Tag Archives: voting rights

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.

 

 

 

 

 

 

 

Words Fail–Edition Number Zillion…

Every day, it seems, Americans are waking up to new expressions of punitive hatefulness erupting in state legislative chambers, mostly but certainly not exclusively in the South.

From The New Civil Rights Movement, we learn that

Led by Republican Speaker Tim Moore (photo), Republican House lawmakers in North Carolina have just passed a sweepingly broad anti-gay bill in a special session called just for this one bill. The bill will void all local nondiscrimination ordinances. It will also mandate that all public accommodations ordinances, all minimum wage ordinances, and all employment discrimination ordinances come only from the General Assembly – state lawmakers – effectively banning any localities from protecting citizens in any of these areas.

The bill, HB 2, passed by a huge margin, 83-24, after less than three hours of debate and just 30 minutes of public comment.

HB 2 now heads to the Senate, who will take it up immediately.

It is expected to pass and Governor Pat McCrory, who called for the bill, is fully expected to sign it.

So–as long as we are striking back at LGBT citizens who have had the nerve to demand equal treatment before the law and the right to use a gender-identity-appropriate bathroom–let’s also pile on and punish the working poor, minorities, women….It is really hard to fathom what could impel an elected official to vote for a measure this hateful.

It’s worth noting that this North Carolina eruption is yet another illustration of the growing divide between urban and rural Americans; this special legislative session is a response to the passage of a nondiscrimination measure in Charlotte. In North Carolina–like other states, including Indiana–rural areas wield disproportionate influence in the statehouse.

It may also be that these lawmakers feel free to act on their bigotries because they are confident they will not have to defend their votes in a democratic election. After all, it can’t be coincidental that North Carolina is the most gerrymandered state in the country, and is currently embroiled in litigation over that fact, and over the state’s other assaults on voting rights.

I refuse to believe that this measure is an accurate reflection of North Carolina voter sentiment. This despicable behavior is what you get when the legislators choose their voters, rather than the other way around.

A Constitutional Ethic

At this point in the semester, my undergraduate class is encountering a concept called “the constitutional ethic.” (The term is an organizing theme of the textbook we are using, written by yours truly and colleague from Minnesota.)

So what do we mean by “constitutional ethic”? How does such an ethic differ from our usual understanding of ethical behaviors–i.e., honesty, truthfulness, adherence to the law? If the constitutional ethic is “over and above” personal ethics, in what way is it more or different? And how can I describe that difference in language that is accessible to undergraduates?

Here’s what I plan to explain to my class:

As we’ve been discussing, the Constitution is the basis of America’s legal system; as it has operated over the years, it has shaped a distinctive value system and legal culture, a framework within which we make policy and operate our common institutions. Elected and appointed officials take an oath to uphold that constitutional system, an oath that implicitly obliges them to understand its most basic and important characteristics. (For example, policymakers need to understand not just that we are a government of checks and balances, but why our system was constructed that way.)

At its most basic, adherence to the Constitutional Ethic requires public officials to act in ways that are consistent with these basic systemic structures, and to avoid acting in ways that would undermine them.

Some examples might “flesh out” the concept.

Respect for due process guarantees would seem to rule out drone strikes on persons–especially but not exclusively Americans–who have not been afforded legal process to determine guilt or innocence.

Respect for government’s obligation to treat citizens equally would seem to rule out efforts to marginalize GLBT people, or refuse them access to the institutional benefits enjoyed by heterosexual citizens.

Respect for one of our most fundamental rights–the right to vote, to participate equally in our democracy–imposes an ethical obligation to refrain from vote suppression tactics of the sort we saw during the last election.

Respect for the principle of free speech, protected by the First Amendment, imposes an ethical obligation to refrain from attempts to censor ideas of which we disapprove.

It really isn’t complicated. It’s just increasingly rare.