Experienced followers of North Carolina politics expect it; it is every bit as reliable—maybe more so these days—than the shift from fall to winter. For those new to the state, prepare yourselves for stormy political weather. Cries of racial discrimination will be met with oaths of racial blindness. Courts for the coming decade will be filled with graphs and maps and explanations of modeling algorithms, while lawyers debate the legality of newly approved legislative and congressional district maps. As political science professors, and as engaged citizens, we feel that the public and courtroom debate over the legality of the maps has distracted us from a more fundamental concern: gerrymandering’s impact on the legitimacy of our democracy.
The distinction between legality and legitimacy is key. Legitimacy concerns adherence to objective or widely-held normative values and principles. In the United States, we judge the legitimacy of laws based on how well they conform to fundamental principles of American political morality: equality, the security of rights (including for those in the minority), and the sovereignty of the people.
History provides plenty of examples where actions understood to be legal violated the normative foundations of legitimacy. Prior to the 1965 Voting Rights Act, parties used all manners of rules to restrict the franchise, especially from African Americans. Those were legal, but not legitimate. Hopefully most of us would see that slavery was never legitimate, even when it was legal. Ever since the core values of our Republic were articulated in the Declaration of Independence, much of U.S. history has been characterized by the struggle to make our laws align with and realize the promise of these principles.
The most important question for all to ask about gerrymandering, including the members of the news media covering the lawsuits and the judges deciding them, is not whether gerrymandering is legal, but whether gerrymandering is consistent with those core norms that define legitimate government. If parties can effectively disenfranchise voters based on their political views, is that respecting equality, securing equal rights, and protecting the sovereignty of the people? If not, it is illegitimate.
This is not just an intellectual exercise. The implications of failing to consider gerrymandering’s effect on legitimacy are very real. What will happen when a group of citizens is effectively underrepresented because of a rigged process? If they view the process as illegitimate, how long will they feel obligated to comply with the laws and policies that result from that process?
We have just passed the one-year anniversary of an attempted coup in our country. Gerrymandering did not cause that coup. But the attempt and the continued reluctance by many in power to hold themselves and others accountable for it does hold important lessons for the gerrymandering debate. Gerrymandering both reflects and reinforces the idea that politics is a winner-take-all proposition: that rules should be bent where necessary and broken where possible. It appeals to the worst instincts of those who seek office, allowing them a way to avoid debate and consolidate power, rather than encourage debate and share power. The coup attempt also shows how unscrupulous leaders can fairly easily manipulate followers’ perceptions of legitimacy. It is therefore vital that we ensure the fairness and transparency of the democratic process.
Practically speaking, fighting gerrymandering on the grounds of legality keeps us in the realm of tweaks, when we should be in the realm of overhauls. The fight over our electoral maps is not, and should not be, about legality. It is about whether we want to protect the legitimacy of our democracy. We think we should.