P4P Conversation with David Daley, author of RATF**KED

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On Sunday, June 4th, the Politics for the People book club spent an hour in conversation with David Daley, the author of RATF**KED: The True Story Behind the Secret Plan to Steal America’s Democracy.  The book outlines the Republican Party campaign begun after the 2008 Presidential election, called REDMAP, to (rather inexpensively) win a sufficient number of state legislatures to control the redistricting process after the 2010 census (the redrawing of district lines is done state by state every 10 years, following each census).  It is a modern day whodunnit, and examines one of the myriad ways in which our political process is currently run by the political parties at the expense of the American people.

You can listen to the full recording of our conversation at the end of this post, or take a look at the highlights below.

Our first audio clip is my introduction of David Daley and includes an overview of the book and how the Republican Party took the dark art of gerrymandering to a whole new level.  He calls is the “…biggest heist in American electoral political history”.  I ask David if gerrymandering is fundamentally a controversy and fight about which party is going to win over the other.  If so, why should independents be concerned about leveling the playing field between Republicans and Democrats?  It is a rich exchange. Have a listen.

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Politics for the People book club members then joined the conversation with their questions. Tiani Coleman, the President of New Hampshire Independent Voters shared that in reading the book, “…we were able to see how gerrymandered safe districts have created a very partisan, polarized House, where many voters don’t have a real voice because their vote makes no difference, and where the outcome is not reflective of the majority will of the voters.  Do you agree with Larry Lessig that “equality” or lack thereof, is the flaw?  And do you think creating more competitive districts will fully provide that equality to all voters?”  Give a listen to their conversation where David shares his thoughts on open primaries and the importance of competition:

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PJ Steiner, a leader with the Utah League of Independent Voters, talked about efforts he is involved with to reform redistricting.  They discuss the issue of independent commissions.  You can hear their exchange here:

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Dr. Jessie Fields and David talk about how redistricting and gerrymandering impact the African American community, talking about the recent Supreme Court decision in NC.  Jessie expresses concern about the way the African American community is taken for granted by the Democratic Party.  She asks how can we give more power and weight to the voter?  Is the 14th Amendment relative to redistricting reform?  You can listen to their conversation here:

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Phil Leech, a member of Voters Not Politicians in Michigan talked about how fortunate he feels that they have the right to citizen initiative and referendum in Michigan where they are actively pursuing redistricting reform.  He asked David to speak about the prospects for fair redistricting on the national level given that so many states do not have an initiative process.  David shares that there is no easy answer even though “…voters of all stripes and parties” support reform.  Listen here:

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Julie Leek and David talked about Julie’s experience at a civics forum at her home church in NC and the hesitancy of a state Supreme Court Judge to address the issue.  You can hear their exchange here:

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Our final question came from Independent Voting’s general counsel, Harry Kresky.  Harry raised concerns with the Supreme Court’s ruling n the North Carolina case.  It seemed the court was evaluating whether the lines drawn went further than necessary to get the “desired outcome”.  At what point does the judiciary itself become implicated in gerrymandering if outcome is the standard?  Listen to Harry and David’s fascinating exchange here:

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You can listen to the entire Politics for the People book club conversation with David Daley:

 

Stay Tuned

we will announcing our next

Politics for the People

Book Club Selection Soon

 

 

 

Reader’s Forum–Dave Franklin and Call Tonight

This is our last Reader’s Forum before we go live tonight at 7 pm EST in conversation with David Daley, the author of RATF**KED: The True Story Behind the Secret Plan to Steal America’s Democracy.  All the call in details are below.

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My introduction to independent politics began in 1992 with Dr. Lenora Fulani’s independent Presidential campaign. I worked on the campaign and was asked to run for Congress here in California.  I ran on the “Peace and Freedom” party ticket. This party was basically an old style left party that didn’t do much. They were pretty upset with me for running.  The only thing they liked about me was the fact I was a union members and shop steward. Otherwise, I was persona non grata. Before this, I was a democrat who realized that the party didn’t really respond to  working people’s issues.

Dr. Fulani’s campaign raised the lack of fairness in our elections. Throughout the years I have continued to support independent politics and Independent Voting’s various initiatives.  Here is CA, I have been active with Independent Voice, an association of independent voters focused on moving control of our elections from the political parties to the voters.  We were part of the coalitions that worked to pass nonpartisan elections in 2010 and nonpartisan redistricting reform. There twin reforms have been critical in giving all of CA’s 4.7 million independent voters the opportunity to vote in the primaries, creating more competitive elections and a far more functional state legislature.   It is not sufficient to have fair redistricting unless we have fair elections where all voters can participate.

I found the story of RATF**KED very insightful, but perhaps with too many statistics.

The current use of computer software to create new districts is interesting. The Republican Party’s plan to use redistricting to take over is amazing in that it worked and was successful.Redistricting as a strategy has been around for a long time. Both parties used it to their advantage.It’s only with the invention of new software that has created an easier path for the strategy. It only makes stealing elections and stealing democracy a click or two away. If you can’t win an election outright, then redistrict your way to a win. Corruption still looks like corruption, in both parties.

Our current strategy at Independent Voting looks promising. Organizing independents who are ignored by both parties and the media and working for truly nonpartisan reforms that focus on empowering all voters.

Speaking of strategy, I highly recommend reading the new book, Refinery Town: Big Oil,  Big Money, and the Remaking of an American City, by Steve Early. This is the story of my town where I have lived for almost 40 years. The Green Party came to Richmond California in the early 2000’s. They organized the old fashioned way. Door-to door. Person-by person. The city of 100,000 is one the poorest in the bay area. Also the most diverse. Chevron, on the biggest oil companies has run the town for almost 100 years. The local politicians,mostly democrat’s have been paid off by Chevron for almost the same amount of time.

After 2-3 years of serious grass-roots organizing the Green Party ran a slate for mayor and city council that was elected. The new mayor, Gayle McLaughlin cleaned house and brought new and progressive leadership to our city. It was a deeply entrenched, deeply corrupted city. Bought and paid for by Chevron. Gayle brought in a new police chief from Fargo North Dakota , who also cleaned house. With the city near bankruptcy, she hired an new city manager. Now, 10 years later, Richmond has a experienced a turn-around. Poverty is still here, as is crime. But, now there are serious programs addressing these issues. Chevron is now ponying up it’s fair share to maintain these programs and the city of Richmond. For years they were able to find tax loopholes in the local taxes and exploit them

I am looking forward to our conversation with David Daley tonight.

Dave Franklin lives in CA and is a long time independent activist.

 

*Reminder*

Conference Call with David Daley

Author of RATF**KED

TONIGHT

Sunday, June 4th at 7 pm EST

Call: 641-715-3605
Pass code: 767775#

 

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Reader’s Forum—Al Bell

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Al Bell at 2017 National Conference of Independents

I was forced several times in reading Ratf**ked, by David Daley, to stop and reread the Preamble to the U.S. Constitution. It contains 52 of the most powerful words in the vast heritage that has brought us to this point in The Great American Experiment. The unprecedented We, the People… leads off this statement of vision, purpose, mission—and that foundation quietly emerges time and again throughout Mr. Daley’s book. It is an echo, as it were, of the point of the whole story.

Ideas generated by the current selection of the Politics4thePeople book club clearly demonstrate the value of exchanging ideas and hearing different voices, a key quality that powers the club. While there have been fewer posts (so far) on this selection than some in the past, their content is highly instructive and provides valuable insights that aid the rest of us in processing what the author is telling us.

Dr. Jessie Fields provided an excellent overview of the essence of the Republican Party’s successful campaign to gerrymander legislative districts at state and federal levels to enable the party and its candidates to select voters rather than the reverse. The responsible perpetrators express pride in what they have done. That mentality is a pathetic distortion of Americanism. It perverts everything we stand for.

Then, comes along Lou Hinman’s pointed commentary that makes explicit what haunts many of us in the independent voting movement: both parties have become cynical masters of political intrigue and gamesmanship by which they collaborate in crowding out any voices they do not wish to hear from We the People. Lou clearly unmasks the mutual game of chicken the major parties play in controlling our political process. As Mr. Daley points out, the Democratic party is belatedly tuning in to the power of Maptitude as a means of unraveling as much of the Republican party’s advantage as possible. The game remains the same; just the actors change.

The bottom line here is that the Democratic and Republican parties, over many years, have jointly shanghaied our democratic republic. While they properly share the blame, the Republican party currently owns the front lines, paid for in cash.

Oh, one more question. Why, exactly, did We the People let them do it? That is a question for another dialogue.

I would be negligent in failing to note the significance of Arizona in this tale of woe as told by the author. Citizens established Arizona’s Redistricting Commission by initiative. State Republican leadership sought to eliminate it via court action and lost at the Supreme Court. More recently, our Republican Legislature enacted laws to seriously impede citizen initiatives and referenda. Citizens are now organizing, seeking to reverse that action. Mr. Daley describes the earlier challenges faced in the Arizona redistricting process with considerable insight. It was not flawless, but it is easy to envision a significantly more political—and Republican dominated—outcome had the Legislature remained in charge of the process. Politics will always be a factor. The real question is, can such deliberations at least avoid political considerations as the sole driver? The Arizona example says yes. So far.

I will come to our author’s defense for focusing on the Republican party in this sense. The GOP has initiated a new level of political weaponry, escalating quickly from muskets to machineguns. Whether Mr. Daley has it right or not about the Democratic party’s leadership default in this case, he reveals the new weapons of political war that currently victimize our nation. That naturally leads to the question of what to do about it.

The author suggests seven strategies to reverse or at least mitigate this cynical onslaught against our electoral processes. They include:

  1. Support Democratic efforts to recapture enough legislative seats by 2020 to enable them to lead a “permanent gerrymandering disarmament plan”. In other words, lead toward the high ground, don’t just recapture lost ground.
  2. Seek establishment of even more independent redistricting committees at state levels than now exist.
  3. Wherever possible, seek initiatives to reverse gerrymandering practices.
  4. Continue to push for Supreme Court decisions that impose controls on gerrymandering and reverse the most egregious cases of it (now an active arena; see the current North Carolina case).
  5. Experiment in at least one state with multi-member districts to defuse the partisan control mechanisms.
  6. Enrage and engage more voters in supporting redistricting reforms to enfranchise voters instead of parties.
  7. Aggressively motivate progressive voters to vote in mid-term elections in contrast to historic minimum turnouts in such elections to wrest control from the Republican vote gathering machine.

None of these is easy, nor are they feasible everywhere. However, chinks in the armor can be achieved one initiative, one state, one city, and one court case at a time. It will take a long time, certainly more than anyone aggrieved by the current system would prefer. Mr. Daley offers ample motivation to start down that path.

Another tactic strikes me as having value in reinforcing his suggestions. It consists of a relentless effort by many of the public interest organizations and their memberships in the U.S. to conduct media, public education, and political campaigns at whatever level or levels they may operate. Campaign messages could make any or all of the following points. It would make sense to target Democratic and Republican transgressions similarly, wherever they occur.

  1. Depriving any qualified voter from exercising his/her franchise is unconstitutional and cynically anti-American. It is an insult to the very foundation of our nation. It blatantly denigrates the sacrifices of the more than 1.3 million Americans whose lives have been lost in defending our right to self-governance under the Constitution.
  2. Perpetrators of the so-called RedMap system manifest a perverse rejection of the basic premise of our Constitution: that it belongs to all of us. They have a right to their opinions, but they have absolutely no standing to destroy the very foundation that underpins every citizen’s rights, including their own! They do not own our vote; we do. At least, so we thought.
  3. Spending dark money to intimidate candidates, structure legislative districts that cut citizens of any political persuasion out of an effective voice in electing our leaders, and imposing voting districts that advance this mentality, is cowardly behavior. It reflects a pathetic lack of confidence in the legitimacy of their positions and seeks, instead, to avoid challenges by neutering other voices. It is logically incomprehensible and solidly hypocritical for passionate believers in competitive free enterprise concepts, to throw obscene levels of money at arbitrarily suppressing the competition of ideas. There is a name for governance structured this way and democratic republic isn’t one of them.
  4. The RedMap system is a tool for destroying this nation and the governance it so desperately needs in these times of overwhelming division, complexity, rapidity of change, global challenges, uncertainty, technological breakthroughs, and all of their cumulative and profound social and economic implications. Intentional destruction of governance systems for essential dialogue and reasoned negotiation is irredeemably Anti-American.
  5. Disenfranchisement by any means is essentially a form of theft and extortion. It seeks to slice targeted Americans out of the governance process. It is anything but a legitimate source of pride.
  6. We often hear that “all is fair in love and war”. Many would readily add: “and in politics, too.”

No it isn’t.

Of course, politicians and their supporters, past and present, have demonstrated atrocious behaviors in politics. At some level, that will continue by Republicans and Democrats alike (see Mr. Hinman). Still, real American leaders set points beyond which they will not go. The stakes have become so great because of cumulative misfeasance, malfeasance and nonfeasance by both parties that it is time to talk openly and loudly about the price we are paying for their hypocritical behavior. If they will not, we must.

One can say many things about such behavior. It is fundamentally inexcusable. No amount of rationalizing doubletalk can explain it away. Those who perpetrate this approach to our governance structures are exhibiting unpatriotic behavior in the extreme. We must not “give a pass” to those who are numb to the needs of our nation and proud of disenfranchising their fellow citizens by playing clever games. Why would we allow them to hide behind their arrogant defenses? Let’s call them out for behaving as enemies of the people. We the People.

Reinforced by David Daley’s clear documentation, we cannot repeat his message too often and in too many places. Today it is the Republican party. Tomorrow, by its own admission, the Democratic party intends to storm down the same path. Thank you, David Daley, for bringing such a clear picture of this Anti-American swamp to our attention. Now it is up to us.

All of this is enough to make you want to be an independent voter! Hmmm.

Al Bell lives in Peoria, AZ and is an activist with Independent Voters for Arizona.

*Reminder*

Conference Call with David Daley

Author of RATF**KED

Sunday, June 4th at 7 pm EST

Call: 641-715-3605
Pass code: 767775#

 

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Reader’s Forum—Tiani Coleman

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In the book Ratf**ked:  The True Story Behind the Secret Plan to Steal America’s Democracy, by David Daley, we get behind-the-scenes insights into how we’ve arrived at such a partisan, polarized Congress, where the American People are its victims.  The book is a piece of investigative journalism, wherein we’re able to witness how the Republicans were able to more than counteract the Democratic wave of 2008; when Obama was elected in 2008, Republicans were afraid that demographic trends, combined with Democratic control of the White House and both chambers of Congress would leave Republicans in the dust.  But Republicans hatched a plan, called REDMAP, that changed everything for at least a decade, if not more.   While all eyes were on Washington, Republicans (through the Republican State Leadership Committee – RSLC) were raising a lot of big money and putting it into relatively inexpensive, targeted state house, senate and governor races, knowing that the Census of 2010 would bring on new redistricting, and if they could get control – at the state level — of redistricting (the reapportionment and drawing of boundaries for U.S. House Districts), they could regain control of Congress.  It worked beyond their wildest dreams, even with unintended consequences.

The book provides example after example, of how this was done.   In PA, for example, in 2008, their U.S. House seats were 12-7 for Democrats.  In 2010, it flipped 12-7 for Republicans, and the Republican majority grew to 13-5 in 2012.  But in 2012, “Obama won 52% of the vote [in PA]; Democratic house candidates won 51 percent of the vote[,but only] . . . 28% of the seats.”  In NC, Democrats entered the 2012 election with 7/13 seats, and even though they won 50.6% of the votes, the Republicans took 9/13 seats, which became 10/13 in 2014.  This was done across the country by using the Voting Rights Act as a reason to pack minorities into the same district.  Some people think that’s just the way it is, with minorities and Democrats in higher population centers, but when you look at the extremely crazy district lines, you recognize that it’s a very deliberate attempt at getting certain political outcomes by compacting the Democrats and spreading Republicans out among many low-Democrat districts.  It gave Democrats some ultra-safe Districts where they wouldn’t have to pay any attention to anyone other than their base, and it usually resulted in some Republican safe Districts, as well as Republican-leaning districts.  No wonder why so many people feel like their vote doesn’t count.  It doesn’t!  If you’re part of a supermajority in a safe district, your vote is being wasted on voting for someone who will win anyway; you can’t use it to try to help someone win in a close race; and if you’re in the minority in a supermajority safe district, your vote will never change the outcome.

Daley shows how redistricting has caused the American “middle” to collapse.  The districts are so lopsided that the middle doesn’t matter.  Of all 435 seats in Congress, only a few dozen are competitive.  This means that the only real challenge candidates face happens in the primaries, where ideological partisans fight to convince rancorous partisans that they are the most liberal, in the case of the Democrats, or the most conservative in the case of the Republicans.  So the members of the House have become extremely polarized, only responding to its extremes.  They go in with their minds made up and will only be punished for cooperating amongst competing interests.  The Republican leadership at the time REDMAP was formed seemed to have helped create an uncontrollable monster that ultimately toppled many of them, too.  Moderate Republicans and conservative Democrats are an endangered species now.

Redistricting is currently before the Supreme Court.  In North Carolina, gerrymandered districts were recently struck down for being race-based.  The Supreme Court will soon hear a Wisconsin case to determine if the Court can find a standard to strike down gerrymandered districts for being partisan-based.  With the technology we have at our disposal, it looks like it may be possible to enact a standard, according to an efficiency gap, or deviations between the vote totals and the districts created, as well as showing that the districts created are against all odds that they aren’t a deliberate attempt at getting political, pre-determined results.  If not, we’ve really got to change things so that redistricting can’t continue to destroy our Democracy.  But even if the Court finds a standard, it will help, but won’t completely solve the problem.  While the book showed that moves towards a more independent process, such as independent redistricting commissions, help a little, they still have a lot of partisan interference behind the scenes, and even when they’re caught, the solutions are less than fair.

Larry Lessig is quoted as saying, “political corruption denies a basic equality:  the equality of the citizens.  Once you see equality as the flaw, then it’s obvious what the bugs are.”  I feel like I’m an independent because I finally saw equality – or inequality – as the flaw.  In my opinion, as long as we allow parties to control our elections, and the majority winners to get the spoils of chairmanships, committees, redistricting privileges, multitudes of appointments, fundraising advantages, etc., our government will always be about which party is in power.  The book pointed how the Democrats plan to try to replicate what the Republicans have done, instead of working to change the system!  If we really want to give equality to the citizens, we need to give all voters an equal say in the election process, even when they don’t belong to a party.  This not only means creating districts that are as competitive as possible, but it means having preliminary elections where voters and candidates who are not part of the two major parties aren’t shut out, but have an equal voice and role.  The role of polarization and partisanship could change quite a bit with nonpartisan primaries.

Tiani Xochitl Coleman is a mother of five, a graduate of Cornell Law School, and president of NH Independent Voters.

Tiani recently had an oped published n the Concord Monitor entitled, “Voters shouldn’t ignore what the parties are doing–we need reform”.

*Reminder*

Conference Call with David Daley

Author of RATF**KED

Sunday, June 4th at 7 pm EST

Call: 641-715-3605
Pass code: 767775#

 

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Reader’s Forum–Lou Hinman

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In Ratf**ked, David Daley tells, in vivid and painful detail, how the Republican Party, planning for the reapportionment that would follow the 2010 census, hatched a plan that would give them a crucial edge in the state legislatures that would carry out the redistricting.  They were so successful that they were able to control the gerrymandering of enough congressional districts to create a very probable Republican congressional majority until the 2020 census.

Gerrymandering was not new.  Almost from the beginning of two-party politics in the United States, gerrymandering has been used by both parties to make particular districts uncompetitive (“safe,” that is, for one of the parties or the other).  What was new was the novel idea of targeting particular state legislatures, and well laid plans to get a very slim party majority in them in advance of redistricting.

It may well be that the Republicans violated the gentlemen’s agreement with the Democrats about how this game was supposed to be played.  However, I feel that Ratf**ked makes too much of the Machiavellian ruthlessness of the Republicans, and is correspondingly too soft on the Democrats.  To me, it defies belief that Democrats were just too innocent to know how bad the Republicans were, or that they simply got caught napping.

Here’s why.

The Democratic Party’s calling card is that they are “the party of the common man.”  But since their main allegiance is to the shared control of the political process, they are careful not to get too strong.  If they were to get too strong, a few embarrassing questions could be asked about why they are not more effective in serving “the common man.”  If those mean and nasty Republicans get too strong – well, what can you do, they just don’t play fair!  (For more on this neglected subject, be sure to read Indispensable Enemies by Walter Karp.)

Not getting too strong demands, above all, not mobilizing their base.  So for example, when the Tea Party was busy organizing “town meetings” to oppose Obamacare, you might have thought the Democratic Party would have organized a few of the 38 million people who had no health insurance into town meetings of their own.  Of course, they did nothing of the kind.  For the Democratic Party, the mobilization of it’s base is to be avoided like the plague, because they may not be able to control it.

Similarly, if the Democratic Party were to get into a brawl with the Republicans over gerrymandering, it would weaken the Democratic machine in at least two ways.  First, they might actually win!  This would put pressure on them to use their increased power on behalf of “the common people” they are supposed to represent.  Second, even if they didn’t win it would turn over the rock under which gerrymandering and other manipulations by the two political machines thrive – about which the less said the better!

Finally, the Democratic Party is plenty ruthless when it comes to attacking insurgents in their own party (ask Jesse Jackson and Bernie Sanders) or independents (ask Lenora Fulani).

Lou Hinman lives in New York City and is an activist with IndependentVoting.org and the New York City Independence Clubs.

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*Reminder*

Conference Call with David Daley

Author of RATF**KED

Sunday, June 4th at 7 pm EST

Call: 641-715-3605
Pass code: 767775#

Political Gerrymandering and the Constitution

 

New York Times

POLITICS

When Does Political Gerrymandering Cross a Constitutional Line?

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By ADAM LIPTAK               MAY 15, 2017

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The Supreme Court building in Washington, seen from the Senate. Congress requires the Supreme Court to hear appeals in some areas of election law, and Wisconsin officials have filed such an appeal.  Credit:Gabriella Demczuk for The New York Times

The Supreme Court has never struck down an election map on the ground that it was drawn to make sure one political party would win an outsize number of seats. But it has left open the possibility that some kinds of political gamesmanship in redistricting may be too extreme.

The problem, Justice Anthony M. Kennedy wrote in a 2004 concurrence, is that no one has come up with “a workable standard” to decide when the political gerrymandering has crossed a constitutional line.

Finding such a standard has long been, as one judge put it, “the holy grail of election law jurisprudence.”

In the coming weeks, the Supreme Court will consider an appeal from a decision in Wisconsin that may have found that holy grail. The case, Gill v. Whitford, No. 16-1161, arrives at the court in the wake of a wave of Republican victories in state legislatures that allowed lawmakers to draw election maps favoring their party.

The case started when Republicans gained complete control of Wisconsin’s government in 2010 for the first time in more than 40 years. It was a redistricting year, and lawmakers promptly drew a map for the State Assembly that helped Republicans convert very close statewide vote totals into lopsided legislative majorities.

In 2012, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats. In 2014, 52 percent of the vote yielded 63 seats.

Last year, a divided three-judge Federal District Court panel ruled that Republicans had gone too far. The map, Judge Kenneth F. Ripple wrote for the majority, “was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.”

The decision was the first from a federal court in more than 30 years to reject a voting map as partisan gerrymandering.

Most cases reach the Supreme Court by way of petitions seeking review, which the justices are free to deny. The Wisconsin case is different. Congress requires the Supreme Court to hear appeals in some areas of election law, and Wisconsin officials have filed such an appeal.

That means the Supreme Court is very likely to weigh in on the fate of political gerrymandering, probably during the court’s next term, which starts in October.

There are two basic ways to inject partisan politics into drawing legislative maps: packing and cracking. Both result in what Nicholas O. Stephanopoulos, a law professor at the University of Chicago and a lawyer for the plaintiffs, calls “wasted votes.”

Packing a lot of Democrats into a single district, for instance, wastes every Democratic vote beyond the bare majority needed to elect a Democratic candidate. Cracking Democratic voters across districts in which Republicans have small majorities wastes all of the Democratic votes when the Republican candidate wins.

In an influential article, Professor Stephanopoulos and his colleague Eric McGhee applied a little math to this observation. The difference between the two parties’ wasted votes, divided by the total number of votes cast, yields an efficiency gap, they wrote. In a world of perfect nonpartisanship, there would be no gap.

The gap in Wisconsin was 13.3 percent in 2012 and 9.6 percent in 2014.

The Wisconsin voters who sued to challenge the Assembly map argued that gaps over 7 percent violate the Constitution. That number was meant to capture the likelihood that the gap would endure over a 10-year election cycle, but critics say it is arbitrary.

Adopting it, they say, would transform American elections. A 2015 report from Simon Jackman, then a political scientist at Stanford and an expert witness for the plaintiffs, found that a third of all redistricting plans in 41 states over a 43-year period failed the 7 percent standard. Elections in 2012 and 2014 in Florida, Indiana, Kansas, Michigan, Missouri, North Carolina, New York, Ohio, Rhode Island, Virginia, Wisconsin and Wyoming featured efficiency gaps of more than 10 percent, Professor Jackman found.

Judge Ripple did not ground his opinion on the efficiency gap, relying instead on a more conventional legal test that considered discriminatory intent, the map’s partisan effects and whether they were justified by other reasons. But Judge Ripple did say that the efficiency gap corroborated the majority’s conclusions.

The case seems to be making Republicans nervous.

In a supporting brief, the Republican National Committee urged the Supreme Court to reverse the ruling. The efficiency gap, the brief said, “is a tool that advances the partisan interests of the Democratic Party.”

The gap, the brief said, is a product of geography rather than gerrymandering. Democrats have packed themselves into cities, effectively diluting their voting power, while Republicans are more evenly distributed across most states, the brief said.

Most people acknowledge that the distribution of the population explains at least some part of the gap. “Wisconsin’s political geography, particularly the high concentration of Democratic voters in urban centers like Milwaukee and Madison, affords the Republican Party a natural, but modest, advantage in the districting process,” Judge Ripple wrote, for instance.

Partisan gerrymandering, he wrote, amplified that advantage.

Using computer simulations, Jowei Chen, a political scientist at the University of Michigan, has tried to disentangle any natural advantages enjoyed by Wisconsin Republicans from those created by gerrymandering. He found that it was not hard to draw maps favoring neither party.

Justice Kennedy may have been looking for a “workable standard” even simpler and cleaner than one that must take account of natural advantages. But if there is a holy grail in this area, the test identified in the Wisconsin case is almost certainly it.

Follow Adam Liptak on Twitter @adamliptak.

 

*Reminder*

Conference Call with David Daley

Author of RATF**KED

Sunday, June 4th at 7 pm EST

Call: 641-715-3605
Pass code: 767775#

 

Gerrymandering heads to the Supreme Court

As we begin our reading of RATF**KED: The True Story Behind The Secret Plan To Steal America’s Democracy,  you will also want to read the The New York Times  piece on April 21st outlining the current status of the legal fights around gerrymandering.

 The Wisconsin State Capitol in Madison. A panel of judges agreed that the State Assembly’s electoral districts had been gerrymandered before the 2012 election, favoring Republicans.CreditMichael P. King/Wisconsin State Journal, via Associated Press

The hand-to-hand political combat in House elections on Tuesday in Georgia and last week in Kansas had the feel of the first rounds of an epic battle next year for control of the House of Representatives and the direction of national politics as the Trump presidency unfolds.

But for all the zeal on the ground, none of it may matter as much as a case heading to the Supreme Court, one that could transform political maps from City Hall to Congress — often to Democrats’ benefit.

A bipartisan group of voting rights advocates says the lower house of the Wisconsin Legislature, the State Assembly, was gerrymandered by its Republican majority before the 2012 election — so artfully, in fact, that Democrats won a third fewer Assembly seats than Republicans despite prevailing in the popular vote. In November, in a 2-to-1 ruling, a panel of federal judges agreed.

Now the Wisconsin case is headed to a Supreme Court that has repeatedly said that extreme partisan gerrymanders are unconstitutional, but has never found a way to decide which ones cross the line.

Some legal scholars believe this could be the year that changes that. If that happens, they say, an emphatic ruling against partisan gerrymanders would rank with another redistricting decision: Baker v. Carr, the historic 1962 case that led to the principle of one person, one vote.

 “My feeling is that there is increasing concern within the court about the extent of partisan gerrymandering over the last 10 or 15 years,” said Richard H. Pildes, a constitutional law professor at the New York University School of Law. “I do think this is a pivotal moment — a big, big moment.”

Gerrymandering has always been contentious. But the extraordinary success of a Republican strategy to control redistricting by capturing majorities in state legislatures in the 2010 elections has lent urgency to the debate.

Today, at a time of hyperpartisan politics and computer technology that can measure political leanings almost house by house, Republicans control legislatures in 33 states, 25 with Republican governors. They have unfettered command over the boundaries of at least 204 congressional districts — amounting to nearly half the 435-seat House.

In contrast, Democrats’ share of state legislature seats has shrunk to a level not seen since Warren G. Harding was president, according to the National Conference of State Legislatures. And in recent years, their numbers in the House of Representatives have hovered near levels last seen during the Truman administration.

Partly because of the Voting Rights Act, gerrymanders based on race are flatly illegal, but ones based on partisan intent remain in limbo.

The Wisconsin case heads four legal actions on partisan gerrymanders that the Supreme Court could consider and, perhaps, consolidate. In Maryland, another three-judge panel will hear arguments over whether a Democratic legislature gerrymandered House districts in 2011 to oust a 10-term Republican congressman.

In North Carolina, a June hearing is scheduled in a suit over the unabashedly partisan carving of the state into 10 Republican and three Democratic House seats — this in a state with more registered Democrats than Republicans.

The state representative who drew that map said he had engineered 10 safely Republican seats only “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

Experts disagree over how much gerrymandering has hurt Democrats. One prominent 2013 study mostly blamed geography, not partisanship, because Democrats tend to cluster in cities. But the most recent study, by a Princeton professor, Samuel S. H. Wang, concluded that gerrymanders had cost Democrats as many as 22 House seats in the 2012 election — nearly enough to flip the chamber’s control.

Politicians, on the other hand, appear certain of their electoral potency. Former President Barack Obama and his attorney general, Eric H. Holder Jr., are spearheading an initiative to undo Republicans’ redistricting triumphs. Arnold Schwarzenegger, a Republican and the former governor of California, is leading a movement to outlaw gerrymanders of any political stripe.

Wisconsin Republican leaders say they dominate the Legislature because they have both a better strategy and vision of governing, not because of illegal gerrymandering.

“In a year when people want change, even in a district that favors one party over another, a good candidate with a good message wins,” said Robin Vos, Wisconsin’s Assembly speaker.

But the court said in November that the redistricting clearly aimed to entrench Republican control of the Assembly. The party took 60 of the Assembly’s 99 seats in 2012 despite losing the popular vote, and has since added three more.

As in all gerrymanders, Wisconsin’s mapmakers hobbled their opponents in two ways. One was to pack as many Democrats as possible into a few districts, leaving fewer Democrats for potentially competitive ones. In 2012, 21 of the 39 Assembly districts that Democrats won were so lopsided that Republicans did not even field candidates. In two more, Democrats captured at least 94 percent of the vote.

The other method was to fracture unwinnable Democratic districts, salting their Democrats among Republican-majority districts so that races there became closer yet remained out of Democrats’ reach.

“They just busted my district and put it into four or five others,” said Mark Radcliffe, a 45-year-old Democrat and former state representative, whose district encompassed Alma Center, in rural western Wisconsin. Mr. Radcliffe, who wound up in the district of another Democrat, chose to resign rather than run against a popular member of his own party.

John Steinbrink at his home in Pleasant Prairie, Wis. Mr. Steinbrink, a Democrat, had represented a district in far southeastern Wisconsin since 1996, but after redistricting, lost to a Republican who won 55 percent of the vote in 2012. Credit Taylor Glascock for The New York Times

John Steinbrink, another Democrat, had represented southeastern Wisconsin in the Assembly since 1996, supported by a Democratic base in Kenosha, six miles from where he farms corn and soybeans. After redistricting, Kenosha became a safe Democratic district, and Mr. Steinbrink was exiled to an adjoining district populated by rural conservatives. In 2012, his Republican opponent won with 55 percent of the vote.

“I could have moved to Kenosha” and sought re-election there, Mr. Steinbrink said. “But I don’t know how you farm in the city.”

The legal argument against such maps is akin to the one used for decades to outlaw ethnic and racial gerrymanders. Gerrymanders dilute a minority group’s votes, muffling its voice in the political process. The Wisconsin plaintiffs argue that whether the minority group is African-Americans or members of a political party makes no difference.

“When you’re talking about the opportunity to turn your vote into a policy or change, the 14th Amendment says you should have an equal chance, whether you’re a Democrat or a Republican,” said Ruth Greenwood, the deputy director for redistricting at the Campaign Legal Center, which is representing plaintiffs in Wisconsin and North Carolina. “But if you’re a Republican in Wisconsin, you get an outsized say with your vote. And if you’re a Democrat in Rhode Island, you get an outsized say.’’

But while racial or ethnic gerrymanders can be statistically measured — a Latino remains a Latino from election to election — judges have struggled to identify overly partisan districts, knowing voter sentiments can quickly change.

In Supreme Court cases in 1986, 2004 and 2006, justices variously called partisan gerrymanders illegitimate, seriously harmful, incompatible with democratic principles and “manipulation of the electorate.” But they have never struck one down. And in 2004, they came within a single vote of ruling them impossible to judge, because nobody could draw the line between unavoidable political influence in redistricting and an unconstitutional rigging of the vote.

The Maryland lawsuit proposes a solution that some justices have pondered: an argument that gerrymanders violate the First Amendment, not the 14th, by retaliating against opponents who express contrary views. Under that standard, any partisanship-inspired district would be unconstitutional if it hobbled a minority party.

The Wisconsin plaintiffs’ attempt to break the logjam is a new standard, the efficiency gap. It is a numerical rating of parties’ “wasted” votes: those above the 50-percent-plus-1 needed to win a seat, and all votes cast in a loss. When the gap between the parties’ ratings exceeds a limit based on ratings from hundreds of past elections, the plaintiffs argue, the majority party should have to justify the boundaries it drew. Even then, plaintiffs would have to prove the party aimed to weaken the opposition.

 Nicholas O. Stephanopoulos, a University of Chicago law professor and lawyer for the plaintiffs, said four of the five most partisan state legislature maps in the last 45 years were drawn after 2010. CreditTaylor Glascock for The New York Times

The Wisconsin case underscores how modern gerrymanders, using computers and political and behavioral data, have become increasingly effective. Measured by the efficiency gap, four of the five most partisan state legislature maps in the last 45 years were drawn after 2010, said Nicholas O. Stephanopoulos, a University of Chicago law professor and lawyer for the plaintiffs.

In the House of Representatives, eight of the 10 most partisan maps were created after 2010, including Wisconsin’s and two in North Carolina.

One participant in the 2004 decision, Justice Anthony M. Kennedy, may prove the fulcrum in the court’s deliberations. In that case, he held out hope that the court could find a solution to extreme gerrymanders that political leaders were unable or unwilling to address.

“The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself,” he wrote then.

At a time of soaring concern over hyperpartisanship, those words could resonate. That sentence “is the most important line” in the court’s decision, said Edward B. Foley, director of the Election Law Project at the Ohio State University Moritz College of Law.

If the Wisconsin statistical standards do not persuade the justices, other proposals are waiting in the wings. But some worry that the debate may be close to hitting the brick wall it avoided in 2004.

“If the court doesn’t endorse some version of what the three-judge panel decided” in Wisconsin, said Ellen D. Katz, a University of Michigan scholar of election law, “then it may be they’re never going to find a standard they’re comfortable applying.”

***

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