Another Look At Gerrymandering

This week, the Supreme Court will hear oral arguments in an important gerrymandering case on appeal from Wisconsin. Regular readers are undoubtedly tired of my posts about gerrymandering, but this seems an apt time to share remarks I recently made to the Washington Township Democratic Club, summarizing the issues.

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I’ve always believed that gerrymandering is a frontal assault on democracy, but a recent electoral analysis from the Cook Report really brought home the extent of that assault: one out of twenty Americans currently lives in a competitive Congressional District.

Think about that for a minute.

How did we get to a place where—as Common Cause puts it—legislators are choosing their voters rather than the other way around? And what can we do about it?

Let me address three aspects of our current situation: first, a brief recap of the effects of partisan redistricting;  second, an even briefer reference to the academic literature on the subject; and finally, the possibility that an upcoming Supreme Court case will provide a legal remedy.

First, a recap:

As we all know, whichever party holds a majority in the statehouse in the year following the census wins the privilege of drawing maps that will control the political agenda for the state for the ensuing ten years.

1) the goal is to draw as many “safe” seats as possible–more for the party in charge, of course, but also for the minority party, because in order to retain control, the winners need to cram as many of the losers into as few districts as possible, and those districts are also safe. This process is sometimes called “cracking” and “packing.” We have engaged in this effort since the time of Vice-President Gerry, for whom the process is named –and he signed the Declaration of Independence!– but computers have made the process far, far more efficient.

2) Neighborhoods, cities, towns, townships–even precincts–are evaluated solely on the basis of voting history, and then broken up to meet the political needs of mapmakers. Numbers are what drive the results–not compactness of districts, not communities of interest, and certainly not democratic competitiveness. (I will point out that the numbers used for these calculations are previous votes—if we could get a significant number of people who haven’t previously voted to the polls, there would be far fewer safe seats.)

Some of the results of this partisan process are obvious:

1) The interests of cities, neighborhoods, etc., are less likely to be represented.

2) Safe districts create sloppy legislators: if you are guaranteed victory every election, it is hard to be motivated and interested, easy to become lazy and arrogant.

3) Party preoccupation with gerrymandering consumes an enormous amount of money and energy that could arguably be better directed.

4) Safe seats allow politicians to scuttle popular measures without fear of retribution: Milo Smith, for example, occupies a safe seat in Bartholomew County, and felt perfectly free to single-handedly kill redistricting reform last year.

5) Lack of competitiveness also makes it very difficult to trace campaign donations, since unopposed candidates send their unneeded money to those running in competitive districts. So when the folks with “Family Friendly Libraries” send a check to Rep. Censor, who is unopposed, he then sends it to Sen. MeToo, who is in a hot race; but Sen. MeToo’s campaign report shows only a contribution from Rep. Censor.

These are just a few of the more obvious effects of gerrymandering, and they are all worrisome. But there are two other consequences that deserve special attention, because they undermine the very foundations of democracy.

First, the lack of competitiveness breeds voter apathy and reduced political participation. Why get involved when the result is foreordained? Why donate to a sure loser? For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner? Why volunteer or vote?

It isn’t only voters who lack incentives for participation: it is very difficult to recruit credible candidates to run on the ticket of the “sure loser” party. As a result, in many of these races, even when there are competing candidates on the general election ballot, the reality is usually a “choice” between a heavily favored incumbent and a marginal candidate who offers no new ideas, no energy, and no genuine challenge. And in increasing numbers of statehouse districts, the incumbent or his chosen successor is unopposed even by a token candidate. Of the 100 seats in the Indiana House last November, all of which were on the ballot, 32 candidates ran unopposed.

We hear a lot about voter apathy, as if it were a moral deficiency of the voters. Allow me to suggest that it may be a highly rational response to noncompetitive politics. Watch those same “apathetic” folks at a local zoning hearing when a liquor store wants to go in down the street! Rational people save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness, those places often do not include the voting booth.

Second, and even more pernicious, gerrymandering has contributed to the polarization of American politics, and our current gridlock. When a district is safe for one party, the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is effectively the general election, the battle takes place among the party faithful, who also tend to be the most ideological of voters. So Republican incumbents will be challenged by the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they leave a powerful incentive for the incumbent to toe the line– to placate the most rigid elements of the party. Instead of the system working as intended, with both parties nominating folks they think will be most likely to attract support from a broad constituency, we get nominees who have been chosen by the most extreme voters on each side of the philosophical divide. Then we wonder why they can’t compromise and get the people’s business accomplished!

Until and unless we eliminate gerrymandering, whoever we send to Washington will by stymied by the intransigence and gridlock that is an inevitable consequence of the current system. And–perhaps even worse– reduced voter participation has significant implications for the legitimacy of government action. Is a Representative truly representative when he/she is elected by 10% or 20% of the voters in the district?

Eliminating gerrymandering won’t magically make all districts competitive. (Big Sort) But when I was doing research for an academic article on redistricting, I was stunned by the number of scholars who simply dismissed the role of redistricting in the creation of safe districts—they attributed the well-documented incumbency advantages to things like better fundraising and weak opponents. I hate to be snarky, but that’s what you get from people whose understanding of politics is entirely abstract, and divorced from real-world experience. Of course incumbents raise more money and have weak opponents—it’s because they have safe seats. File under “duh.” (Reading those articles reminded me of Lee Hamilton’s remark—I think it was in the wake of Citizens United –to the effect that the Supreme Court could do with fewer Harvard Law graduates and more Justices who had once been county sheriffs….)

Interestingly, I found one of the best and most complete reviews of recent scholarly literature on the effects of partisan redistricting in an amicus brief filed by Thomas Mann and Norman Orenstein in the case of Harris v. Arizona Redistricting Commission. Mann is a Democrat and Orenstein is—or at least was—a Republican; they are both political scientists and they’ve written extensively about redistricting. In the brief, they cited to studies that tied redistricting to the advantages of incumbency, and they also made an interesting point that I’d not previously considered: the reliance by House candidates upon maps drawn by state-level politicians operates to reinforce what they described as “partisan rigidity.” (If you want to see how that works, I recommend Ratfucked, a recent and very informative book that documents the Republicans’ nationwide gerrymander in 2010.)

Mann and Orenstein also cited to a really interesting article in which researchers investigated whether representatives elected from districts drawn by independent commissions are less partisan. This matters, because redistricting reform is unlikely to change state-level party dominance. We all know that even if Indiana reforms its redistricting practices, Republicans will continue to control the state, albeit probably not with today’s Super-Majority. This will still be a Red State. Would the Republicans elected from non-gerrymandered districts suddenly become less partisan? Surprisingly, the answer is yes. Here’s the conclusion of the scholars who researched that question.

“Contrary to the initial expectations of the authors, the evidence reviewed here suggests that politically independent redistricting seems to reduce partisanship in the voting behavior of congressional delegations from affected states in statistically significant ways.”

Changing redistricting practices through the political system is a pretty daunting task, as we’ve seen here in Indiana. So let me just conclude by addressing the prospects for a court-imposed solution.

As most of you know, the Court has refused to allow racially discriminatory redistricting. But it has declined to intervene in the handful of cases it has heard alleging partisan redistricting, for a couple of reasons.

In fact, the Court only narrowly held that claims of partisan gerrymandering are justiciable under the 14th Amendment’s Equal Protection Clause—four Justices would have ruled that gerrymandering is a “political question” and the Court shouldn’t even hear such challenges. Even the five Justices who agreed that the Court could properly intervene concluded that a discrepancy between the percentage of votes garnered by a political party and the number of seats that party ultimately won was insufficient to demonstrate both partisan purpose and effect.

The problem the Court identified was lack of a reliable standard or formula for determining when a district had been intentionally gerrymandered. The Court has held that plaintiffs must prove both discriminatory intent and discriminatory effect, and that “unconstitutional discrimination occurs only when an electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.”  Proving that requires a test that the Court can apply, and as of the last challenge heard by the Court, no such test had been developed.

Until now.

In “Partisan Gerrymandering and the Efficiency Gap,” two political science professors from the University of Chicago proposed a standard they call the “efficiency gap,” using the concept of “wasted votes.”  The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. “Wasted” votes are ballots that don’t contribute to victory for candidates; they may be lost votes cast for candidates who are defeated, or surplus votes cast for winning candidates in excess of what they needed to win. When a party gerrymanders a state, it tries to maximize the wasted votes for the opposing party while minimizing its own, and that produces an efficiency gap. In a state with perfect partisan symmetry and no gerrymandering, both parties would have the same number of wasted votes. As a matter of simple arithmetic, the efficiency gap is equal to a party’s undeserved seat share.

in Gill v.Whitford, Democrats are relying on the efficiency gap test to demonstrate gerrymandering in Wisconsin. The state has appealed from a judgment by a three-judge federal panel that applied the test, ruled that the maps were an unconstitutional gerrymander, and ordered the Wisconsin Legislature to redraw them.

If the Supreme Court agrees with that three-judge panel, we may finally have a tool to force State Legislatures to reform their redistricting practices. We shouldn’t kid ourselves that it will be easy; elected officials aren’t going to cheerfully relinquish the tools that have given them power. It will take civic pressure, political will and probably additional litigation.

But eventually, we might live in a country where more than one in twenty Americans has an actual legislative choice at the ballot box.

Thank you.

 

 

 

 

 

 

 

21 thoughts on “Another Look At Gerrymandering

  1. Indiana’s 4th district is notorious as one of the ‘most Republican’ ones anywhere.
    I’m wondering if, at primary season, Democrats should not just leave the Democratic primary ticket in a drawer and all of us vote in the Republican one. It was done in the South for a century. Of course, that gave them terrible government, but that’s where we are now in the 4th, so why not just go all the way with it?

  2. At one point, the district that I lived in was a few miles wide, and extended diagonally across the state for over a hundred miles.

    How anyone, political scientist or Harvard grad Supreme Court Justice, could look at that on a map and conclude that it wasn’t gerrymandered is beyond me.

  3. This is likely to be the most interesting case before SCOTUS this year. I anxiously await the decision.

  4. The Indianapolis Star today has an interesting but rather puny Indystar editorial on the “Indystar FORWARD INDIANA” page, “How to fix Indiana’s rigged voting system”. It clearly targets gerrymandering as the source of the problem. A very brief article as to be expected from the Star. If you want to see the true Gannett, Inc., owned Indianapolis Star’s support for “FORWARD INDIANA”; read the page one headliner, ‘NEXT DAVID DUKE’ in full. The fact that there is no question mark in the title tells me that Robert King wrote this as support FOR Matthew Heimbach rather than a warning against him and his organization.

    How can we possibly resolve the gerrymandering problem, controlling Republicans and Democrats from taking over areas to best suit their needs? A district should be a district; just as county lines are county lines and state lines are state lines. As “public servants”; our elected officials should be dealing with the problems of and support for the residents and businesses in their set districts. This country is basically a transient society today, ever-changing the makeup of all neighborhoods. Gerrymandering will never end and politicians will continue moving district outlines, disregarding the residents/constituents who give them their jobs and pay them with our tax dollars.

    But, again; read the ‘NEXT DAVID DUKE’ for the real answers to the problems of gerrymandering and the reason there appears to be no end in sight, meaning no resolution to the problem.

  5. The elephant or donkey in the room, take your pick, is that those hoping for the SCOTUS to rule against the practices in WI, is the same court that ruled in Citizens United, and we all know how well that served the Party…er, the country.

  6. Small correction. The arguments aren’t next week but instead will be held on the second day of the new term, Oct. 3.

  7. You use the term “citizen pressure”. It is a new one to me, but it is one to think about. Citizen pressure, as popular terminology, may not be tossed around much in citizen discourse, yet; but in a society that has lost political choice and has as its bottom line a zillion wasted votes and a high percentage of voters who realize their votes do not count, citizen pressure becomes the natural, the organic, next option, whether or not the citizens are acquainted with the term. The citizen goes to the street…and these days to the Internet…and to the phone…and to alternate truth and to fake news. Advocating radical ideas becomes another one of the options for expressing citizen pressure. And finally, citizen pressure grows–this too is organic and natural–into tactics like criminal damage, malicious trespass, malicious mischief, vandalism, and outright violence. Then what?

  8. As a regular reader I never get tired of your posts on gerrymandering or anything else. And the responses from your informed readers are a pleasure as well.

  9. ” It will take civic pressure, political will and probably additional litigation.”

    Larry; is Sheila’s copied and pasted statement above what you turned into “citizen pressure” and a totally negative issue regarding our “freedom of speech” and “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” as protected under the 1st Amendment?”

    “Advocating radical ideas becomes another one of the options for expressing citizen pressure. And finally, citizen pressure grows–this too is organic and natural–into tactics like criminal damage, malicious trespass, malicious mischief, vandalism, and outright violence. Then what?”

    The United States of America as a democracy, free from rule by Great Britain was a “radical idea” and one that we are now in danger of losing under the Trump administration if the current Congress does not regain it’s senses and return to “government of the people, by the people and for the people”. Gerrymandering is one step from enacting immanent domain to maintain control of which people they choose to work for rather than the people electing officials they choose to work for them.”

  10. As Professor Kennedy correctly points out, taking redistricting out of the direct hands of the party in control of the state legislature and putting it into the hands of a supposedly independent redistricting commission or panel (the reform that most states, which have acted on gerrymandering reform, have adopted) isn’t a guarantee that Repubs in Red States, like Indiana, won’t continue to control both houses of the legislature.

    A good example is here in the not-so-great Red State of Arizona in which, like Indiana, the Republicans currently control the Governorship, both houses of the Legislature by super-majorities, and most other state-wide elected positions.

    Yet in 2000, AZ voters passed a voter ballot initiative creating an Independent Redistricting Comm. comprised of 2 Dems, 2 Repubs, and a supposedly “independent” chair, to do the redistricting instead of the Legislature. The AZ Repubs in the Legislature didn’t and haven’t taken this affront to their stranglehold lightly. They have been fighting against it ever since 2000 by filing numerous state and federal law suits challenging the existence of the Independent Comm. and the maps it drew after the 2010 Census; so far without much direct success. (See the reference to the U.S.S.Ct. case of Harris v. AZ Redistricting Comm. in the Professor’s speech).

    Nonetheless, after the 2010 redistricting by the independent comm., 7 out of 9 of AZ’s congressional districts are still completely safe for the party that currently holds them.
    (http://www.fairvote.org/arizona_independent_redistricting_2016). And guess which party controls most of the “safe” districts (first 2 guesses don’t count).

    The problem here is that the Repub majority of voters in the Phoenix megapolis (i.e., Maricopa County, the home of that great American patriot and Trump favorite “Sheriff” Joe Apario — but in all fairness to AZ voters; Apario did lose the last election to a Demo) and some of the more rural areas is so great that it would be nearly impossible to create 9 competitive districts and still at least marginally try to abide by the other legal requirements for creating districts.

    Nonetheless, as evidenced by the AZ Repub’s continuing legal assault and challenges to everything the independent comm. does, taking redistricting out of the direct control of the party in control of the Legislature is fairer and more likely to result in competitive districts.

  11. Very informative as always.

    Gerrymandering is one of many forces pushing the country to a position of social instability as always happens when extremism calls the shots, which always happens as a result of one “side” becoming extreme. Gerrymandering is an important thing but not the only thing moving our culture towards extremism, my “side” is only and always right.

    They say “follow the money” and, sure enough, money is the source of this particular dysfunction. In the beginning it was media and entertainment money flowing to those who created anger and fear for a living. Of course the entertainers were only taking advantage of their victims but it turned out that no matter what the entainers said it resonated among authoritarians who see government as only the distribution of power which they believe themselves extraordinarily entitled to.

    Now liberal extremism seems the only effective response. Not a plan but a natural reaction to being pushed around.

    Now what?

  12. It is time for a court of equity to do what equity is charged to do, to wit: Fashion a remedy for a wrong the law does not redress. It is clear that gerrymandering does not only affect House districts but also overflows into races for senators, governors, presidents and other policital candidates for office. When despairing Democrats stay home because their House district’s results are pre-ordained, they elect Republicans to offices theoretically (but not in practice) that are not subject to the decennial count. This cancer on democracy (along with other politically-motivated measures designed to suppress voter turnout) contain the seeds of destruction of our democracy which, should it happen, will be the death knell of both parties. It is time for the court to quit kicking this can down the road on grounds it is political and thus beyond the reach of the court. Courts have both legal and equitable jurisdiction since the merger and it is time they exercise their equitable jurisdiction before the ship goes under for all of us.

  13. We should also consider corporations being people under the Bill of Rights and money being speech under the First Amendment. Both simply add to the efficiency of Ratfucked – and we are very close to a fascist oligarchy.

  14. Bill Groth, Ted Boehm and all–

    An inexcusable goof on my part. The argument is, indeed, October 3. Don’t know what I was thinking…

  15. a good cure for gerrymandering would be welcomed by the vast majority of Libertarians. We tend to run candidates in districts where, like Cuba, there is only one candidate. Our Citizen volunteer, who has almost no chance of winning, provides voters with an actual choice. And, where 2 party elections are close, the Libertarian vote may provide the edge to one candidate. BOTH BIGGER PARTIES will probably be against it because they don’t want competition, just like Hillary keeping the Libertarian off the Presidential Debates. Still, it will be interesting to watch!

  16. j.england; Libertarians do not have a vast majority, their scope of issues is very limited, they want to do away with much of the government, not improve it to help the American public. You are totally correct in your comments regarding areas (such as 88th District in Marion County and crossing the county line) having only one candidate (in the 88th, Bosma is currently sitting his 31st year in the House), giving voters no option. The wide range of issues covered in the presidential debates would have limited debating many issues as Libertarians and Green Party members used the limited program time for fewer issues, preventing many major issues from being discussed/debated at length as needed. They would have split the debates as they split the election; had the debate program time been increased, most people wouldn’t sit that long to hear arguments from a man who had limited information on issues and a woman who had been arrested for painting a bulldozer. This election was like no other in our history; maybe in other elections the Libertarians and Green Party candidates would have had something of value to add to the debates and the election…NOT in 2016.

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