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#

 

The Big Picture

The Big Picture RT

 

In June of 216, Thom Hartmann’s interviewed with David Daley on The Big Picture on RT America.  Good overview of the basics outlined in RATF**KED: The True Story Behind the Secret Plan to Steal America’s Democracy.  Take a look.

(If you cannot see the video, click here to view on line.)

At the end of the show Dave and Thom have the following exchange:

When you have our democratic institutions that aren’t responsive to the ballot box, you have to ask if they are even democratic institutions anymore.”  Dave Daley

“Right, as in small d democratic. And that is reflected in the frustration of the people. And that is reflected in these insurgent campaigns on left and right–of Bernie and Trump and everything else. Boy, what a mess.”  Thom Hartmann

I am looking forward to our conversation with Dave next month.  We’ll be exploring gerrymandering and how the REDMAP plan fits in with the party uber alles framework that has run amok in American democracy.  A framework that effectively works to exclude and minimize the voice of the American people, especially independents who are now 44% of the electorate. The issue we face and work on every day, is how can the American people regain control over our democracy.

*Reminder*

Conference Call with David Daley

Author of RATF**KED

Sunday, June 4th at 7 pm EST

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

 

 

An Interview with P4P Founder

In March of this year, I taped an interview for None of the Above a popular cable TV program hosted by Steven Nemerovski that airs on The Grassroots Community Network in Colorado.  Steven’s show explores the causes of the dysfunction and polarization in our political process and what the “solution sets” are.  Our segment was part of Steven’s ongoing “Difference Maker Series”.

We had a lively conversation about the Politics for the People book club that I think you will enjoy.  Also, please visit None of the Above and take a look at their recent programs.

 

Note: if you can’t see the video in your email, visit the blog or you can click here.

Politics for the People in the News

Increasing ‘Political Literacy’:

How Book Clubs Produce an Informed Electorate

IVN

Oct 7, 2014          By Anthony Del Signore

Informed voters are a dying breed. In an era of mass media consumption where partisan demagoguery rules the airwaves, it is tough to have a discussion on an issue without it devolving into talking points the average politico can repeat ad nauseam. This inevitably seeps into and devolves the American political process, a process once lauded for its malleability (as there can be different “flavors” of Democrats and Republicans for each individual), but is now as rigid and divided as ever.

The average American will not flip the television channel between Chris Matthews on MSNBC to Bill O’Reilly on Fox News to see what the other side is saying, so misrepresentation of the opposing side abounds.

Furthermore, the fundamental workings of government are not an important facet of middle school and high school education. One might get the basic idea of how a bill becomes a law and how often an official is up for re-election. However, if one wants to know how committees are set up and operated, who chooses to sit on these committees, and what a filibuster is and how it works, one would have to take it upon themselves to learn this information.

Thus, people do not understand why Republicans and Democrats are so entrenched in the political process that a governmental structure without them seems unimaginable.

books

Our political literacy is suffering, our ability to debate and reach compromise is suffering, and our understanding of the basic tenants of government is almost nonexistent. One solution is found in alternate forms of education, particularly in the tried-and-true institution of book clubs.

Since the invention of the printing press, book clubs, or literary societies, have remained popular among the reformed and educated. Once born out of necessity due to astronomical book prices, book clubs are now for those who perhaps want guidance on what the popular books of our time are, different perspectives on one piece, or a chance to socialize between like-minded book lovers.

Nevertheless, one book club is challenging the norm of sitting down in a living room and socializing over romantic contemporary novels or American classics.

Politics for the People, an online book club stationed in Lower Manhattan and sponsored by IndependentVoting.org, tackles important political questions of the day, such as the case for equality in the Declaration of Independence and the effects of the Jim Crow south on contemporary society.

Politics for the People began in 2012 with a mission to give a voice to independent-minded individuals frustrated with partisan bickering and one-track mindedness. Since then, the groups has become a huge success with monthly conference calls featuring such esteemed speakers as Isabel Wilkerson and Danielle Allen.

The conference calls include people from various walks of life: from political candidates to health care physicians to academics and college and high school students. It is an approachable and light-hearted atmosphere with a dedication to serious debate and discussion.

For example, the conversation with Isabel Wilkerson, author of The Warmth of Other Suns, made me research and better understand the Great Migration and its effects on African-Americans today.

One quote from the conference call stood out to me:

“[African-Americans are] the only group of people who actually had to act like immigrants to be recognized as citizens in their own country.”

While we have come a long way since the Jim Crow south, Wilkerson wants us to understand that we still have a long way to go. Rising inequality, lack of adequate education, and lack of job training are just a few examples of the struggles many African-Americans go through every day.

It would have been unlikely for me to concentrate on this aspect of history if it was not for Politics for the People. This book club has helped me expand my horizons and tackle works that I either did not know existed or at the time I did not find interesting.

Thus, the political literacy of the average American would be better off with more book clubs such as Politics for the People. To engage in heavy debate and discussion about the nuances of historical and contemporary societal and political issues is something all Americans who vote should do.

In fact, it is something most Americans should want to do. So the next time someone wanders into a voting booth on Election Day, I hope they are well-informed of the issues of the day, the historical and contemporary context of the debates raging between the two (or more) candidates, and are confident enough they are making the right choice.

 

  About the Author  Anthony Del Signore:  I am currently a senior at Pace University studying in the Political Science department.
Anthony Del SignoreI have worked in countless political offices and have joined forces with the Independence Party of New York City to work towards opening private, partisan primaries to all voters.

New Gallup Poll—Americans continue their independent exodus

You will enjoy reading the Miami Herald article that ran today announcing the results of the recent Gallup poll showing 42% of Americans are independent, the highest percentage in 25 years.  Hope you will give it a read.

Jeffrey Jones, a Gallup analyst commented, “Americans are increasingly declaring independence from the political parties.”  Indeed we are!  And our current book club selection, Indispensable Enemies, adds some insight into why Americans have lost confidence in the two parties.

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