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That title is not a popular way to start a piece on the Supreme Court or gerrymandering. But, despite the torrent of outrage flowing through the press and cyberworld, I’m taking a contrarian view and suggesting that the Court got it right.
The Wisconsin redistricting case, Gill v. Whitford, hinged on the utility of a new measure of partisan fairness called the “efficiency gap.” It was created by Nicholas Stephanopoulos and Eric McGhee as a way to measure and compare the number of “wasted votes” cast for each political party in state legislative or congressional elections. The efficiency gap has many merits. It is simple, easy to explain and understand and easily applied to election results. It also does not get to the heart of the problem of gerrymandering.
The Court pointed out that the efficiency gap is an aggregate measure. It fails, therefore, to take into account the conditions in particular legislative districts. In some cases, votes may be wasted because voters are indeed “packed” into districts where they comprise an overwhelming majority. In others, they may be cracked among several districts so that they can never elect a candidate of their choice. Both of these practices were employed at the expense of minority voters during one of its darker periods of racial discrimination.
But, partisan votes are different. In some cases, it may appear that votes are wasted because an incumbent is so popular that she scares off any partisan opposition. Alternatively, it may be the case that a party organization is so decrepit that it cannot field a viable opposition candidate. In some cases, it is simply not possible to draw a competitive district where votes are not wasted. In Virginia, for example, it is almost impossible to draw a majority-minority district that comports with the Voting Rights Act and that is competitive. Simply put, there is little to be gained in running a Republican candidate in a district that is designed to ensure that a minority candidate (who is also most likely to be a Democrat) is elected. As a result, the notion of “wasted votes” really is not helpful in the analysis of gerrymandering because one person’s wasted vote is another’s endorsement of a popular candidate.
Furthermore, the efficiency gap tells us little about the motivations that inform those who draw district lines. A legislative district map that meets all notions of aesthetics can have the same efficiency gap measure as a map that looks like a Rorschach test. Simply aggregating votes across a state does not tell us whether and how the organization of the electorate contributes to or against an unfair electoral system.
In the end, the Supreme Court has told lawyers and academics to do their homework better. Statewide measures of vote counts are simplistic and ignore important details about how voters vote. We are not a bunch of ciphers that enter the polls on Election Day and automatically pull the Democratic or Republican lever. We think about who the candidates are and how candidates that bear the same party label can differ radically in their positions on the issues. Accordingly, a vote may be in favor of one candidate or against another. It is therefore nonsensical to compare partisan votes cast in one legislative district to those cast in another.
In challenging lawyers and political scientists to undertake much more extensive analysis of how voters vote in our electoral system, the Court also invited them to prove that gerrymandering punishes voters because of their “association” (through casting a vote) with one party or the other. But, in our electoral system where we divided voters among districts in which they can choose among a limited slate of candidates, this will be an impossible task. One’s “association” with a party will depend on who the party’s candidate is—and vice versa. So long as we continue to use the antiquated single-member district system of elections, it will be impossible to tell whether a partisan vote is for or against a party or a candidate because we force voters to choose artificially between limited Election Day options.
If we really want to stop—or at least curtail—gerrymandering, we should use the Court’s decision to enact meaningful electoral reform. A switch to ranked choice voting (as Maine used in its recent election) will give voters much more meaningful choices on Election Day and handcuff those who would look to gerrymander the electoral system. The Court has invited Americans to improve the electoral choices. Will we accept and put an end to gerrymandering?
This is another piece that I published on Whitford v. Gill, the gerrymandering case that the Supreme Court will hear this year. It is available at the Huffington Post Website
Many in the media suggest that this case presents a great opportunity for the Court to end the gerrymandering problem once and for all. This is due to the fact that the case is informed by a measure generated by my colleagues Nick Stephanopoulos and Eric McGhee called the “Efficiency Gap.” The measure is elegant and simple. But the media are misusing it and miscasting the case.
So long as we have discriminatory campaign finance laws and we use the winner-take-all electoral system, our elections will always seem to be gerrymandered. Incumbents will remain unbeatable, elections will be uncompetitive, districts will have bizarre shapes and voter turnout will be low.
There is a solution to this problem. But, it does not lie in any formula. We need to change our electoral system. To do so is simple.
I wrote this for my Huffington Post site here.
In short, I believe we have reached the point where it is clear that our current system of elections is arguably unconstitutional. It would take a tremendous effort to take a successful constitutional challenge to the Supreme Court. But, the Court itself has planted the seeds for such a challenge throughout its case law.
I published a commentary on the Supreme Court’s decision on 19 June to hear Gill v. Whitford (the latest partisan gerrymandering case) at HuffPost here.
The Supreme Court has lamented that there seems to be no clear formula for determining whether a redistricting plan constitutes a gerrymander. So, consultants and lawyers are now suggesting that they have found the holy grail of formulae.
There is no such formula. Worse than Macbeth’s “sound and fury…signifying nothing”, any such formula will be a quiet threat to democracy. It will promote even more litigation that is paid for by…tax dollars. Yet, elections will not improve.
We do need to stop the madness…
I published this in The Hill here: http://thehill.com/blogs/pundits-blog/presidential-campaign/333918-less-democracy-is-better-democracy-heres-why
I recommend that one solution to gerrymandering would be to lengthen legislative terms. If our elected officials could spend less time campaigning and more time legislating, politics would improve and gerrymandering could be controlled.
The media are split with regard to what the decision portends. Some key facts: NC’s population is 21% black. The state has 12 congressional districts. So, if it is geographically possible, the state needs to produce two congressional districts that give black voters the opportunity to elect the candidate of their choice.
This used to be simpler. Construct a district with enough black voters to comprise a majority of the voting population (and maybe a bit more to account for nonvoters) and you would have a majority-minority district. If the black voters acted as a block, they could elect a candidate of their choice. If you put too many black voters in a district, it would be an unconstitutional racial gerrymander that “packed” too many voters into the district. Too few, and it was a district that “cracked” voting power.
Over time, incumbents, lawyers and political consultants have looked to tweak this by asserting that, after a while, racial divisions might heal or melt away and, as a result, white voters might come around to support black candidates. If so, then it theoretically becomes unnecessary to create a “majority-minority” district. Under these “crossover” circumstances, a district with only 40 or 45% black voters might be able to elect a candidate of the black voters’ choice. If so, creating a district with 55% black voters would now be an unconstitutional “packing” gerrymander.
The NC redistricting case boiled down to whether or not it was necessary to create a majority or in influence district. Theoretically, if NC could create two solid influence districts, those extra black voters could be moved into another district where they could wield some solid influence.
Maybe. But, at the end of the day, NC needs to create TWO districts that can elect a candidate of black voters’ choice. So (and theoretically, this is good news), those extra black voters that we no longer need to create majority minority districts are simply “filler people” (as one scholar described long ago) that we use to make sure district populations are equal.
(I admit that the language sounds less than empathetic. But, these are the terms of the trade.)
Problem is, then, the case boiled down, metaphorically, to a dispute about whether those districts should be 47 or 45 or 51% black. At the end of the day, the extra voters would still be pushed into other districts where they would be minority voters. So, no matter what, NC had to create opportunities to elect two black-preferred candidates.
NC did just that. Yet, this case was litigated up to the Supreme Court where the justices sent it back…so that the lines could be redrawn and, no doubt, another round of litigation will take place. This is 2017. Place your bets: will this be resolved before the next census?
One can only imagine the amount of taxpayer dollars going towards this litigation—to fight over a percent or two when the districts must be created anyway. Litigants and consultants are making a lot of money to do essentially nothing to improve the fate of any voters. This is unethical. We are expending tax dollars at the expense of the voters. This is endless litigation. The stuff of Dickens’s BLEAK HOUSE.
In a recent piece in the Roanoke times, delegate Sam Rasoul finished his call for redistricting reform with the following statement: “ Redistricting reform can stop the unethical practice of politicians drawing their own district lines, and reform can help our great commonwealth create a political atmosphere that encourages more solution-centered dialogue. Our futures depend on it.”
Gerrymandering has been a pox on American politics for more than a century. In the wake of the Voting Rights Act, it has become even more pernicious. Sticking to the letter of the law, state legislators and members of Congress have worked together to draw districts that will ensure the election of minority legislators as effectively as they used to be drawn to prevent this. Thus, in the wake of the VRA, “electoral reform” has resulted in the diversification of the class of unbeatable incumbent legislators.
Granted, this is, indeed progress. Minority political aspirants now can run for office and minority voters can now actually register and vote without being subjected to the various forms of heinous disenfranchisement that characterized U.S. politics before the passage of the VRA.
Nonetheless, if the fallout of the VRA has been to enable incumbents who are racial minorities to gerrymander themselves into office as permanently as those who are white, then it is clear that our incumbents have settled for some pretty low hanging political fruit. So, we now have more racially and ethnically diverse legislatures. But, incumbents remain unbeatable, elections remain generally uncompetitive and turnout in legislative elections is embarrassingly low. It seems that we’ve forgotten that voters—not incumbents—were the intended beneficiaries of the VRA.
Redistricting reform would be an important step to improving the conduct of elections and promoting the aspirations of the Voting Rights Act. Alas, only our incumbent legislators can pass the laws necessary to bring about the necessary reforms. But, it is unlikely that legislators will pass laws that will take away their control over the districting process that enables them to gerrymander district lines. Sadly, this process is absolutely undemocratic: it enables legislators to choose their voters—instead of the other way around.
We should heed Rasoul’s call for electoral reform. Legislators should not be allowed to draw legislative districts. It’s a conflict of interest. As well, we should look to simplify the political map of Virginia: use multimember districts in and around our cities so their citizens can vote together instead of having their interests divided. There is lots that can be done. Check out the Center for Voting and Democracy. They have a wealth of information on this topic. For now, though, sent a tweet of support to @Sam_R