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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.
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.
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