Gerrymandered America is heading towards constitutional crisis

America’s claim to be the world’s model democracy has always depended on a degree of vain self-belief that others were expected to share. For much of the twentieth century this was plausible. In the age of Trump, it is far less clear. What is clear, however, is that the current electoral system in the US is not fit for purpose, nor is it, in any meaningful way, a representative democracy.

Last month the US Supreme Court issued its ruling in Louisiana vs Callais, gutting section 2 of the Voting Rights Act of 1965; the legislation that ended the Jim Crow-era disenfranchisement of black Americans. In a 6-3 ruling along the usual partisan lines, six conservative justices – three of them appointed by Donald Trump – effectively restored an “intent” standard to voting discrimination cases. This makes them all but impossible to win. On this critical issue, the US has regressed to pre-1965.

Republicans will be the immediate beneficiaries

This ruling has both immediate and longer-term consequences. The most immediate effect is arithmetical. Within hours of the decision, Louisiana’s governor scrapped existing district maps and demarcated new ones that eliminated majority black constituencies – even as primary voting was already happening. Alabama, Mississippi and Tennessee duly followed suit.

The net result is obvious; Republicans look set to gain roughly half a dozen House seats than before the changes, giving the party an estimated four percentage point structural lead in congressional elections, according to polling estimates.

Whether this is enough for the Republicans to retain control of the House is unlikely; the scale of the anti-Trump wave is likely to be greater than the gerrymandered windfall. Yet, the battle for control of the House will, thanks to this legislation, be considerably closer than it otherwise would have been.

Trump, in character, was perfectly explicit on the purpose of all this, having asked Texas last year to redraw its voting boundaries for additional Republican seats, as nonchalantly as if he were ordering room service.

The more structural consequence is constitutional, bringing into question whether indeed US democracy can survive in its current state. The US fought a bloody civil war to end slavery and secure equal rights for black Americans. Yet for nearly a century state and local authorities found ways to deny them those rights, especially at election time. Prior to 1965, literacy tests, poll taxes and even “good character” examinations were all used by Southern states to keep black Americans from the ballot box.

Precedent

Post 1965, when officials turned to gerrymandering – either “cracking” black neighbourhoods into fragments across white-majority districts, or “packing” them into as few constituencies as possible, the courts would respond. The Supreme Court ruled in 1973 that proving intent was unnecessary; a “totality of circumstances” test would do. Apartheid in means if not words was ruled unconstitutional. That precedent held until 1982’s reforms, sponsored by the “big tent” Republican Bob Dole; those explicitly rejected the intent standard and had overwhelming bipartisan support.

How the “shining city on a hill” has fallen since those heady days. In a blatant display of judicial activism, the current court’s majority has conversely ruled that plaintiffs are required to “disentangle” racial motives from partisan ones, handing Republicans a ready-made defence; any dilution of black voting power can simply be described as partisan, as black Americans vote overwhelmingly for Democrats.

If the immediate beneficiaries are the Republicans, the longer-term loser may include American democracy itself. An unstoppable force of civic anger is colliding with an immovable object of Trump’s Republican Maga personality cult; a constitutional crisis or even civil war seems unavoidable.

A Supreme Court on a mission

The current Supreme Court’s trajectory over the past decade – steadily unwinding legal restraints that have protected Americans of all colours since the 1960s – suggests something more purposeful than ad hoc changes. This is strategic and deliberate. Democracy, in its most basic form, is a system where voters choose their representatives. Instead, in the US it is now one where representatives choose their voters.

Some draw comparisons to the Supreme Court of the 1850s, whose actions led directly to the civil war. That may initially seem overdone. But a court that has spent a decade dismantling the architecture of voter rights and has now given states near unlimited freedom to draw district boundaries is not obviously less dangerous.

The US is moving further away from the reality of one person one vote to a system of ruthlessly unprincipled one-party states. It is impossible to know when America’s constitutional breakdown will happen, or what its trigger will be. One can be sure, however, that a showdown is coming.

South Africans, who have experienced their own battle to attain universal suffrage, might feel a degree of puzzlement. Our own post-apartheid Constitution – drafted in the optimistic early 1990s of peak liberalism – is sometimes criticised for being more liberal than the electorate it serves. But at least it delivers what was promised: one person, one vote, a genuinely proportional legislature, and a state that does not draw boundaries around its preferred voters.

SA’s democracy is far from perfect and its institutions are strained, as the Zuma era made clear. But the political landscape is, in its fractured way, representative. The votes of citizens in Limpopo count the same as those in the Western Cape. How a country can go the other way is hard to explain.

Legitimate outcomes

This matters outside of an academic exercise. Investors and businesses require legal predictability. They also, eventually, require faith that political systems can produce legitimate outcomes that most participants accept.

No extreme right-wing government has ever sustained long-term economic growth. This is not because their economic policies are necessarily wrong, but because systems designed primarily to preserve the power of one faction tend to eat themselves, like Saturn devouring his son.

The American economy looks robust by conventional measures. But the institutional foundations that underpin long-run confidence – independent courts, genuine electoral competition, the peaceful transfer of power – are all under more visible strain than at any point in living memory.

Trump loves to say that the US has “freedom” while others, in Europe and SA, do not. Last month showed that this couldn’t be further from the truth. DM