In the weeks since the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, the call for gun reform has grown louder, thanks in large part to the work of student activists. These students and many others have called upon their state and federal lawmakers to strengthen our gun laws to protect public safety in ways that our highest court’s current interpretation of the 2nd Amendment permits (see Gun Violence, the Second Amendment, & Change, in which I discuss District of Columbia, et al. v. Heller).
Are our elected officials listening?
There has been progress on the state level, even before the Parkland tragedy. The Giffords Law Center has rated each state’s gun laws, giving California an “A” for the strength of its laws while giving many others states, mostly in the South, an “F” for failing to pass legislation that protects the public from gun violence (these ratings are based on 2017 data). In my state, Pennsylvania, which earned a “C,” there are several pending gun bills I’m watching, including a bill to close the loophole in our Protection From Abuse law that allows perpetrators who have been ordered by the Court to relinquish their weapons to leave those weapons with any random third party (see here, via Twitter, for a list).
But what about on the federal level, where lawmakers have the ability to pass nation-wide legislation best suited to address a nation-wide problem like gun violence?
Recent polls show that the majority of Americans support reasonable gun reform to protect public safety, but few Americans believe Congress will act on it. House Speaker Paul Ryan has made it clear that he doesn’t see a need for extensive gun reform, saying, “we shouldn’t be banning guns for law-abiding people” and calling Donald Trump’s ill-advised proposal to arm teachers a “good idea” best left to local lawmakers rather than Congress.
Why is Congress so reluctant to address gun violence in a meaningful way?
A large part of the problem is the gun lobby, particularly the National Rifle Association (NRA), which represents only a small percentage of gun owners but has the funds to mobilize voters and essentially own Congress. (Check here, via Politico, to see if the NRA has purchased your member of the House (as of October 2017) and here, via NPR, to see how your member of Congress has voted on gun bills.)
But the NRA isn’t the only roadblock to reform. Another barrier is partisan gerrymandering of our legislative districts on the state and federal levels.
According to Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty (2016), by political scientists Anthony J. McGann, et al,* manipulating the shape of legislative districts to achieve a partisan advantage results in elections being decided “not by how people vote but by how districts are drawn (page 14).” The most recognizable example of partisan gerrymandering is the oddly shaped district that makes it more likely the party that drew the lines will win the seat.**
With partisan gerrymandering, which makes districts “safe” for a particular party, why would a lawmaker need to listen to their constituents? They know the system’s designed to make it hard to vote them out.
In Gerrymandering in America, the authors assess the impact of Vieth v. Jubelierer (2004), in which the U.S. Supreme Court turned a blind eye to partisan gerrymandering by calling it a “political question,” allowing the practice to continue unabated. The authors found that the partisan bias of Congress, which is reapportioned every ten years with its districts drawn by the states, grew after the 2010 Census and could not be explained by non-political factors like geography or demographics.
Although both political parties engage in partisan gerrymandering, the Republican Party (the party most owned by the NRA) currently benefits from it the most:
At the national level, the partisan asymmetry in 2012 was 9.38%, whereas for the 2002 districts, it was 3.4%. In terms of the bias, if the parties split the national vote 50/50, there is now a 5% bias toward the Republicans, as opposed to a 2% bias in 2002 (page 87).
McGann et al. frequently refer to the congressional seats from the state at the heart of the Vieth case, Pennsylvania, my home state. They write:
[Pennsylvania] is a clear example of the power of districting. In 2012, the Republicans took thirteen out of the eighteen congressional seats, even though the Democrats actually won more votes (page 9).
Thanks to partisan gerrymandering, a minority of voters control a majority of the seats, contrary to our democratic principle of majority rule. The authors conclude that Vieth “altered the character of representation and democracy in a significant way.” State governments, which draw the seats for the House of Representatives, are “no longer threatened by judicial challenge” and so “can use their ability to draw districts to full effect,” undermining the concept of “one person, one vote.” The result for voters is that we do not get as much say in who represents us in the House of Representatives as we should.
Will this change?
Right now, the U.S. Supreme Court is considering a couple of partisan gerrymandering cases (which will essentially decide a North Carolina redisticting challenge too):
- Gill v. Whitford, concerning the congressional districts drawn by Wisconsin’s Republican-controlled legislature; and,
- Benisek v. Lamone, concerning the congressional districts drawn by Maryland’s Democratic-controlled legislature (the only state in which McGann, et al. found a statistically significant Democratic Party bias in its congressional district plan).
We’ll see whether the Court changes its mind from Veith about whether it can curb the practice of partisan gerrymandering under the U.S. Constitution. A more promising avenue for change may come from our state courts, interpreting state law instead of federal law. Recently, in League of Women Voters v. Commonwealth, the Pennsylvania Supreme Court announced in January 2018 that the biased congressional seat map (that McGann, et al. talk about) violates the Pennsylvania Constitution.
After a convoluted series of events, which the Brennan Center explains in a timeline, the Pennsylvania case now waits for the U.S. Supreme Court because leaders of the state Republican Party have asked them to intervene (for a second time; Justice Alito declined the first request in February).
It would be unusual and inappropriate for our highest federal court to meddle with the way a state’s highest court has interpreted its own law, especially when it’s related to the electoral process, but then there’s Bush v. Gore, in which the U.S. Supreme Court intervened in the political process to appoint George W. Bush President. Sometimes our justices can’t hide the fact that they have a partisan bias too.
*The full list of authors: Anthony J. McGann, Charles Anthony Smith, Michael Latner, and Alex Kenna.
**The authors also note that sometimes oddly shaped districts are necessary to achieve an unbiased result that does not give either political party an advantage. They use Illinois as an example (pages 104-105).
***The Constitution leaves it to the states to draw the districts for the House of Representatives. States with more than one seat have different processes for drawing districts: “(1) legislature and governor, (2) an independent commission, (3) a commission with the legislature’s approval; (4) the legislature with a commission as a backup, or (5) the legislature with a court’s approval or with the court as a backup (page 152).”