As right-fascists gain ground over their left-fascist brethren in state and imperial government throughout the U.S., the Supreme Court of North Carolina has taken the extraordinary step to overrule its own decision of a mere six months ago, now opting to crush the democratic rights of the state’s nationally oppressed citizens. How? By legalizing white-supremacist, right-fascist gerrymandering. The reversal of Harper v. Hall is the latest volley in a long-running assault on the most basic contrivance of liberal democracy, and the message being sent is clear: the fascists no longer care to even pretend to hear the voice of the people.
The battle over gerrymandering has been fought since the introduction of the current political machine by antebellum Democrats in the early mid-19th century. In fact, the term comes from 1812 and the redrawing of Massachusetts electoral districts by Governor Elbridge Gerry, when he redrew a district in Boston to look like a salamander on a survey map. The practice is designed to combine various districts so that the voting population of the enemy — the party not currently in power, whichever that may be — is concentrated in the fewest number of districts or broken up so that they are counteracted by larger numbers of the party doing the drawing. Gerrymandering is nearly as old as elections in the U.S. and almost coeval with the founding of the U.S. settler-republic itself.
It has always caused righteous and justified outrage among the people who are actually doing the voting. By its very nature, Gerrymandering is anti-democratic. In electoral regions where the ruling party has a safe majority of the votes, there’s no reason to Gerrymander. It’s only where the ruling party is slipping from power or foresees a loss in voters that it goes to the district maps and tries to draw the borders in its own favor.
In 2019, the Supreme Court of the United States, stacked with right-fascist jurists, ruled that partisan gerrymandering, even when “excessive,” was “nonjusticiable” and involved “political questions.” This was the case of Rucho v. Common Cause, 139 S. Ct. 2484, 2491, 2507 (2019). In the everyday language of human beings, this tortured legal-speak means that, should a political party redistrict your entire state to make sure it, and it alone, can win elections in the future, the courts have no power to aid you. “Nonjusticiable” means there is nothing the court can do; a “political question” is one that the courts have decided must be fixed by elected representatives. Never mind that the gerrymandering itself makes it impossible to elect representatives who would undo the partisan redistricting.
Under a little-used and even less-granted rule of procedure, the legislature of North Carolina asked their state supreme court permission to re-argue a case that had been decided once already last year, when the judges of that court had held a Democratic majority. That case, Harper v. Hall, 380 N.C. 317, 390 (2022), had determined that the North Carolina constitution prohibited partisan gerrymandering.
On 28 April, 2023, the Supreme Court of North Carolina, newly-packed with pro-gerrymandering right-fascist Republicans, overruled Harper v. Hall. The new Harper v. Hall ruling explicitly mirrors the decision of the U.S. Supreme Court in Rucho v. Common Cause — that is, since the redistricting has already been done, there’s no way to fix it. The question is, in the twisted language of the law, “nonjusticiable.” In other words, to those who have lost the ability to have their voices heard in even the meager and anemic elections we’ve become accustomed to in this dying bourgeois republic, the answer is: “Too bad!”
Gerrymandering: the Legal Landscape
The most prominent gerrymandering cases were, of course, all within the territory of New Africa — that band of fertile soil in the U.S. South where the biggest and most prosperous slave plantations were founded, which imported the most Black African slaves, and which are, consequently, today the regions where most Black people in the U.S. Empire live. The practice of redistricting to disenfranchise Black voters came under federal scrutiny in the 1960s and was explicitly outlawed by the Voting Rights Act of 1965.
Under the liberal order, any victory secured by the oppressed, by the laboring masses, is subject to reversal. Liberalism, and in particular the brand of left-liberalism popular among the functionaries of the Democratic Party, functions on the level of form rather than content. To the left-liberal, there is no higher principle than applying, however unequally, the same form to many situations and arguing, from the fact that the form remains unchanged, that this, in some abstract and metaphysical sense, represents equality.
It was only a matter of time before this liberal mania of honoring procedure and process over results caused an utterly ludicrous shift in the very meaning of the law. Although the fight against gerrymandering had taken on an explicitly anti-racist cast, it would, in 1993, be used to deprive a Black population of its political power.
Shaw v. Reno, 509 U.S. 630, was a 1993 U.S. Supreme Court case that came up out of North Carolina. In the 1990 census, North Carolina qualified for a new electoral district. This district was drawn by the North Carolina state legislature in a “snake-like” manner to create what is called a “majority-minority” district; that is, the new electoral district was majority Black. North Carolina was under the rule of the Voting Rights Act, which meant any redistricting had to be approved by the federal government, which would approve or deny the redistricting based on a test as to whether the new districts jeopardized minority presentation. The Justice Department accepted this new district.
Ruth O. Shaw and a group of other white residents sued the U.S. Attorney General and various state officials over the plan. The Supreme Court, then under the conservative right-fascist leadership of Justice Sandra Day O’Connor, ruled that the electoral district, because it separated out Black voters, was an effort to segregate races and was therefore a violation of the white resident’s constitutional right to equal protection under the law. You’re reading that right: the redistricting was held to be unconstitutional because it violated the white resident’s rights by attempting to ensure that Black voters were heard in North Carolina, a state with a historical record of suppressing the Black vote.
Now that the reactionary elements had realized they could use the anti-gerrymandering rules to their benefit, a drive kicked off to make gerrymandering illegal on its face and reverse the gains made by the Black voters of the South throughout the 1960s and 1970s. This legal push has resulted in the modern division of gerrymandering into two categories: the legal, and the illegal.
Racial gerrymandering is still per-se illegal. But, thanks to a string of U.S. Supreme Court decisions culminating in Rucho v. Common Cause, politically partisan gerrymandering is not. That is, it is illegal to design an electoral district such that Black voters are concentrated and can form a majority, but it is not illegal to design an electoral district such that Republican voters can form a majority.
Under the hood of the bourgeois democracy under which we live, district-drawing is one of the mechanisms used by both parties to try to gain an advantage in the federal government. Both Democrats and Republicans aggressively redistrict to shore up seats where they’re weak. Unlike the Democrats, however, the Republicans have been pursuing a united strategy for redistricting since 2010. REDMAP (the Redistricting Majority Project) was founded in that year and the Republican party has poured some $30 million dollars into this project. Over the past 23 years, REDMAP has used computerized mapping software to help redraw hundreds of districts in each round of redistricting. By 2012, the Republican party had already received an enormous benefit in the U.S. House of Representatives. Today, many states that were formerly controlled by Democrats are now bastions of Republican power thanks to this, and other efforts to control which votes are counted and which are neutralized.
Voting in the Bourgeois Republic
Once every few years, the workers in the United States Empire have been accustomed to being given the opportunity to engage in a piece of political theater: voting which wing of the great vulture will be in charge of our oppression. State ideologists, textbook authors, and talking heads on television cloak the bourgeois republic in the dizzy and eager language of democracy. We, the working people, know better. This is shown in every election in our lifetime. Voter turnout in the presidential elections, for instance, has hovered between 50 and 65% throughout the entire 20th and 21st century. Why don’t people vote? Because they know, both from history and experience, that their votes don’t matter.
Why don’t the votes of the working people matter? There are numerous ways and means used by the ruling class to denude, sift through, sort, and screen the votes of the working people. To address them all would be an involved exercise, but some of the ways the power of the democratic vote is reduced and winnowed away include: first-past-the-post elections, election days coinciding with work time, polling stations that are inaccessible, the electoral college, huge costs of running a campaign for office, and the worst and most potent tool of the ruling class of all: backroom dealing. We all know that the way politics works in this country is that moneyed interests talk directly with politicians outside of the view of the public. Even supposedly “progressive” politicians take pride in their ability to manipulate the system of deals, bargains, and secret handshakes that pervades the halls of power. The fact of the matter is, all the decisions made by our politicians are made in private. We are never in the room. The money is.
But because the power of the vote is often useless or meaningless, that doesn’t mean it’s always meaningless. There have been times when the vote has mattered. There have been times when the vote has shown an expression of collective rage, even of class power! Those times are few and far between.
More importantly, though, the franchise, the right to vote, has expanded significantly since the settler-republic was first founded. Initially, only propertied white men of English heritage could vote in most states (and, consequently, in federal affairs). As this changed, the power of the vote was reduced, to prevent what the liberal hysterics refer to as “mob rule” or the “rule of the many.” (Why are they so afraid of the rule of many? Because they are the few!) In liberal democracy, enfranchisement is not political power in its own right, but rather an indication of which segments of the population the ruling class deems important enough to placate.
So why should we be up in arms about voting rights, which we have just agreed don’t mean much, being taken away? Here’s why: Those rights have been secured through bloodshed. They are the concession, wrung through the centuries of hard class struggle, that we have forced from the ruling classes. It’s not so much the fact that we begrudge the blood-suckers and parasites in our government or the bloated hypocrites that own the companies and thus the country the right to participate in their dog-and-pony show. But winning the vote was a step toward winning the political battle. Losing the vote — watching them strip it away from us with gerrymandering and other tricks — that demonstrates not only the disdain in which they hold the working people and the nationally oppressed, the disgust they have for you and I, but it is the worrying and dangerous call of the rise of open violence and reactionary attack.
What should stir our blood is not that our voices carried weight with the ruling class, but that we are now being told not to talk at all. The fact that they feel no need to operate under even the scant theater of pluralism and popular will should concern everyone.
The Sharpening of Partisanship
Since the 2016 elections, following on the heels of Republican victories in redistricting in the early 2010s, partisanship has sharpened on the right side of the aisle. The GOP has been tilting steadily rightwards into more and more brutal forms of right-fascism since 2001, and in 2016 the far-right fascist element within the party won control, not only of the party, but of the entire country.
We are now in an era where the entire U.S. government at all levels stands divided between the left-fascists, who merely want to see a stabilization in the current capitalist world-order, and the right-fascists, who call for increased exploitation, white class collaboration, and much more vigorous suppression of the growing Communist movement within the empire.
The Supreme Court of North Carolina lost two of its Democratic Justices last year, and these were replaced by Republican Justices. This is what enabled the clever maneuvering by the North Carolina legislature to get the case in which gerrymandering had been rendered illegal under North Carolina law heard for a second time before a new, sympathetic — we might even call them co-conspiratorial — court.
This battle between the left-fascists and the right-fascists is playing out not only in the political arena, where it traditionally has been fought, but also in the country’s courts. Long having pursued a project of planting arch-conservative lawyers into positions of high authority in both state and federal courts, the GOP is now poised, pushed by its dominant far-right wing, to deliver body blow after body blow to their political opponents. The reversal of Harper v. Hall is one such stroke; and because the Democrats had relied upon the oppressed Black masses to support their capitalist program, it is also a blow against the already-shaky structure of the bourgeois “democracy” enjoyed under the empire.
Harper v. Hall
The Democrats, and by extension (though of course, not by design) the people of North Carolina, won Harper v. Hall in 2022. This was a case brought in 2021 by the North Carolina League of Conservation Voters and individual voters joining together to file suit against the president of the North Carolina senate, the speaker of the North Carolina house, and the chairs of the redistricting committees, challenging the constitutionality of the redistricting maps that were drawn. The maps, of course, only got that far because the U.S. Supreme Court had repealed key sections of the Voting Rights Act, mentioned above.
On 20 January, 2023, the legislature of North Carolina filed a motion for rehearing before the new, right-fascist Supreme Court of North Carolina. The court gave no real reason for its decision to rehear the case (“a recently issued opinion appropriately is reheard if the petitioner makes a satisfactory showing that this opinion may be erroneous” was all the logic it provided). It needed none! The GOP-controlled court reheard the case because they wanted to reverse it. On 28 April 2023, they did exactly that.
In its new decision, the Supreme Court of North Carolina sneers, “such claims ask courts to apportion political power as a matter of fairness…. Individuals have no constitutional right as members of the public to a government audience for their policy views.” Harper at *48 citing Minn. state Bd. for Cmty. Colls v. Knight, 465 U.S. 271, 286 (1984). (emphasis added.)
The left-fascists still cling to a form of bourgeois democracy, but increasingly the right-fascists have determined that even the shreds of participation in government that have been won over the past century and a half are too dangerous to the ruling class. This is a naked, undisguised attack on democratic participation in government. We should read the decision of the Supreme Court of North Carolina in the same terms that they state it:
As long as you get to cast a vote, the fact that it is purely symbolic doesn’t matter.
