11/11/2011 12:29 pm ET Updated Jan 11, 2012

Gerrymanders by Any Standard

When the Supreme Court first addressed partisan gerrymandering in 1986, it set forth a standard that was essentially impossible for political parties to meet. According to the Court, it was not enough for parties to show that their supporters had been unfairly "packed" or "cracked" by devious district lines. Instead, parties also had to establish that their members had been denied the "opportunity to register and vote, and hence their chance to directly influence the election returns." Since state governments in this era almost never resorted to outright disenfranchisement, this second requirement proved almost insurmountable. In a generation of litigation, only one partisan gerrymandering suit succeeded (and it too was reversed on appeal).

For the first time in modern history, however, a number of state governments are now engaged in both the manipulation of district lines and efforts to make it more difficult for their political adversaries to register and vote. As a new Brennan Center report describes, in states such as Alabama, Florida, Georgia, Kansas, Maine, Ohio, South Carolina, Tennessee, Texas, and Wisconsin, Republican majorities have not been content merely to draw districts that will benefit them and disadvantage the Democrats. Instead, they have also passed a wide array of measures aimed at lowering turnout among Democratic-leaning constituencies: strict voter ID requirements, proof-of-citizenship requirements for voter registration, restrictions on third-party registration drives, bars on same-day registration, cutbacks to early voting, etc.

The cumulative effect of these laws is that, in 2012, many Democrats will find themselves not only placed in districts where their votes are likely to be wasted, but also unable (without significant exertion) even to register and vote in the first place. Registration will be complicated by the new documentation requirements and the reduced number of registration drives. Voting will become more difficult thanks to the voter ID requirements and the narrower early voting windows. And the results of the voting will be as foreordained as ever by cleverly crafted district lines. In the Supreme Court's terminology, "the electoral system [will be] arranged in a manner that will consistently degrade ... a group of voters' influence on the political process as a whole."

The Court's impossibly high standard for gerrymandering is thus in the process of being met in state after state. While that standard is no longer applicable -- having been rejected in 2004 precisely because it "invariably produced the same result," i.e., the failure of the relevant lawsuit -- these developments still mark a new low for our democracy. It was bad enough when parties merely sought to consolidate their hold on power through the district lines that they drew. But the recent Republican initiative is more troublesome still, interfering not only with the translation of votes into seats, but also with the franchise itself. Informed observers thought that such tactics would never be employed in contemporary American politics. Unfortunately, they were wrong.