By: Alexis Eisa
“Every citizen shall have the right and the opportunity . . . to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” This is the United States’ binding, legal obligation to its citizens as customary international law, or general principles of law that are binding on every state (regardless of its adherence), makes it so. Furthermore, the U.S. ratified the International Covenant on Civil and Political Rights, further emphasizing its international law obligations to provide for genuine elections. Yet, the gerrymandering occurring in the United States has effectively led the country to violate the very human rights it undertook to provide, protect, ensure, and guarantee.
In short, gerrymandering is the redrawing of district maps that legislators use to shift the power balance. In 39 states, state legislators redraw the maps themselves. In the other 11 states, a panel outside of the political branches redraws the maps.
Gerrymandering “makes elections less fair.” Typically, in the states where the legislators are redrawing the maps within their own state, the legislators will redraw the maps “to manufacture election outcomes that are detached from the preferences of voters.” In essence, it manipulates the power of a vote.
Although the Voting Rights Act of 1965 prohibited racial gerrymandering, the U.S. Supreme Court ruled that partisan gerrymandering is a non-justiciable question for the Court. Since the decision in 2019, partisan gerrymandering (and usually racial gerrymandering due to the Supreme Court’s acceptance of “mixed motive” legal arguments and the correlation between partisan voting and race) has continued. Today, state courts in Ohio, North Carolina, and Alabama are hearing cases on the constitutionality of gerrymandering. Some state courts have found such partisan gerrymandering as undemocratic. Yet, the U.S. Supreme Court just recently stayed the Alabama Supreme Court’s order of redrawing the maps. The Alabama Supreme Court ordered the redrawing because the partisan gerrymandering clearly resulted in racial gerrymandering, with only one Black majority district out of 27. The U.S. Supreme Court’s stay and map reinstatement gives the impression that racial gerrymandering will now be legally tolerated in the United States, a further violation of the country’s obligations in international law.
Gerrymandering dilutes the power of the citizen’s vote. As discussed, the tactics behind gerrymandering intentionally manipulates the power of a citizen’s votes by grouping voters in certain districts to either overcome or succumb to other votes. Consequences of which are disingenuous elections and voting processes. Thus, this results in the Untied Stated failing to provide, ensure, and protect “every citizen[‘s] right to vote in “genuine” elections.
Under the Black’s Law Dictionary, genuine is defined as “authentic or real; having the quality of what a given thing purports to be or to have.” In a democratic society, a vote “purports” to have equitable value to other votes. More importantly, a vote “purports” to be a voice that has value, that will be heard. Yet, the gerrymandering process undoubtedly alters the value of votes by its blatant manipulation.
Thus, a genuine election would be for every person’s vote to count equally, without manipulation, without being grouped in a certain way to either lessen or greaten its (comparative) value. In other words, a genuine election cannot include gerrymandering tactics.
Gerrymandering creates unfair elections. In fact, some redistricting is so successful, that certain elections are rendered practically null, because the outcome is so certain. How can a genuine election be solidified before its citizens take part? This is the definition of anti-democratic (and a grave violation of human rights law).
For example, many legislators either “crack” or “pack” voters. When “cracking,” legislators “break up a cluster of a certain type of voters — people from a specific demographic group, or simply affiliated with the opposing party — and spread them among several districts, diluting their vote rather than allowing them to exert a larger influence in fewer districts or even a single district.” When “packing,” legislators “cram the members of a demographic group, like Black voters, or voters in the opposing political party, into one district or as few districts as possible. That leaves their numbers in the other districts too scant to win elections.”
It is beyond dispute that such tactics create disingenuous elections. Rather than allowing each vote to count for equitable (purported) value, each vote is lessened or greatened to force an outcome. This leaves citizens without voices. Each voice is grouped to either silence or be silenced.
Gerrymandering limits a citizen’s right to directly and genuinely take part in its government. Gerrymandering is anti-democratic. Gerrymandering is a violation of the human rights the U.S. undertook to ensure and protect. Gerrymandering is a violation of the human rights that U.S. citizens are guaranteed. Our voices must rise up and demand for a more equitable solution before they are once again diluted—all 50 states must utilize a non-partisan, outside panel to remap district lines. The will of the people cannot be silenced.
Law Journal for Social Justice 