How to stem the decay by artifice of our democracy? Jamelle Bouie observes, “Not content to simply count on the traditional midterm swing against the president’s party, Republicans are set to gerrymander their way to a House majority next year.”
The trend started with REDMAP in 2010, and with the gerrymandering and designs on the census by the late Thomas Hofeller. What those efforts produced is a 2021 Republican gerrymander in North Carolina in which “Democrats would have to win an unattainably large supermajority of votes” to have representation in Congress proportionate to their numbers in the state. Ten of the 14 new districts are projected to be Republican districts.
Democrats gerrymandered states such as Maryland and Illinois in the past, “but it is also true that the Democratic Party is committed, through its voting rights bills, to ending partisan gerrymandering altogether,” Bouie writes.
What to do, assuming one still believes in democracy as foundational to the republic?
Bouie examines a clause from the Constitution that could provide a remedy:
In Article IV, Section 4, the Constitution says that, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
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As James Madison explains it in Federalist No. 43, it means that “In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations.”
He goes on: “The more intimate the nature of such a Union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained.”
How would that work in practice?
The Supreme Court ruled in Luther v. Borden in 1849 that Congress is charged with that responsibility. Therein lies the problem. The court has ruled in several instances (and Chief Justice John Roberts agreed in Rucho v. Common Cause in 2019) that gerrymandering complaints are “‘more properly grounded in the Guarantee Clause,’ but that the court ‘has several times concluded’ that the clause ‘does not provide the basis for a justiciable claim.’”
Sans passage of new voting rights guarantees through Congress, Bouie still finds room for hope:
Still, a broad understanding of the Guarantee Clause might be a potent weapon for Congress, if a Democratic majority ever worked up the will to go on the offensive against state legislatures that violated basic principles of political equality.
The fight to fully realize American democracy will require a vision of the Constitution that emphasizes the ways in which it facilitates democratic practice, rather than one that sees only limits — a vision rooted in the hopes of freedmen rather than the fears of a moneyed elite. And it is to that end of democratic expansion that the Guarantee Clause holds a great deal of power and potential.
But for that to happen, Republicans will need a “come to Madison” moment or else Democrats will need future congressional majorities (sans filibuster) sufficient to invoke Article IV, Section 4 to protect against “aristocratic or monarchial innovations” in each state. Except extremist state legislatures are right this minute committed to installing government by Republicans no matter how small their voting bloc in the state.
“Republican in name only” now applies to the entire GOP.