Elbridge Gerry, Phil Ochs, Grover Cleveland and ‘One Man No Vote’

“Oh look outside the window, there’s a woman being grabbed
They’ve dragged her to the bushes and now she’s being stabbed
Maybe we should call the cops and try to stop the pain
But Monopoly is so much fun, I’d hate to blow the game…”

— Phil Ochs, “Outside of a Small Circle of Friends”

Around 3 a.m. on March 13, 1964, in the Kew Gardens section of Queens, New York, 29-year-old Catherine “Kitty” Genovese was raped and murdered outside her apartment building by a psychopath named Winston Moseley.

Two weeks later, the New York Times published an article saying 38 neighbors heard and ignored Genovese’s screams for help.

The Times itself, among other publications, subsequently found the “38 non-responsive neighbors” part of the article was not true. At the time, however, the article triggered a nationwide gulp of horror. Had Americans become that callous, that cold, that indifferent?

We’ve wrestled with the question ever since, 55 years and counting. Most of us like to think that when it comes to doing the right and fair thing, we Americans set the world standard. So do we?

It’s a question with many answers, and on Thursday we got another one. If a majority of Supreme Court justices had been living in Kitty Genovese’s building in 1964, figuratively speaking, Winston Moseley would have had nothing to worry about.

In a 5–4 decision, the Court ruled that it’s fine for states to draw congressional districts so one party is virtually assured of winning many more seats than its actual percentage of that state’s votes.

The practice is called gerrymandering. It’s named for Elbridge Gerry, the Massachusetts governor who in 1812 drew a contorted district that was said to look like a salamander in order to ensure his party would win it.

The process is simple and often marvelously effective. If the minority party has, say, 40% of a state’s electorate, you draw maybe two districts that include almost all those voters. So the minority party is pretty much guaranteed those two seats. Then you divvy up the other 10 or 11 districts so they all have a majority of your own party’s voters.

So even though the minority party represents 40% of the state’s voters, it only has maybe 15% of the congressional representation.

As Elbridge Gerry’s date suggests, this practice is as old as America itself, and it’s practiced with impressive bipartisanship. The case on which the Supreme Court ruled this week came from Maryland, in which Republicans cited Democratic gerrymandering, and North Carolina, where Democrats said Republicans were skewing the map.

The problem with gerrymandering, obviously enough, is that it cuts democracy off at the knees. It denies representation to millions of voters while giving disproportionate power to others.

This isn’t whining from the losers. The Supreme Court majority in this week’s decision acknowledged it’s true.

And then proceeded to conclude neither the Court nor the federal government could do anything about it.

Specifically, the Court found that nothing in the U.S. Constitution gives the federal government or courts the right to intervene, that is, order states to draw fairer electoral maps.

The Supreme Court heard a noise, looked out the window, saw the whole basis of representative democracy being mugged, and shrugged.

In more technical terms, the Court majority based its ruling on “originalism,” the view that the Constitution was a very literal document and that if its authors did not specifically assign a power to the federal government, that power does not exist.

The counterargument here is that the authors of the Constitution saw it as a living, breathing document that would provide a flexible framework in which a future society could make appropriate adjustments as technology, morality, human relations, social consciousness and the world inevitably evolved.

That’s kind of what’s happened with America over the last 230 years. Slavery was abolished, women were given the vote, things like that, and while some of those changes were codified by Constitutional amendments, many were written into law essentially by popular demand and a changing consensus on the role of government.

For context here, consider the still-famous Texas Seed Bill of 1887. Congress approved $10,000 to save Texas farmers whose crops had been wiped out by weather disasters, and the bill was promptly vetoed by President Grover Cleveland with an explanation that included these lines:

“I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering. . . . The lesson should be constantly enforced that, though the people support the government, the government should not support the people.”

We’ve moved some distance past that attitude in the last 132 years. Helping the old, the young, the disabled, the sick and others who can’t help themselves seems to fit with the whole “life, liberty and the pursuit of happiness” vision the Founding Fathers also laid out.

In some areas, of course, that requires more than individual concern. It requires institutional intervention.

Like with, say, a practice that cripples democracy. A practice that renders millions of votes — the foundation of democracy — meaningless.

For something like that, you take it to the top, to the Supreme Court, where the ultimate Constitutional arbiter can say no, that’s wrong — and since the people who perpetrated the wrong aren’t going to right it, the Court on behalf of the American people will.

Or, alternatively, the court could say yes, it’s a problem. It’s just not our problem. Go back to bed.

And maybe drift off to sleep listening to Phil Ochs.

David Hinckley wrote for the New York Daily News for 35 years. Now he drives his wife crazy by randomly quoting Bob Dylan and “Casablanca.”

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