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.

 

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Conference Call with David Daley

Author of RATF**KED

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An Independent Reviews RATF**KED

The True Story Behind the Secret Plan to Steal America’s Democracy

By Dr. Jessie Fields 

Jessie Fields

Dr. Jessie Fields at the 2107 National Conference of Independents

 

David Daley does a fine job of exploring the politics of redistricting and the current escalation of gerrymandering, a very old corrupt standard practice of elected officials determining the electoral districts from which they are elected, drawing the lines of state legislative and congressional districts. The author examines in detail the resulting high level of voter disenfranchisement at the state and national level, the effective takeover of our political process by party operatives who determine the outcome of elections by packing Democratic leaning minority voters into dense urban districts and spreading so called Republican leaning voters over more districts which Republican legislators can be assured to win though by smaller margins. Throughout the book Daley touches on the racial and economic divisions this practice perpetuates.

The book pivots through the years of the Obama presidency and examines the 2010 Republican Party escalation of partisan gerrymandering that targeted districts in key states to successfully control the state redistricting process which resulted in unprecedented victories for the Republican Party and their domination of a majority of state legislatures and of Congress.  The author also points out the complacency of the Democratic Party, its focus on presidential elections and the Democratic Party’s reliance on demographics to win elections.

A solution to gerrymandering is unlikely to come from either of the two parties. The Republicans may have perfected it in 2010, but both sides have had a long, successful history of manipulating redistricting for their own advantage. A political party is built to win elections, after all – as well as to raise money and employ consultants and operatives. Their leaders always believe they can win the next one, and that reformers will stop howling once their side regains power. Too often, sadly, that’s true.”

Independent voters have been and remain committed to nonpartisan political reform including redistricting reform. The source for reform has come primarily from voter ballot initiatives and the book highlights the fights to maintain such initiatives in states like Arizona, where the case went all the way to the U.S. Supreme court and the voter initiative was upheld by a 5-4 vote of the court.

Other examples of the passage of redistricting reforms by popular vote are Florida’s “nonpartisan Fair Districts Now coalition” which in 2010 passed two reform initiatives with 62 percent support. In 2015 Ohio voters by 71% passed a ballot initiative that, though limited, established a less partisan plan for drawing state legislative districts.

However California, in my estimate the state that has led the country in electoral reform victories with its redistricting commission and nonpartisan top two elections initiatives, passed by the voters in 2010, is not mentioned except in a quote in the chapter, “Democrats” from Martin Frost, a former Texas Congressman who was gerrymandered out of office.  

“When Democrats controlled the House for the four decades before the 1994 Gingrich revolution, redistricting worked with a wink, he said; it was an incumbent protection racket on both sides. .. “That’s why prior to the referendum in California – prior to the commission – everyone got reelected.” “The numbers back that up.”

The overarching theme of the book is in the subtitle, “The True Story Behind The Secret Plan To Steal America’s Democracy”.  It expresses the stealth aspect of the reality of what is happening to American democracy. A centerpiece of the theft and destruction of democracy is partisan gerrymandering in conjunction with closed partisan primaries. If the primaries locally and nationally were open and every voter, no matter party affiliation or non-affiliation, including independent voters could vote the threat of being “primaried” by a far right wing Republican would not exist.

The relationship of opening the primaries to all voters along with redistricting reform is underestimated, both are needed. Partisan gerrymandering hinges on the district being dominated by identification with one political party, so that whoever wins that party primary wins the general election. If the primary is open to all voters the candidates who are successful are more likely those that appeal to a cross section of voters. This phenomenon has been demonstrated in states with nonpartisan open primaries. A massive continuous infusion of systemic democracy reforms and initiatives that take power from the parties and put it in the hands of the voters are needed to save our democracy. I could not agree more with Daley that “.., it will require creative state and local solutions, inventive uses of the referendum and initiative process, and new alliances of frustrated citizens which defy party boundaries, rooted in the belief that fair elections which reflect an honest majority are as important as which side wins. It will take people to stand up and say that our democratic values matter too deeply to ratfuck.”

The book was completed before the end of the 2016 presidential election, and in it Rob Richie, executive director of FairVote, postulates alternative scenarios if the election was won by Hillary Clinton, Bernie Sanders or “a Republican” given that gerrymandering has given the Republican Party a congressional majority for the rest of this decade. Donald Trump is now president. He was elected because large segments of the American people are in revolt against the establishment and are looking for ways to change politics. This popular revolt was also expressed in the campaign of Senator Bernie Sanders.

The gerrymander is yet another example of a political barrier that must be overcome. Voters are becoming more independent and less easily sorted by party identification. Independents say strongly “do not put me in that box”, 43% of Americans now identify as independents, they are the hoped for bridge to a new and more inclusive American democracy.

~Dr. Jessie Fields is a physician practising in Harlem, a leader in the New York City Independence Clubs, and a board member of the All Stars Project and Open Primaries.

***

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