Tag Archives: gerrymandering

Constitution Day

This year, I was asked to give a Constitution Day lecture at Xavier University. This is what I said. (Warning: this is long, and I’ve said a lot of it before…)

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Does Civic Ignorance Really Matter?

The title of this talk is a question: does civic ignorance matter? It will not come as a surprise to you that I think it does—that I believe the consequences of living in a system you don’t understand are negative not just for the health and stability of America’s democratic institutions, but for individuals. After all, if you don’t know how your government works, or who does what, you are at a decided disadvantage when you need to negotiate the system. (If you take your zoning problem to your Congressman, or your Social Security problem to your Mayor, you’re going to waste a lot of time.)

Today, however, I want to focus on the ways in which low civic literacy harms the nation, and talk a bit about what you need to know in order to be an informed voter or even better, an involved civic activist.

Let me begin with an observation. What we call “political culture”–including the public conversations that citizens have with each other about the rules we live by– is the most toxic it has been in my lifetime. And in case you didn’t notice, I’m old. There are lots of theories about what has led us to this rather unfortunate place—from partisan gerrymandering and residential sorting to increasing tribalism to fear generated by rapid social change—and during Q and A, we can talk about the different ways those elements and others contribute to the political nastiness we see all around us. But I want to begin our conversation by considering a different villain.

I want to suggest that our current inability to engage in productive civic conversation is largely an outgrowth of declining trust in our  social and political institutions—primarily, although certainly not exclusively, our government. Restoring that trust is critically important if we are to make our democracy work—but in order to trust government, we have to understand what it is and isn’t supposed to do—we have to understand how the people we elect are supposed to behave. We need a common, basic understanding of what our particular Constitutional system requires.

Think about it: if I say this podium is a table, and you say no, it’s a chair, we aren’t going to have a very productive discussion about its use—for that matter, we’re each likely to think the other person is nuts. We’re certainly not going to trust his or her other observations.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where informed people of good will can come to different conclusions about what the Constitution requires. But by and large, those aren’t the things Americans are arguing about, and they aren’t the things I’ll be talking about today.

I study how Constitutional values apply within our increasingly diverse culture, the ways in which constitutional principles connect people who have very different backgrounds and beliefs and make us all Americans.  That research has convinced me that widespread civic literacy—by which I mean an accurate, basic understanding of the history and philosophy of our country—is absolutely critical to our continued ability to talk to each other and to our ability to function as Americans, rather than as members of disconnected tribes competing for power and advantage. My research has also convinced me that the civic knowledge we need is in very short supply.

Let me share a story that may illustrate my concern. When I teach Law and Public Affairs, I begin with the structure—the architecture–of our particular legal framework, how that framework limits what laws we can pass, and how “original intent” guides the application of Constitutional principles to current conflicts. I usually ask students something like “What do you suppose James Madison thought about porn on the internet?” Usually, they’ll laugh and then we discuss how the Founders’ beliefs about freedom of expression should guide today’s courts when they are faced with efforts to censor communication mediums the founders could never have imagined. But a few years ago, when I asked a college junior that question, she looked at me blankly and asked “Who’s James Madison?”

Now, it’s tempting to dismiss this as anecdotal, to consider that student an outlier–but let me share with you just a tiny fraction of available research. For several years, around Constitution Day, the Annenberg Center has conducted surveys measuring what the public knows about the Constitution. This year, more than a third of those surveyed (37 percent) couldn’t name a single one of the rights guaranteed under the First Amendment, and only 26 percent could name all three branches of government. That is actually down from 2011, when a still-pathetic 36% could name them.

A few years ago, the Oklahoma Council of Public Affairs asked high school students in that state some basic questions about American government. Here are just a few of those questions, and the percentages of students who answered them correctly:

What is the supreme law of the land? 28%

What do we call the first ten amendments to the Constitution? 26%

What are the two parts of the U.S. Congress? 27%

How many justices are there on the Supreme Court? 10%

Who wrote the Declaration of Independence? 14%

What are the two major political parties in the United States? 43%

Who was the first President of the United States? 23%

Other research tells us that fewer than half of 12th graders can describe the meaning of federalism. Only 35% of teenagers can correctly identify “We the People” as the first three words of the Constitution. It goes on and on–there’s much more data, all depressing.

And it matters.

If you think about it, the choices originally made in the design of our Constitution have shaped America’s culture. Those choices have shaped our beliefs about personal liberty, and our conceptions of human rights. They have framed the way we allocate social duties among governmental, nonprofit and private actors. In short, those initial Constitutional choices created a distinctively American worldview.  We don’t have to agree with all of those choices, but if we don’t understand what they were, or why they were made, or how they make America distinctive, we can’t fully understand the world we live in.

Constitutions are expressions of political theory, efforts to address the most basic question of any society—how should people live together? What should the rules be, how should they be made, who should get to make them and how should they be enforced?

In America, for the first time, citizenship wasn’t based upon geography, ethnicity or conquest, but on an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” The most revolutionary element of the American Idea was that it based citizenship on behavior rather than identity—on how you act rather than who you are.

That American Idea reflected certain assumptions about human nature and accordingly, privileged certain values—values that need to be more explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our public morality.

Now, obviously, the founders of this nation didn’t all speak with one voice, or embrace a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the founders’ achievement was, as enduring as the bulk of their work has proven to be, we all recognize that the system they established wasn’t perfect, nor was it sufficient for all time.

Take that issue of “original intent.” There are those who believe that the role of the courts is to look only at the world the founders inhabited in order to understand what they intended, and to apply the rules as they would have been applied in that world. Such a view of the judicial function arguably misreads both history and the founders’ expressed intent. In any event, it’s impossible. We can’t think like people who lived in 1787. And whose “original intent” are we supposed to apply? John Marshall’s? Thomas Jefferson’s? James Madison’s?

More to the point, constitutions are by definition statements of basic principles to be applied to fact situations which may or may not be foreseeable at the time the principles are endorsed. Our inquiry, properly understood, must be to identify the principle or value the founders wanted to protect, and protect it to the best of our abilities in a rapidly changing world. The question isn’t: What did James Madison say about pornography on the internet? The question is: how do we apply this principle James Madison enunciated –the importance of protecting citizens’ communication from government censorship—to forms of communication Madison could never have imagined?

The great debates between the Federalists and Anti-Federalists were about the proper role of government. We are still having that debate. We have enlarged our notion of citizenship since the constitutional convention to include women, former slaves and non-landowners, but the framework remains the same. The overarching issue is where to strike the balance between government power and individual liberty.

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may justifiably deprive you of liberty? How do we balance government’s duty to exercise authority and enforce order against the individual’s right to be secure in his person and free in his conscience? The founders answered that question by carving out, in the Bill of Rights, things the government was forbidden to do.

As I tell my students, the Bill of Rights does not give us rights. The founders believed we have “natural rights” by virtue of being human; the Bill of Rights was meant to keep government—not your boss or your mother– from infringing upon those natural rights.

Today, we have groups on the political right who “know best” what books we should read, what prayers we should say, and who we should be permitted to love. We see groups on the political left shutting down speech with which they disagree, and advocating censorship of materials they find offensive. Both groups want to use the power of government to impose “goodness” on the rest of us. The problem is, they want to be the ones who get to define goodness. If they had even a rudimentary civic education, they would know that the Constitution absolutely prohibits them from doing so. In our system, individuals have the right to make their own political and moral decisions, even when lots of other people believe those decisions are wrong.

The definition of individual liberty that emerged from the philosophical and scientific period we call the Enlightenment—the definition that was embraced by America’s Founders– is sometimes called the Libertarian Principle: it’s the principle that individuals have the right to make their own moral and personal choices—the right to “do their own thing”—until and unless they harm the person or property of someone else, and so long as they are willing to give an equal liberty to others.

Now, we can argue about what constitutes harm, and when the majority, acting through government, is entitled to step in and keep people from doing something. But we can’t take the position that “Freedom is for me, but not for you.”

When people are ignorant of constitutional history, when they fail to understand that the central constitutional issue is the use and abuse of the power of government, they confuse support for constitutional rights with support for unpopular uses of those rights. The issue is who decides what books you read—not the merits of the books you choose. You get to decide what God you worship, or whether you worship at all; government doesn’t get to make that decision for you.

The central issue for civil libertarians is the power of government—or popular majorities working through government—to compel individual behaviors or infringe personal liberties. When people don’t understand that, when they don’t understand when government can properly impose rules and when it can’t, when they don’t understand the most basic premises of our legal system, our public discourse is impoverished and ultimately unproductive. We’re back to arguing whether this podium is a table or a chair.

Governments are human enterprises, and like all human enterprises, they will have their ups and downs. In the United States, however, the consequences of the “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based upon covenant, upon an idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have. We don’t share a comprehensive worldview. What we do share is a set of values, a set of democratic institutions and cultural norms, a legal system that emphasizes the importance of fair processes–and when we don’t trust that our elected officials are obeying those norms, when we suspect that they are distorting and undermining the underlying mechanics of democratic decision-making, our government doesn’t function properly. Right now, America is facing some very troubling attacks on essential democratic institutions, and those attacks are undermining public trust in government.

Let’s begin with the assault on the most basic premise of self-government in democratic systems: the value of your vote. There are a number of ways politicians in both parties suppress voter turnout, but the single greatest threat to the value of your vote is gerrymandering.

Today, thanks to partisan redistricting, what we call gerrymandering, only one out of twenty Americans lives in a genuinely competitive Congressional District.

Think about that for a minute.

America has become a country where—as Common Cause puts it—legislators are choosing their voters rather than the other way around.

You probably know how gerrymandering works; after each census, state legislatures draw new legislative and Congressional districts to “even up” the number of voters in each district. The party that controls the legislature gets to control the process, and its goal is to draw as many “safe” seats as possible–more for the party in power, of course, but also for the minority party, because in order to keep control, the winners need to cram as many of the losers into as few districts as possible, and those districts are also safe. Legislators of both parties have engaged in this effort since the time of Vice-President Gerry, for whom the process is named –and he signed the Declaration of Independence! —but it was pretty hit or miss until computers came along to make the process far, far more precise.

Neighborhoods, cities, towns–even precincts–are evaluated solely on the basis of voting history, and then broken up to meet the political needs of mapmakers. Numbers are what drive the results–not compactness of districts, not communities of interest, and certainly not democratic competitiveness. (I will point out that the numbers used for these calculations are previous votes—if we could get a significant number of people who haven’t been voting to the polls, there would be far fewer safe seats.)

Some of the results of this partisan process are obvious:

Safe districts create unresponsive legislators. If you are guaranteed victory every election, it is hard to be motivated and interested, easy to become lazy and arrogant. Safe seats allow politicians to scuttle popular measures without fear of retribution.

These are a few of the more obvious effects of gerrymandering, and they are all worrisome. But there are two other consequences that deserve special attention, because they undermine government legitimacy and are inconsistent with democratic self-government.

First of all, lack of competitiveness breeds voter apathy and reduced political participation. Why get involved when the result is foreordained? Why donate to a sure loser? For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner? Why volunteer or vote?

It isn’t only voters who lack incentives for participation: it is very difficult to recruit credible candidates to run on the ticket of the “sure loser” party. As a result, in many of these races, even when there are competing candidates on the general election ballot, the reality is usually a “choice” between a heavily favored incumbent and a marginal candidate or sacrificial lamb who offers no genuine challenge. And in increasing numbers of statehouse districts, the incumbent or his chosen successor is unopposed even by a token candidate. Of the 100 seats in the Indiana House last November, all of which were on the ballot, 32 candidates ran unopposed.

We hear a lot about voter apathy, as if it were a moral deficiency. Allow me to suggest that it may be a highly rational response to noncompetitive politics. Watch those same “apathetic” folks at a local zoning hearing when a liquor store wants to move in down the street! Rational people save their efforts for places where those efforts can actually make a difference, and thanks to the increasing lack of electoral competitiveness, those places often do not include the voting booth.

Second, and even more pernicious, gerrymandering has contributed to the polarization of American politics, and our current toxic political discourse. When a district is safe for one party, the only realistic way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is effectively the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. So Republican incumbents will be challenged by the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they leave a powerful incentive for the incumbent to toe the line– to placate the most extreme elements of the party. Instead of the system working as intended, with both parties nominating folks they think will be most likely to attract support from a broad constituency, we get nominees who have been chosen by the most extreme voters on each side. Then we wonder why they can’t compromise and get the people’s business done!

Until and unless we eliminate gerrymandering, whoever we send to Washington will be stymied by the gridlock that is an inevitable consequence of the current system. And–perhaps even worse– reduced voter participation has significant implications for the legitimacy of government action. Is a Representative truly representative when he/she is elected by 10% or 20% of the eligible voters in the district?

This year, the United States Supreme Court will hear an enormously important case: Gill v.Whitford. The Court has previously ruled racial gerrymandering—districts purposely drawn to disenfranchise members of minority groups—unconstitutional, but it has yet to strike down partisan gerrymandering, because the Justices haven’t had a test, a formula that they could rely on to show that districts were intentionally drawn to disadvantage the other party.  A couple of professors have developed such a test, and in a Wisconsin case, a three-judge federal panel applied that test, ruled that the maps were an unconstitutional gerrymander, and ordered the Wisconsin Legislature to redraw them.

If the Supreme Court agrees with that three-judge panel, we may finally have a tool to force State Legislatures to reform their redistricting practices. We shouldn’t kid ourselves that it will be easy; elected officials aren’t going to cheerfully relinquish the tools that have given them power. It will take civic pressure, political will and probably additional litigation. But eventually, we might live in a country where more than one in twenty Americans has an actual legislative choice at the ballot box.

Gerrymandering is what we call a systemic issue, and we Americans aren’t very good at recognizing the importance of systems. We’ve recently become more aware of the way the Electoral College works, but only because in two of the last four elections, the person who won the Presidency lost the popular vote. In the wake of Citizens United, people are beginning to understand how special interests with lots of money can undermine democracy. And in the wake of Charlottesville, we can see what happens when we fail to address and reject the systemic racism that too many people have accommodated for too many years.

In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and different kinds of power struggles, and they aren’t all equal. When we argue from within a common understanding of what I call the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds as Americans, and learn how to bridge our differences. When we allow powerful partisans to rewrite our history, pervert our basic institutions, and distort the rule of law, we undermine the American Idea and erode the trust needed to make our democratic institutions work.

So—to answer the question I asked at the beginning of this talk, civic ignorance matters. When we don’t understand how our systems are supposed to work, we don’t recognize when they have become corrupted, and we can’t fix our problems. Without that shared ground—without that common understanding of our nation’s foundations and commitments– we can have no dialogue, reach no agreement. Without it, we can’t repair our broken government.

My generation has failed yours. It will be up to you and your peers to reclaim, revitalize and restore the American Idea—to make this the country we like to believe it is: one nation, with liberty and equal justice for everyone.

We have a long way to go.

Thank you.

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Pence’s Protege?

Yesterday’s New York Times highlighted an amicus brief filed by prominent Republicans in the  gerrymandering case that will be heard by the Supreme Court this session.

Current and former GOP luminaries– including John McCain of Arizona; Gov. John R. Kasich of Ohio; Bob Dole, the former Republican Senate leader from Kansas and the party’s 1996 presidential nominee; the former senators John C. Danforth of Missouri, Richard G. Lugar of Indiana and Alan K. Simpson of Wyoming; and Arnold Schwarzenegger, a former governor of California–urged the Court to end the partisan redistricting that “has become a tool for powerful interests to distort the democratic process.”

Then there’s Indiana Attorney General Curtis Hill, who joined a very different “friend of the Court” brief, arguing that some partisanship is inevitable when legislators draw districts, there’s nothing “invidious” or improper about that reality, and even if there is, there’s no way for the Court to prove it.

So there!

Other than Hill, I have been pleasantly surprised by Indiana’s current Republican administration. Governor Holcomb seems eminently sane, and has focused on issues of governance–the “nitty-gritty” that Mike Pence ignored in favor of his crusades against Planned Parenthood, reproductive choice and gay people. Our current Superintendent of Public Instruction has actually demonstrated knowledge of and support for public education–a welcome change from the last Republican to hold that position.

Attorney General Hill is the exception. I knew nothing about him before his election, and not much more now, but his more newsworthy activities have been troubling, to say the least. It isn’t just his enthusiastic defense of gerrymandering–a position not universally shared even among Indiana Republicans. (The reform bill that failed in Indiana’s last legislative session was co-sponsored by Republican Representative Jerry Torr and Republican Speaker of the House Brian Bosma, both of whom evidently recognize that the process is pernicious.)

Hill has also clashed with the Centers for Disease Control over needle exchange programs. According to Indiana Public Media, Hill is accusing the federal Centers for Disease Control and Prevention of manipulating facts in order to push a “pro-needle-exchange agenda.” Hill insists that needle exchange programs increase drug use, a claim that medical research has consistently debunked.

The new U.S. Surgeon General (and former Indiana Health Commissioner) Jerome Adams has been a vocal proponent of syringe exchanges.

“There’s been no evidence that [a syringe exchange program] increases drug use,” says Dennis Watson, a researcher at the Fairbanks School of Public Health. On the contrary, he says, exchange programs can actually decrease the amount of injection drug use…

A Seattle-based study found that syringe exchange participants were five times more likely to enter treatment than those who didn’t participate.

Perhaps Hill hasn’t had time to review evidence about gerrymandering or the results of needle exchange research, since–as the Indianapolis Star recently reported–he has been busy redecorating his offices.

Indiana Attorney General Curtis Hill is spending hundreds of thousands of dollars on office renovations and a new state vehicle, sparking criticism from some budget leaders.

The renovations underway at Hill’s Statehouse office are expected to cost about $279,000. That includes $78,000 for new furniture, $71,000 for historic replica painting and $2,500 for seven reclaimed chandeliers. The six-room office is home to Hill and 10 to 15 of his top staffers.

Of course, Hill has found time to appeal rulings that favored Planned Parenthood, that protected the rights of LGBTQ citizens and that allowed police to pat down people to determine whether they’re carrying guns.He’s a perfect partisan culture warrior.

Mike Pence must be so proud…..

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Another Look At Gerrymandering

This week, the Supreme Court will hear oral arguments in an important gerrymandering case on appeal from Wisconsin. Regular readers are undoubtedly tired of my posts about gerrymandering, but this seems an apt time to share remarks I recently made to the Washington Township Democratic Club, summarizing the issues.

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I’ve always believed that gerrymandering is a frontal assault on democracy, but a recent electoral analysis from the Cook Report really brought home the extent of that assault: one out of twenty Americans currently lives in a competitive Congressional District.

Think about that for a minute.

How did we get to a place where—as Common Cause puts it—legislators are choosing their voters rather than the other way around? And what can we do about it?

Let me address three aspects of our current situation: first, a brief recap of the effects of partisan redistricting;  second, an even briefer reference to the academic literature on the subject; and finally, the possibility that an upcoming Supreme Court case will provide a legal remedy.

First, a recap:

As we all know, whichever party holds a majority in the statehouse in the year following the census wins the privilege of drawing maps that will control the political agenda for the state for the ensuing ten years.

1) the goal is to draw as many “safe” seats as possible–more for the party in charge, of course, but also for the minority party, because in order to retain control, the winners need to cram as many of the losers into as few districts as possible, and those districts are also safe. This process is sometimes called “cracking” and “packing.” We have engaged in this effort since the time of Vice-President Gerry, for whom the process is named –and he signed the Declaration of Independence!– but computers have made the process far, far more efficient.

2) Neighborhoods, cities, towns, townships–even precincts–are evaluated solely on the basis of voting history, and then broken up to meet the political needs of mapmakers. Numbers are what drive the results–not compactness of districts, not communities of interest, and certainly not democratic competitiveness. (I will point out that the numbers used for these calculations are previous votes—if we could get a significant number of people who haven’t previously voted to the polls, there would be far fewer safe seats.)

Some of the results of this partisan process are obvious:

1) The interests of cities, neighborhoods, etc., are less likely to be represented.

2) Safe districts create sloppy legislators: if you are guaranteed victory every election, it is hard to be motivated and interested, easy to become lazy and arrogant.

3) Party preoccupation with gerrymandering consumes an enormous amount of money and energy that could arguably be better directed.

4) Safe seats allow politicians to scuttle popular measures without fear of retribution: Milo Smith, for example, occupies a safe seat in Bartholomew County, and felt perfectly free to single-handedly kill redistricting reform last year.

5) Lack of competitiveness also makes it very difficult to trace campaign donations, since unopposed candidates send their unneeded money to those running in competitive districts. So when the folks with “Family Friendly Libraries” send a check to Rep. Censor, who is unopposed, he then sends it to Sen. MeToo, who is in a hot race; but Sen. MeToo’s campaign report shows only a contribution from Rep. Censor.

These are just a few of the more obvious effects of gerrymandering, and they are all worrisome. But there are two other consequences that deserve special attention, because they undermine the very foundations of democracy.

First, the lack of competitiveness breeds voter apathy and reduced political participation. Why get involved when the result is foreordained? Why donate to a sure loser? For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner? Why volunteer or vote?

It isn’t only voters who lack incentives for participation: it is very difficult to recruit credible candidates to run on the ticket of the “sure loser” party. As a result, in many of these races, even when there are competing candidates on the general election ballot, the reality is usually a “choice” between a heavily favored incumbent and a marginal candidate who offers no new ideas, no energy, and no genuine challenge. And in increasing numbers of statehouse districts, the incumbent or his chosen successor is unopposed even by a token candidate. Of the 100 seats in the Indiana House last November, all of which were on the ballot, 32 candidates ran unopposed.

We hear a lot about voter apathy, as if it were a moral deficiency of the voters. Allow me to suggest that it may be a highly rational response to noncompetitive politics. Watch those same “apathetic” folks at a local zoning hearing when a liquor store wants to go in down the street! Rational people save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness, those places often do not include the voting booth.

Second, and even more pernicious, gerrymandering has contributed to the polarization of American politics, and our current gridlock. When a district is safe for one party, the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is effectively the general election, the battle takes place among the party faithful, who also tend to be the most ideological of voters. So Republican incumbents will be challenged by the Right and Democratic incumbents will be attacked from the Left. Even where those challenges fail, they leave a powerful incentive for the incumbent to toe the line– to placate the most rigid elements of the party. Instead of the system working as intended, with both parties nominating folks they think will be most likely to attract support from a broad constituency, we get nominees who have been chosen by the most extreme voters on each side of the philosophical divide. Then we wonder why they can’t compromise and get the people’s business accomplished!

Until and unless we eliminate gerrymandering, whoever we send to Washington will by stymied by the intransigence and gridlock that is an inevitable consequence of the current system. And–perhaps even worse– reduced voter participation has significant implications for the legitimacy of government action. Is a Representative truly representative when he/she is elected by 10% or 20% of the voters in the district?

Eliminating gerrymandering won’t magically make all districts competitive. (Big Sort) But when I was doing research for an academic article on redistricting, I was stunned by the number of scholars who simply dismissed the role of redistricting in the creation of safe districts—they attributed the well-documented incumbency advantages to things like better fundraising and weak opponents. I hate to be snarky, but that’s what you get from people whose understanding of politics is entirely abstract, and divorced from real-world experience. Of course incumbents raise more money and have weak opponents—it’s because they have safe seats. File under “duh.” (Reading those articles reminded me of Lee Hamilton’s remark—I think it was in the wake of Citizens United –to the effect that the Supreme Court could do with fewer Harvard Law graduates and more Justices who had once been county sheriffs….)

Interestingly, I found one of the best and most complete reviews of recent scholarly literature on the effects of partisan redistricting in an amicus brief filed by Thomas Mann and Norman Orenstein in the case of Harris v. Arizona Redistricting Commission. Mann is a Democrat and Orenstein is—or at least was—a Republican; they are both political scientists and they’ve written extensively about redistricting. In the brief, they cited to studies that tied redistricting to the advantages of incumbency, and they also made an interesting point that I’d not previously considered: the reliance by House candidates upon maps drawn by state-level politicians operates to reinforce what they described as “partisan rigidity.” (If you want to see how that works, I recommend Ratfucked, a recent and very informative book that documents the Republicans’ nationwide gerrymander in 2010.)

Mann and Orenstein also cited to a really interesting article in which researchers investigated whether representatives elected from districts drawn by independent commissions are less partisan. This matters, because redistricting reform is unlikely to change state-level party dominance. We all know that even if Indiana reforms its redistricting practices, Republicans will continue to control the state, albeit probably not with today’s Super-Majority. This will still be a Red State. Would the Republicans elected from non-gerrymandered districts suddenly become less partisan? Surprisingly, the answer is yes. Here’s the conclusion of the scholars who researched that question.

“Contrary to the initial expectations of the authors, the evidence reviewed here suggests that politically independent redistricting seems to reduce partisanship in the voting behavior of congressional delegations from affected states in statistically significant ways.”

Changing redistricting practices through the political system is a pretty daunting task, as we’ve seen here in Indiana. So let me just conclude by addressing the prospects for a court-imposed solution.

As most of you know, the Court has refused to allow racially discriminatory redistricting. But it has declined to intervene in the handful of cases it has heard alleging partisan redistricting, for a couple of reasons.

In fact, the Court only narrowly held that claims of partisan gerrymandering are justiciable under the 14th Amendment’s Equal Protection Clause—four Justices would have ruled that gerrymandering is a “political question” and the Court shouldn’t even hear such challenges. Even the five Justices who agreed that the Court could properly intervene concluded that a discrepancy between the percentage of votes garnered by a political party and the number of seats that party ultimately won was insufficient to demonstrate both partisan purpose and effect.

The problem the Court identified was lack of a reliable standard or formula for determining when a district had been intentionally gerrymandered. The Court has held that plaintiffs must prove both discriminatory intent and discriminatory effect, and that “unconstitutional discrimination occurs only when an electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.”  Proving that requires a test that the Court can apply, and as of the last challenge heard by the Court, no such test had been developed.

Until now.

In “Partisan Gerrymandering and the Efficiency Gap,” two political science professors from the University of Chicago proposed a standard they call the “efficiency gap,” using the concept of “wasted votes.”  The efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. “Wasted” votes are ballots that don’t contribute to victory for candidates; they may be lost votes cast for candidates who are defeated, or surplus votes cast for winning candidates in excess of what they needed to win. When a party gerrymanders a state, it tries to maximize the wasted votes for the opposing party while minimizing its own, and that produces an efficiency gap. In a state with perfect partisan symmetry and no gerrymandering, both parties would have the same number of wasted votes. As a matter of simple arithmetic, the efficiency gap is equal to a party’s undeserved seat share.

in Gill v.Whitford, Democrats are relying on the efficiency gap test to demonstrate gerrymandering in Wisconsin. The state has appealed from a judgment by a three-judge federal panel that applied the test, ruled that the maps were an unconstitutional gerrymander, and ordered the Wisconsin Legislature to redraw them.

If the Supreme Court agrees with that three-judge panel, we may finally have a tool to force State Legislatures to reform their redistricting practices. We shouldn’t kid ourselves that it will be easy; elected officials aren’t going to cheerfully relinquish the tools that have given them power. It will take civic pressure, political will and probably additional litigation.

But eventually, we might live in a country where more than one in twenty Americans has an actual legislative choice at the ballot box.

Thank you.

 

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Votes That Count…

Vox recently had a provocative article advocating “proportional voting,” and claiming that the institution of such a voting system would solve two of America’s thorniest political problems: partisan polarization and the number of “wasted” votes.

A bit of background: we currently have an electoral system in which–as the article says– your vote is far more likely to shape Congress if you live in Des Moines than if you live in San Francisco.(Rural votes also count more than urban ones for President, thanks to the Electoral College.) The system thus undermines accountability and vastly increases polarization.

Polarization is often described in terms of red states and blue states, but it is a significant problem at the Congressional-district level across all the states. It’s also a more complex story than is usually suggested: Gerrymandering, or the partisan redrawing of district lines — a frequent object of complaint on the left —- has undoubtedly helped make some districts more unshakably Republican. (Democrats play the gerrymandering game, too, but they have had less opportunity.)

This polarization could be addressed by moving more liberal city-dwellers to more rural areas of the country, or ridding ourselves of the Electoral College–remedies that will be instituted right after hell freezes and pigs fly.

On the other hand, we might be able to pass the Fair Representation Act, introduced by Democratic Representative Don Beyer of Virginia. If passed, that Act would change our current voting system to one of proportional representation.

Whatever the causes of polarization, there is a relatively straightforward solution to our current predicament that has been embraced by most advanced industrial democracies: proportional representation. There are many versions of this approach, but they all involve some way of electing multiple people, at once, to represent a region. In a proportional system, parties representing as little as 1 percent of the electorate can gain representation, though the most stable systems usually have a threshold percentage level to prevent truly marginal parties from gaining seats. The regions can be as large as an entire nation — but even when they are smaller they tend to be larger than the 435 tiny US congressional districts, each of which is run according to the “winner take all” principle.

Under a proportional system, if you want to live in a big, liberal city in a liberal state, you don’t give up the chance to make a difference with your vote. There is also very little possibility for consequential gerrymandering in proportional representation systems, since districts tend to be so big that there’s not much to gain from alternative line-drawings.

Proponents of this approach point out that it makes third parties more viable, which means that more parties are competing for voters. They also note that because voters feel that their votes actually matter, proportional representation systems tend to have higher voter turnout.

The problem this proposal aims to cure is very real: thanks to residential “sorting” and gerrymandering, in today’s America only about one in 20 of us lives in a place that is likely to have a competitive House election.

The reality of the problem is one thing; whether proportional voting–or multi-member districts–is the right solution is another. In my state, we moved away from multi-member districts in order to increase accountability; at the time, the argument was that larger districts and multiple representatives attenuated the relationship between representatives and those they served.

I’m not sure what changes are most likely to be effective, let alone able to be adopted. I do know that America is no longer either a democracy or a republic. We can’t go on much longer with a “system” this dysfunctional, and “band-aid” prescriptions are unlikely to be effective.

What to do?

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It’s All About Turnout

Many Americans are convinced that gerrymandering–while admittedly a bipartisan offense–  has operated since 2011 to given Republicans power vastly disproportionate to their vote margins. (If you don’t believe that, read Ratf***ked).

I for one am thrilled that the Supreme Court will take up the issue during its coming term, and I’m cautiously optimistic that the new statistical and analytical tools that can distinguish between purposeful game-playing and “luck of the draw” redistricting will persuade the court to abandon its prior reluctance to weigh in–a reluctance based largely upon the absence of such tools.

That said–and fingers crossed–David Leonhardt made a critically-important point in a recent New York Times column.

If liberals voted at the same rate as conservatives, Hillary Clinton would be president. Even with Donald Trump’s working-class appeal, Clinton could have swept Michigan, Wisconsin and Pennsylvania.

If liberals voted at the same rate as conservatives, Democrats would control the Senate. Clinton or Barack Obama could then have filled the recent Supreme Court vacancy, and that justice would hold the tiebreaking vote on campaign finance, labor unions and other issues.

If liberals voted at the same rate as conservatives, the country would be doing more to address the two defining issues of our time — climate change and stagnant middle-class living standards.

Leonhardt’s point is important, and too often overlooked.

Even the most sophisticated gerrymandering is based upon prior voter turnout in the areas involved. If polling and survey research are correct, a majority of Americans hold progressive policy preferences–but large numbers of them don’t express those preferences at the polls. They don’t vote. To repeat the obvious, gerrymandering is based upon prior voting patterns.

I vividly remember conversations with John Sweezy, then the Marion County Republican Party Chair, back when I was a Republican. At the time (late 1970’s) Indianapolis/Marion County was safely Republican; it remained that way for thirty-two years. Even then, however, with the GOP in firm control of every local office, Democrats in the county outnumbered Republicans by a margin of 3-2.  Had the same percentage of registered Democrats voted as Republicans, they’d have won those offices. As John said more than once, “Thank God, Democrats don’t vote.”

It’s all about turnout. Even supposedly “safe” legislative districts can be won by the “loser” party if that party can generate a sufficient increase in turnout.

There are all kinds of theories about why Democratic turnout lags that of the Republicans, and several of those theories have explanatory power. Right now, the more important question is: how do we motivate these voters? How do we convince them that their votes really can make a difference, that the game hasn’t been so rigged by gerrymandering and crazy Voter ID requirements and inconvenient polling places and the like that it just isn’t worth the effort?

As Leonhardt says,

What can be done? First, don’t make the mistake of blaming everything on nefarious Republicans. Yes, Republicans have gerrymandered districts and shamefully suppressed votes (and Democrats should keep pushing for laws that make voting easier). But the turnout gap is bigger than any Republican scheme.

Second, keep in mind that turnout is a human-behavior problem. It involves persuading people to change long-established habits. And there is a powerful force uprooting all kinds of habits today: digital technology.

More specifically, smartphones are changing how people interact with information. I’d encourage progressives in Silicon Valley to think of voting as a giant realm ripe for disruption. Academic research by Alan Gerber, Donald Green and others has shown that peer pressure can lift turnout. Smartphones are the most efficient peer-pressure device ever invented, but no one has figured out how social media or texting can get a lot more people to the polls — yet.

Even a really good gerrymandering decision from the Supreme Court will be followed by years of state-level game-playing and obstruction–in both red and blue states. But we can work on turnout right now.

Democrats don’t have to “peel off” Republican voters, a tactic that failed to deliver Tuesday in Georgia. We just have to get the people who already agree with us to the polls.

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