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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Political Gerrymandering and the Constitution

 

New York Times

POLITICS

When Does Political Gerrymandering Cross a Constitutional Line?

Sidebar

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.

 

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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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