By Ana Deckey (CMC ’22)
Partisan gerrymandering is a wily evil that distorts our democracy. However, in 2019, the Supreme Court ruled that the Constitution does not protect us from partisan gerrymandering and its anti-democratic effects. This ruling was handed down in Rucho et al v. Common Cause; in the case, citizens of Maryland and North Carolina argued their state governments acted unconstitutionally when they diluted their votes via partisan gerrymandering. The Court, however, found that no enumerated rights were violated and ruled Rucho nonjusticiable because the composition of electoral districts is an issue left to the states. In doing so, however, the Court failed to recognize that citizens’ rights are infringed when state mapmakers use citizens’ agglomerated data to disadvantage them in the electoral process. I argue that partisan gerrymandering violates our constitutional right to privacy when it entails using our personal data to predict our political preferences in order to draw maps that dilute our votes. If these abuses of our personal data are allowed to continue, our nation will remain blind to an issue that threatens the spirit of our democracy. As the 2020 census is tabulated and we prepare to redraw state electoral maps in 2021, we must revisit this abuse of our constitutional right to privacy and seek to remedy it for elections to come.
To recognize this violation, it is helpful to understand privacy as it was conceptualized by James Madison. According to Madison, property is defined by those things which humans may claim as their own and exclude others from accessing. However, Madison’s notion of property had a “larger and juster meaning.” His definition included not only physical belongings, but also “property in [her] opinions and the free communication of them,” and “equal property in the free use of [her] faculties and free choice of the objects on which to employ them.” Though today privacy is mostly understood as a right we can exercise over ourselves and our physical property, Madison’s thinking offers us an originalist understanding of a right to privacy that entails our opinions, thoughts, and political views.
The right to privacy, as understood by Madison, has in fact been increasingly recognized by the Supreme Court.In Griswold v. Connecticut (1965), the Supreme Court recognized our constitutional right to privacy for the first time. In the case, Justice William Orville Douglas, writing for the majority, argued that the Fourth Amendments’ protections against unreasonable search and seizure and the Fifth Amendments’ self-incrimination clause together create a “zone of privacy” in one’s home and personal life. Additionally, he cited the Ninth Amendment as supporting this right because it states that “the enumeration… of certain rights, shall not be construed to deny or disparage others retained by the people.” Further, he noted that the Fourteenth Amendment creates a mechanism to determine when the government is warranted in violating this zone of privacy. That is, when the state can demonstrate a “subordinating state interest which is compelling” or “necessary,” then the abridgment can be justified.
In Roe v. Wade (1973), the majority ruled that the right to privacy includes one’s right to an abortion, also citing (among others) the Fourth, Fifth, and Fourteenth Amendments in ascertaining this right. This ruling established that our zone of privacy evolves to incorporate technological advances, in this case, abortion. This case again specified that a “compelling state interest” is necessary in order to violate this constitutional right.
Most recently, the most essential case which affirmed that data is a modern form of property and thus included in this zone of privacy is Carpenter v. United States (2018). Carpenter established that because phone data had become “detailed, encyclopedic, and effortlessly compiled,” it was considered one’s property and could not be seized without due process of law as enumerated by the Fourth Amendment. However, the understanding of data as within our zone of privacy has yet to be applied under the Fourteenth Amendment’s due process clause.
These cases indicate that the Bill of Rights has a zone of privacy built into it. As shown in Griswold and Roe, the Fourteenth Amendment requires our privacy be protected so that our liberty and property are not arbitrarily imposed upon. The Court also affirmed in Carpenter that data as a modern form of property is included within the zone of privacy protected by the Fourth Amendment. The Court’s future interpretations must apply this understanding of data as modern property to their reading of the Fourteenth Amendment’s due process clause if we are to be protected from the malicious intent of partisan gerrymanderers.
In Rucho et al. v. Common Cause, state legislatures in both North Carolina and Maryland used citizens’ census data, voting registrations, as well as cellular data collected by third parties in order to draw maps that would dilute the votes of the opposing party’s constituency. While Carpenter would need to be extended beyond criminal cases to indict the use of third-party data in partisan gerrymandering, the use of census data is a clear violation of citizens’ rights. The personal information collected in the census “cannot be used against respondents by any government agency,” according to Title 13 of the U.S. Code. It should not follow that once this personal data is turned into agglomerated data sets, it can then be used against groups of citizens to harm their standing in elections. Supplying sophisticated mapping technologies with these data sets allows mapmakers to “predict a voter’s race with reasonable accuracy by using the voter’s name and the general racial composition of his or her neighborhood.” One data company, Civis Analytics, correctly predicted ninety-seven percent of contested races in the 2018 midterm elections. Predicting election outcomes is not illegal, but this startling level of accuracy indicates that our census and personal data are being used with partiality, and extremely effectively, to slight our standing in the democratic process.
America is founded on its deliberative democracy and the individual freedoms necessary to pursue that end. When citizens’ right to privacy is violated, the property they hold in their personal information and opinions is usurped and used against them to distort their democratic voice.
In delivering the majority opinion in Rucho, Chief Justice Roberts writes that the Founders were well aware of gerrymandering and deemed it a political question to be determined by state legislatures and checked by Congress. He details how George Washington and other Federalists accused Patrick Henry of attempting to gerrymander Virginia’s district maps in order to advantage his candidates over the Federalists’—particularly, James Madison. Despite Henry’s efforts, Madison won the election. Chief Justice Roberts points out that the Founders did not file suit nor threaten to take it up with the judiciary.
Chief Justice Roberts fails to note that new technologies make today’s gerrymandering irrefutably distinct from any case involving the Founding Fathers. This is a genuinely modern problem that was unimaginable to the Founders. Henry’s gerrymandering was not informed by data sets, citizens’ voting information, nor complex computer programs that allow mapmakers to protect their majorities with terrifying accuracy. In other words, Henry did not violate the privacy of citizens to inform his map-making, which helps explain why his attempt to gerrymander, while undemocratic, was neither effective nor unconstitutional in the way modern gerrymandering is.
Justice Kagan, in her dissent, argued that “the right to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives” were being violated. The Majority rejected Kagan’s view because if there is no constitutional right being violated then voting regulation must be left to the State legislatures. The Constitution posits no threshold regarding what partisan composition of electoral districts is fair and within our right to vote. Thus, while the vote dilution appeared to Kagan to violate rights, the Majority found that with no mention of partisan composition in the Constitution, her findings of right violations were arbitrary and failed to have textual support.
Regardless of which side of the Court is correct in this debate over voting rights, neither is grasping the issue at the heart of Rucho. This is not a voting rights case, it is a privacy rights case. I argue that the right being violated is that of a citizen’s right to privacy which is protected by the Fourteenth Amendment. It is only through access to census information and aggregate data on citizens that state mapmakers are able to gerrymander with such success. Without unconstitutionally violating our right to privacy, mapmakers would not be able to effectively predict and thus dilute our votes.
To be sure, when a compelling state interest can be identified, some abridgments of our right to privacy are warranted. For example, issuing search warrants can be justified because it serves the state’s interest in citizens’ safety, and requiring proof of vaccines to enroll students in public schools serves the state’s interest in public health. So what were these state governments’ compelling interests? According to Representative David Lewis, the state interest in the North Carolina case was that “electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” In Maryland, Governor Martin O’Malley unabashedly stated that the objective in gerrymandering was “to create a map that was more favorable for Democrats over the next ten years.” Increased partisan control blatantly fails to be a valid state objective because partisanship is a matter of personal opinion. Further, this objective could be pursued in ways that do not require such an intimate violation of individuals’ privacy; albeit, without citizens’ private data, partisan gerrymandering will practically be reverted to its earlier, less effective forms.
Data sets, such as the ones used in Maryland and North Carolina, are just the latest technology of electoral disenfranchisement. Literacy tests or land-owning requirements were once used as tools to serve this same anti-democratic end. Of course, some data on citizens must be used in order to plan the logistics of the electoral process, but this use of citizen information must be used impartially as it is when states use party registry to figure out how many ballot boxes they may need on election day. Using citizens’ information in order to disadvantage their standing in the electoral process is incompatible with a healthy democracy and is wholly unconstitutional. As the world modernizes and evolves, our protections for privacy must evolve with it.
