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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?
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 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.
It’s 2017 and guess what? Virginia is STILL trying to finalize its redistricting plans…based on the 2010 census. What is going on?
The constitution entrusts the process of drawing state legislative and congressional district lines to the state legislatures. With few exceptions, this means that the process of drawing those district lines lies in the hands of the party that controls the state legislature. The result has been and continues to be a rancorous, expensive ritual that was supposed to be decennial but, at least in Virginia, has become a constant preoccupation of our elected officials. Instead of occurring once every ten years, it seems to take ten years to try to do it correctly.
This is a heinous conflict of interest: our elected officials condition the process by which they are returned to office. This is akin to a baseball pitcher altering the strike zone every time he faces a batter or a golfer moving the pin to suit her putting. These are venal, silly examples of situations in which anyone would cry “foul”. So why do we sit back and ignore cries of foul about the redistricting process?
In fact, “redistricting” is a misnomer. Our voting districts are “gerrymandered.” Every line, every twist and turn is designed to create districts that, first and foremost, suit the partisan interests of the legislative majority and legislative incumbents. The process is constrained by the one person, one vote requirement and the Voting Rights Act’s restrictions on discriminating against minority voters. But, state legislators can and do work around these constraints to draw contorted voting districts that have served only to ensure that incumbents are essentially unbeatable, challengers don’t have a chance and, in the end, voters really have little choice on Election Day.
This applies to any district, regardless of the race, party or gender of the incumbents. At the congressional level, Republican Bob Goodlatte has been as unbeatable as Democrat Bobby Scott. Unless they are surprised in a primary (as Eric Cantor was in 2014), our congressional incumbents leave office only through retirement or natural causes. As a result, there is almost no reason to vote in a Virginia congressional election. The typical margin of incumbent victory is so large that voting for the incumbent is as much a waste of time (she is going to win anyway) as voting against one (he is going to win anyway).
One of the terrible ironies of all this is that the Voting Rights Act has been undermined by gerrymandering. Sure, districts are drawn to embrace majorities of Hispanic, black or other minority voters where possible. But, in the end, those minority incumbents are as unbeatable as their Anglo colleagues. The result is that the VRA has become simply an instrument to return racial minority incumbents to office as easily as white incumbents. Meanwhile, minority voters are given as poor a choice on Election Day as their white counterparts.
Some would say this is progress in the march towards racial equality and fairness: elections are equally uncompetitive and voters have equally poor choices regardless of their race, creed, gender and so forth.
But, the Voting Rights Act and elections are about the rights of voters—not the interests of elected officials. Elections should provide voters with real choices among candidates. Elections should entail meaningful campaigns and appeals to voters every year. Instead, the product of some 50+ years of redistricting, gerrymandering, litigation and Supreme Court decisions is poor turnout, meaningless Election Day choices, gerrymandered districts and essentially unbeatable incumbents.
What is most appalling and disturbing is that the process in Virginia could be improved so easily. Twenty one states use nonpartisan redistricting commissions. This removes the conflict of interest from the districting process. Doing this decreases the likelihood of going to court because neutral districting principles (maintaining equal populations, tending to minority populations, respecting municipal boundaries) take precedence.
Instead, the conflicts of interest that inhere in the process render it appallingly expensive. As an example: since the legislature did a poor job drawing the congressional district lines last time around, a special master was called in at the cost of more than $80,000. You read that correctly: the taxpayers forked out $80,000 for someone to draw 11 districts—and there is no guaranty that they will pass constitutional muster.
To put this in perspective: $80,000 would hire one or two teachers for a year in most of our Commonwealth’s public school systems.
That fee does not include litigation costs, court fees, and the opportunity cost of dedicating legislators’ time to tweaking district lines that could be otherwise spent on the budget, health care, road, jobs, etc. Virginia has 40 Senate districts and 100 house districts. One can only imagine how much the taxpayers will bleed to pay consultants (instead of a commission) to draw district lines.
In defense of this system, legislators or apologists will argue that redistricting should be in the hands of elected officials because they know best what is in the interests of their constituents. But, if we end up turning the process over to private consultants and litigants, that connection is clearly broken. Virginia’s redistricting history over the past several decades indicates that this connection is seldom preserved.
So, redistricting serves the interests of incumbents, political consultants and litigants—all at the fiscal and democratic expense of the voters whose interests the process should be serving. It’s time to join the other 21 states that use redistricting commissions. End the gerrymandering of Virginia voters.