated states. Under this system, the winner of the national popular vote has lost the office twice in the last four elections, in 2000 and 2016. This is, to put it mildly, a problem. Indeed, in the last seven presidential elections the Republican candidate has won the popular vote only once — George W. Bush in 2004. When the will of the majority of the people is thwarted, faith in the political system is eroded.
This is precisely the sort of situation that worried Oliver Wendell Holmes. When the institutions of government are undermined or break down, the Republic is endangered. As Holmes and his Civil War generation understood, participatory government — government of the people, by the people, and for the people, as Lincoln put it at Gettysburg — was the Republic, not a means to it. Lose one and the other disappears. The fundamental unity of the people must be maintained through the democratic process. Threats to that process, whether violence, corruption, unchecked power, overbearing wealth, disrespect for the Constitution, disenfranchisement, or manipulation of the rules of the game endanger that sense of unity. Holmes understood that today’s losers have to believe that victory is possible tomorrow. Loss of faith in the system imperils the republic itself.
By taking up the question of partisan gerrymandering, Oliver Wendell Holmes’ successors on the Supreme Court now have an opportunity to protect a republic badly in need of democratic legitimacy.