Tag Archives: gerrymandering

A Cure For Gerrymandering?

I recently received a provocative email from James Allison, a retired Professor of Psychology, suggesting an approach to the elimination of gerrymandering that I had never contemplated.

After noting the Supreme Court’s unconscionable refusal to find extreme gerrymandering a constitutional violation (ruling 5/4 that partisan gerrymandering was a “political question” best left to the political process!), Allison quoted a recent proposal for just such a political solution.

In a recent op-ed in the Washington Post, Lee Hamilton, William S. Cohen and Alton Frye served notice: Although partisan gerrymanders may lie beyond the reformist reach of federal courts, and beyond the conscience of gerrymandering statehouse legislators, they are well within the grasp of Congress (July 17, 2020). Specifically, the House can “refuse to seat a state delegation achieved through excessive gerrymandering.” They propose to gauge the amount of gerrymandering in terms of the difference between the number of districts won by each party and its share of the statewide popular vote. They take the example of North Carolina’s 2018 elections, where Republicans won 50% of the popular vote for House members, but 77% of the state’s 13 seats. And the gerrymandering authors of those maps came right out and confessed proudly that their motive was to guarantee their party’s supermajority control.

The constitutional basis for direct Congressional oversight is in Article 1, Section 5, which says that “each House shall be the judge of the Elections, Returns and Qualifications of its own Members.” It has been used, albeit rarely, to exclude representatives chosen under questionable election procedures. And it was used after the Civil War against state intimidation of black voters and unconstitutional election laws.

There are a couple of obvious problems with this solution. One of those– political abuse of the power to deny delegations a seat–can probably be prevented by carefully crafted legislation. The other, as Allison points out, is how a determination is made that extreme gerrymandering has occurred.

For a number of years, the lack of a reliable “standard”–that is, a tested and dependable method for determining that disproportionate results were attributable to partisan redistricting and not simply to the voting sentiments of constituents–was the Supreme Court’s excuse for not addressing the issue. In the most recent case, however, that excuse no longer applied; in Rucho v. Common Cause, the Court was supplied with statistical tests developed by scholars for just that purpose. One test–called the “efficiency gap” was based on a calculation of “wasted votes.”  Wasted’ votes are those cast for a losing candidate or for a winning candidate beyond what he or she needed — divided by the total number of votes cast.

I personally prefer the tests developed by Sam Wang at Princeton. Be that as it may, there are now indisputably accurate statistical tests available to determine whether the number of votes cast translate fairly into the number of seats won.

Allison cites Robert X. Browning and Gary King, “Seats, Votes and Gerrymandering: Estimating Representation and Bias in State Legislative Redistricting.” Law and Policy, Vol. 9, No. 3, July, 1987 for the proposition that this approach to determining the fairness of electoral results isn’t new. I have personally done a fair amount of research into partisan redistricting, and written a couple of academic articles on the subject, and I can confirm the accuracy of this assertion.

The virtue of this approach, as Allison notes, is that– if adopted by Congress– its potential threat alone could create a powerful incentive toward nationwide redistricting reform.

If America truly cares about fair and equal representation–an open question in a country that makes it hard rather than easy to cast a ballot–this is an approach worth considering. It should be one more agenda item to be taken up by a (fingers crossed!) Democratic House and Senate.

 

 

 

 

What Really Matters?

Assuming the accuracy of recent polling, even people who don’t follow politics or the news with the sort of intensity characteristic of people who comment on this blog have come to recognize that President Trump is insane.

The crazy tweets, the babbling, “word salad” responses to even soft-ball questions from Faux News, the cringe-worthy, extended defense of his wobbly descent down the ramp at West Point, and most astonishing (at least to me) his apparent belief that if we just don’t test people, the Coronavirus will magically go away–are finally taking their toll.

My own response to what I see right now might properly be labeled bipolar: on the one hand, I am terrified of Democratic complacency. This pathetic ignoramus won once–it could happen again. There is still a hard core of voters who respond to his racism and share his overwhelming sense of grievance. On the other hand, polling–both state and national–reflects widespread disapproval; credible media outlets have taken to calling lies, lies (not just “assertions for which there is no evidence”) and previously reliable Republican constituencies are forming pro-Biden PACs. (The Lincoln Group–the first such effort–is producing and airing some of the most devastating–and accurate–political ads.)

So… my thoughts have turned to the massive clean-up job that will await the Democrats if–as I devoutly hope–November delivers both the White House and the Senate.

That cleanup is by no means assured. Universal detestation of Trump has unified a party that is famous for its lack of unity. (Who was it who said “I don’t belong to any organized political party; I’m a Democrat”?) With victory will come the inevitable fractures between the moderates, progressives and leftwing factions of the party.

In the House, I have some confidence that Nancy Pelosi can avoid truly dangerous schisms; the Senate will be dicier, and if Moscow Mitch is re-elected, he can still do enormous damage as Minority Leader.

It’s all very uncertain, and that uncertainty is made worse by the fact that there is considerable ambiguity about what optimum “repairs”–both structural and policy– should look like. Some examples:

  • The federal courts. It’s not just the Supreme Court.  McConnell has managed to put 200 rightwing ideologues on the federal bench, a number of whom have been rated “unqualified” by the ABA. There are a number of proposed “fixes”–from expanding the number of judges to pursuing impeachment against those who engage in the most egregious misconduct. Whatever course of action is taken, returning the courts to the status of impartial arbiters should be a priority.
  • Other structural issues that cry out for attention sooner than later include gerrymandering, the filibuster, money in politics and the Electoral College. (Whether the Electoral College can ever be fixed–either by the Popular Vote Compact or Constitutional Amendment is a “known unknown.”)
  • Repairing the incredible amount of damage done by Trump’s Mafiosa-like cabinet–especially the savage assault on environmental protections by the procession of fossil fuel lobbyists who’ve run the EPA, and Betsy DeVos’ fundamentalist attacks on the very concept of public education–also requires immediate attention.
  • Repairing America’s reputation abroad–restoring our relationships with allies, signaling that yes, America had a psychotic break, but we’re recovering–is critical. We need to rejoin the alliances Trump discarded, reaffirm our commitment to NATO, etc.,etc. Fortunately, foreign policy has been Biden’s strong suit.
  • Attacking our appalling economic inequality by raising both taxes on the rich and the minimum wage.
  • On the policy front, it is long past time for comprehensive immigration reform–not just the immediate cessation of horrendous ICE practices under Trump, but a sweeping revision of immigration policy that discards the racism that has characterized it.
  • It is equally past time to ensure that all Americans have access to healthcare, whether that is via a public option or single payer. (And maybe we should reconstitute that pandemic task force.)
  • Then there’s our crumbling infrastructure. And the elimination of billions of dollars in subsidies for fossil fuel interests. And a long, hard look at farm subsidies (and who’s getting them.) And in the (highly unlikely) world of my dreams, beginning to dismantle and “defund” the military-industrial complex Eisenhower warned us about.

I bet you all can add to this daunting list…..

Unlike culture-war quarrels about who’s using what restroom, or whether women should be able to control their own reproduction, these are the issues that really matter.

These are the issues that define–or defy–assertions of American “greatness.”

 

 

When We Talk About “Systems” And “Structures”

Speaking of communication, as I did yesterday–Sometimes, it’s a good idea to define your terms.

I’m as guilty as anyone–I sometimes use terms without stopping to specify what I mean. In the interests of clarity, today I’m defining three structural labels that I use frequently–terms that identify aspects of America’s political environment that it’s past time to revisit and revise.

Federalism

Federalism is the name given to America’s division of authority among local, state and federal levels of government. That division recognizes realities of governance: state and federal governments have no interest in handing out zoning permits or policing domestic violence disputes, to cite just two examples. Increasingly, however, many original assignments of responsibility are no longer workable. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, it’s an invitation to chaos and misconduct.
Federalism also facilitates assertions of state sovereignty where there really is none. Federal highway dollars are conditioned on state compliance with federally mandated speed limits, and similar “strings” are attached to almost all of the federal funding that cities and states rely upon. There are also an increasing number of issues, including climate change and pandemics, that must be addressed globally.

Businesses need uniformity in state laws in order to operate efficiently across state lines. Problems with acid rain can’t be solved by municipal ordinance. The internet cannot be controlled by a state legislature–or even by Congress. Even in law enforcement, generally considered the most local of issues, multistate criminal enterprises justify an increased federal presence.
 
The world has changed since the Constitution was drafted. Today, where should authority for governmental responsibilities reside? What should federalism mean in the age of technological connectivity and globalism?

Home Rule

Despite the existence of an Indiana statute labeled “Home Rule,” efforts at self-government by Indiana municipalities are routinely pre-empted by the Indiana Legislature. Just in the past few years, lawmakers have prevented local governments from restricting the use of disposable plastic bags and dictated what modes of public transit cities are permitted to use and tax themselves for. In a particularly ironic ruling, a Judge found that the state’s Home Rule statute itself blocked Ft. Wayne’s enforcement of a “good government” ordinance intended to restrict “pay for play” politics. The ordinance would have limited the amount of money owners of a company could give elected officials and still bid on city contracts.

In Indiana, the absence of genuine home rule means that decisions affecting residents of urban areas are routinely made by representatives of suburban and especially rural populations (see gerrymandering), whose grasp of the challenges and realities faced by elected officials in metropolitan areas is limited, at best.

Indiana is not unique. The Brookings Institution has described the extent to which state laws preempt local control over public health, economic, environmental, and social justice policy solutions. In 2019, state lawmakers made it illegal for locally-elected officials to enact a plastic bag ban in Tennessee, raise revenues in Oregon, regulate e-cigarettes in Arkansas, establish minimum wages in North Dakota, protect county residents from water and air pollution produced by animal feedlots in Missouri, or protect immigrants from unjust incarceration in Florida.
 
There are clearly issues that should be decided at the state or federal level. (See Federalism) Policy debates should center on what those issues are, and state-level lawmakers should to allow local governments to make the decisions that are properly local. Right now, they can’t.
  

Gerrymandering

Every ten years, the Constitution requires that a census be taken and the results used to remedy population discrepancies in the succeeding year’s congressional redistricting.

In our federalist system, redistricting is the responsibility of state legislatures. Gerrymandering, or partisan redistricting, occurs when the party that controls a statehouse manipulates district lines to be as favorable as possible to its own electoral prospects. “Packing” creates districts with supermajorities of the opposing party; “cracking” distributes members of the opposing party among several districts to ensure that it doesn’t have a majority in any of them; and “tacking” expands the boundaries of a district to include a desirable group from a neighboring district.

Partisan redistricting takes its name from then-governor of Massachusetts Elbridge Gerry.

Studies have tied gerrymandering to the advantages of incumbency and to partisan rigidity, but by far its most pernicious effect has been the creation of hundreds of Congressional seats that are safe for one party. The resulting lack of competitiveness reduces the incentive to vote or otherwise participate in the political process, because the winner of the district’s dominant party primary is guaranteed to win the general election. Primary voters tend to be more ideologically rigid, and as a result, candidates in safe districts are significantly more likely to run toward the extremes of their respective parties. Gerrymandering is thus a major contributor to partisan polarization.

Thanks to the way gerrymandered districts have been drawn in Indiana, a majority of policymakers in the Statehouse represent predominantly rural areas. As a consequence, state distribution formulas that allocate funding for roads and education significantly favor rural areas over urban ones, and members of Indiana’s General Assembly are more responsive to rural than urban concerns.

When I use these words, this is what I mean.

ALEC’s Priority: Gerrymandering

One of the many problems exacerbated by the loss of local journalism is the increasing nationalization of American politics. Those who follow political news are focused almost exclusively on Washington, and that focus has only intensified since 2016. If there is one thing Donald Trump is good at (and it is the only thing), it is sucking the air out of the newsroom. He’s like the wreck by the side of the road that you can’t help rubbernecking.

But we ignore state politics at our peril.

Donald Trump occupies the Oval Office because the Republican Party has been punching above its weight for a number of years. The GOP  has been able to win elections not because it can claim majority status, but because it has been able to game the system at the state level, primarily through gerrymandering and voter suppression.

And these efforts have been aided and abetted by ALEC.

ALEC–the American Legislative Exchange Council–is a powerful (and secretive) conservative organization. It is best known for preparing “model” bills favorable to its corporate members, bills that more often than not are introduced–unaltered– by conservative state legislators. ALEC has been incredibly successful in getting these measure passed, and the organization has shaped legislation in policy areas ranging from health care (undercutting the Affordable Care Act) to criminal justice (promoting private prisons). It has worked to lower taxes, eliminate environmental regulations, quash unions, and protect corporations from lawsuits, and it depends upon Republicans to achieve its aims.

So the organization’s current priority is gerrymandering.

In the early August heat, nearly 200 Republican lawmakers gathered in an Austin, Texas, hotel to learn about what one panelist described as a “political adult bloodsport.” The matter at hand — gerrymandering — could lock in Republican power in the states for another decade if successfully carried out again in 2021.

This meeting was evidently a bit less secretive than usual, since reporters were able to attend the sessions on gerrymandering. One was even able to record it.

 This unprecedented level of reporting on the panel uncovered the tactics conservatives plan to employ as they seek to maintain the Republican hold on state legislatures across the country in the crucial redistricting wars to come….

The conservative experts gave attendees a range of tips on how to approach gerrymandering, from legislative actions to legal preparedness. The panelists scoffed at the idea of appointing independent commissions in states to draw districts, a solution to partisan gerrymandering gaining traction in some states, instead urging state lawmakers to secure as much control over the process as possible. One panelist suggested Republican lawmakers work with black and Latino lawmakers to pack minority voters into districts, and another urged them to exclude noncitizens from the population numbers used to determine districts, a move that would dramatically redistribute power away from blue areas. Yet, ALEC also warned state lawmakers to be careful — to avoid using the word “gerrymander” and drawing lines too heavily based on race.

As the linked article points out, other conservative organizations may be focused on the federal government, but ALEC understands that the key to power is at the state level– and that the key to maintaining that power is redistricting.

ALEC’s ultimate goal is to have more influence on state lawmakers than the lawmakers’ voters.

They want people to listen to them and not their voters, and the way they do that is by creating these gerrymandered districts so legislators don’t have to address the concerns of their district.

Gerrymandering does more than skew lawmaking at the state level, of course–it results in unrepresentative, “safe” Congressional districts that send disproportionate numbers of Republicans to Congress. Democrats win more votes; Republicans win more seats.In House races in 2012, 1.7 million more votes were cast for Democrats than for Republicans, but Republicans came away with thirty-three more congressional seats than the Democrats. Some of this is due to systemic issues, but much of it is due to gerrymandering.

After the last census, Republicans engaged in a national gerrymandering campaign that was so effective, it put Democrats at a disadvantage for a decade.

That disadvantage gave us the Tea Party and lots of laws written by ALEC .

The Deep State

Since Trump became President (or more accurately, took up residence in the White House), we’ve heard repeated accusations about the so-called “deep state.” The phrase is meant to denigrate government workers, and it has a lot in common with  other rhetoric employed by this administration, which labels immigrants “rapists and murderers,” Islamic citizens “terrorists,” and whistleblowers “traitors.”

It’s all shorthand for “here are people to fear and hate.”

Given the lack of precision with which Trump employs language, I initially assumed that pretty much any civil servant would meet his definition of the “deep state.” But over at Talking Points Memo, Josh Marshall did a “deep dive” into the term–its accuracy (if any) and the identity of the presumably nefarious deep staters.

The phrase “deep state” originally comes from Turkey, where a “deep state” run by the military and security services allowed democratic politics to operate within prescribed bounds — but no further. The real government wasn’t the president or prime minister of the day but this “deep state.” It was autonomous and dominant and self-perpetuating.

In the first weeks of the Trump administration this phrase was taken up by the President and his entourage and applied to the U.S. Over three years it has become the catch-all term for unnamed enemies of the President plotting against him from within the federal bureaucracy.

Although–surprise!–here was no evil cabal lurking within the federal bureaucracy, Marshall and his reporters discovered something no less troubling.

They called what they found the “Conservative Deep State.” It wasn’t composed of shadowy forces motivated by conspiratorial theories, as the term might suggest. In fact, it was all out in the open.

We are talking about a dense network of right-wing lobbies, pressure groups, nurseries of political talent and prefab legislation, well-funded organizations usually operating at the state level which collectively create a strong rightward tilt in American governance. Elections remain critical. But they are contests on playing fields that are staked out, tilted and furrowed by organizing and money between elections.

Why is it, as parties frequently exchange the presidency and control of Congress, that state laws and regulations on everything from consumer protection to labor rights to voting seem to tilt steadily to the right? Why are Republicans so successful at gerrymandering and holding state legislative chambers?

The answer is this deep network. And you already know some of the names: The Koch Network, The American Legislative Exchange Council, The Federalist Society. Many others operate just as effectively, just below the radar.

There are certainly center-left analogs to all these groups, but none have managed to recreate the same levels of organization, funding or success that the Conservative Deep State enjoys today.

The operation of these networks, more than anything else, explains why Republicans control far more state governments than we would expect from their numbers, and why Americans can’t seem to enact policies that, according to survey research, enjoy overwhelming support.

Give credit where credit is due: the GOP is far, far more disciplined than the Democratic Party.  (The reasons are a subject for a different post.) That discipline allows them to do more with less.

The linked article was first in a series of reports on aspects of the Conservative Deep State.

Earlier this year we decided to publish a series on this topic — to commission a series of originally reported pieces on particular parts of the Conservative Deep State, how it functions, what it does, how it not only wins elections and helps pass laws but creates a right-wing ballast anchoring national and, even more, state and local politics on the right, even as public opinion on many issues shifts in the opposite direction.

As I read the linked article and those that followed, I kept thinking of The Purloined Letter, by Edgar Allen Poe, where the object of the detective’s search was hidden in plain sight.

It turns out that, despite the name, the “Deep State” isn’t very deep at all. It’s right in front of us–subverting democracy.