gerrymandering – Page 14

Advice and Consent and Gerrymandering

Sometimes, it’s illuminating to connect the dots.

Senate Republicans are refusing to hold hearings to consider a nominee to replace Antonin Scalia, and I have been critical of that refusal (by “strict constructionists,” no less) to discharge their constitutional duty. A reader emailed to say the Democrats would probably do the same if the political roles were reversed; I replied that I hoped they would at least be more subtle about it—go ahead and have hearings, and then reject the nominee.

His essential point, of course, was that both parties’ excessive partisanship and the polarization that characterizes today’s politics threatens our ability to govern ourselves, and he’s right.

One of the reasons for that excessive partisanship is gerrymandering. (And yes, I know that Senate seats cannot be gerrymandered. Bear with me here.)

I have posted for years about the anti-democratic effects of gerrymandering. As I have repeatedly noted, gerrymandering contributes to political polarization and gridlock; in safe districts, 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, in effect, 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 rigid elements of each party. Instead of the system working as intended, with both parties nominating folks they think will be most likely to appeal to the broader constituency, we get nominees who represent the most extreme voters on each side of the philosophical divide.

The consequence of ever-more-precise state-level and Congressional gerrymandering has been a growing philosophical gap between the parties and— especially but not exclusively on the Republican side— an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

In a post to SCOTUSblog considering the current standoff and potential nominees, Tom Goldstein makes two points in passing that illuminate this toxic situation. Noting that the political parties are in “a deadly embrace from which neither will easily budge,” he says

The administration feels a constitutional responsibility to press for the confirmation of a nominee and every political advantage in doing so. Republicans cannot accede to that effort because their base will not permit it.

After suggesting that the GOP will eventually choose to pursue the “slow walk and reject” option, he predicts that Senate Republicans will vote to reject “essentially as a block. Any other course than a decisive vote against the nominee invites a certain primary challenge from conservatives in the next election.” (emphasis mine)

What gerrymandering has done is radicalize the political bases. It is naive to assume that the consequences of that radicalization are confined to carefully-drawn, noncompetitive state legislative districts and House Districts.

Making matters worse, many of the most impassioned members of those radicalized bases—in both parties—have very tenuous understandings of how American government actually works, let alone the country’s history or constitutional principles. They are ripe for demagoguery and bumper-sticker slogans.

They are the electorate that gerrymandering has helped to create, and they are the electorate to which Senate Republicans are pandering.

Connect the dots.

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Arizona and a Sigh of Relief

Among the end-of-term decisions handed down by the Supreme Court was Arizona State Legislature v. Arizona Independent Redistricting Commission. It was an important case–had the legislature prevailed, it would have dealt a near-fatal blow to the ability of good government groups to address the practice of gerrymandering.

Some years back, via a referendum, Arizona citizens struck a blow against gerrymandering by establishing a nonpartisan commission to draw its election maps. The state legislature sued, asserting that language in the Constitution limits the right to regulate national elections to Congress and state legislatures.

In a decision that legislative scholar Tom Mann called “a model of constitutional reasoning,” a divided Court upheld the right of citizens to determine who shall

…have the ultimate authority over who shall represent them in public office. The majority opinion quotes Madison to powerful effect: “The genius of republican liberty seems to demand . . . not only that all power should be derived from the people, but those entrusted with it should be kept in dependence on the people.”

As Richard Pildes wrote in a New York Times Op-Ed,

The main, and best, justification for direct democracy is precisely the need for this kind of check, just as the voters in Arizona exercised, on the self-interested temptations of power when legislators regulate the political process itself.

Direct democracy is hardly a panacea or a pure expression of “the popular will,” whatever that means; voters must be organized and informed, which takes resources and organizational skill. Still, direct democracy remains an important means of policing the inevitable temptations those in power have to entrench themselves more securely in power.

On Monday the court rightly recognized that, when the Constitution assigned the elections clause power to the “legislatures,” the framers were not making a judgment about whether states could create direct democratic processes as another way to regulate the national election process. Unlike their rejection of popular Senate elections, the framers did not reject popular regulation of elections: They just never considered the idea. To reject it in their name, the court wisely concluded, would have been perverse.

It isn’t easy to rein in the self-interested process of legislative line-drawing under even the best of circumstances; those who have power only surrender that power when they have no choice. Had the Arizona legislature’s challenge succeeded, redistricting reform would be virtually impossible.

File this one under “dodged a bullet.”

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Speaking of Inequality…

There is enormous focus these days on economic inequality, and for good reason. The gap between the top 1% and other Americans is growing, the middle class that built the country and ensured social stability is shrinking, and the likely consequences of those phenomena aren’t pretty.

In the United States, our Constitution guarantees us only equality before the law. Critics may quote Anatole France for the proposition that “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread,” but there is much to be said for a system that protects individual liberties against encroachments by the state. In such system, however, efforts to ameliorate material deprivations are statutory, not constitutional, and as we continue to be reminded, statutory entitlements are vulnerable to efforts to punish poor people for their misfortune.

Most public discourse around “equality” tends to focus on these issues of legal and economic equality and the relationship—or conflict—between the two. We rarely focus on a third kind of equality—democratic equality—despite the fact that it has a major influence on whether the country achieves the others.

Democratic equality simply means the equal right of each citizen to participate in the democratic process. It probably won’t come as a surprise to find that we aren’t doing terribly well on that front, either.

The influence of money in politics has grown exponentially since the Supreme Court’s ill-considered decision in Citizens United. (Actually, the problem started earlier, with the case of Buckley v. Valeo, when the Court first conflated money with speech) The result has been that those with money are able to “speak” much more loudly and effectively than the rest of us. When democracy becomes “pay to play,” there is no equality of participation.

It isn’t just money. In Indiana—which is unfortunately not an outlier— the legislature has used its power to make it more difficult to vote.

We have one of the strictest Voter ID laws in the nation—in order to cast a ballot, you must not only have a government-issued picture ID, that ID must have an expiration date. (This conveniently excludes the picture IDs issued by state universities.) Middle-class folks assume that it’s simple enough to obtain such identification, but for poorer people—particularly older black citizens who were born at home and lack a birth certificate—getting the necessary documentation can be both onerous and costly. (Despite pious rhetoric about deterring “voter fraud,” fraudulent in-person voting is virtually nonexistent.)

The Indiana legislature has also declined to enact other measures that encourage or facilitate voting by working-class Americans: keeping the polls open past six, establishing convenient voting centers, expanding early and absentee voting.

It’s bad enough that lawmakers see fit to erect barriers to voting rather than making it easier. But as I have previously posted, the most serious denial of democratic equality comes through partisan gerrymandering that produces an abundance of “safe” seats and eliminates voter choice.

Increasingly, especially at the state level, our legislators choose their voters—the voters don’t choose their representatives. So even when disadvantaged folks make it past the obstacles and manage to cast their ballots, they often find they are given no meaningful choice. A growing number of elections are uncontested.

As a result of democratic inequality, the people who would benefit most from the election of candidates willing to work for legal and/or economic equality have less access, less influence and less voice than their more privileged neighbors.

The system is broken.

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Voter Apathy?

Today, I’m participating in an event on partisan redistricting hosted by the League of Women Voters and Common Cause. Following are the remarks I will share:

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Indiana had the lowest turnout rate in the nation in the last midterm elections. There are a number of reasons for that depressing statistic.

First of all, although Hoosiers are rarely in the vanguard of anything, we do remain on the cutting edge when it comes to voter suppression tactics—to begin with, we were among the very first states to pass a so-called “voter ID” law, and ours remains one of the nation’s strictest. For example, it isn’t enough to have a government issued picture ID; it must also have an expiration date.(Unlike, for example, student IDs.)

The legal challenge to that law was unsuccessful largely because its actual operation was speculative at that point; since the Seventh Circuit rejected that challenge, it has become clear even to Judge Posner, who voted to uphold the law, that its sole purpose was to discourage voting by poor and minority voters who might be expected to vote for Democrats. Voter ID laws were a “remedy” for a non-existent problem—in-person voter fraud.

But the lawmakers in what Harrison Ullmann used to call the World’s Worst Legislature haven’t rested on their laurels: this last session, lawmakers voted down an effort to keep the polls open until 8:00—Indiana’s polls close at 6:00, much earlier than most states. This makes it much more difficult for non-professional working people to vote. Lawmakers have also left in place the ability of a single member of a county election board to prevent the establishment of a voting center. Here in Marion County, the Republican member of the election board has persistently blocked efforts to do so. Wouldn’t want to make voting more convenient!

Laws making voting more onerous are only one reason among many for low voter turnout and disappointing citizen engagement. I am going to suggest three others that combine to depress interest in government and the electoral process: gerrrymandering, widespread distrust of government, and low levels of civic literacy. Today, our focus is on gerrymandering.

Every ten years, the Indiana General Assembly engages in what individual legislators will call redistricting, and what the rest of us will call gerrymandering, after former Vice-President Elbridge Gerry. It will be an intensely partisan endeavor—and that’s true no matter which party is in charge—and it will be viewed by most Hoosiers as highly technical and profoundly boring.

That redistricting, however, will have a much greater effect on how Indiana is governed for the ensuing decade than most, if not all, of the votes cast in the elections that will follow. Whichever party wins a majority in the November elections preceding redistricting wins the privilege of drawing the new maps—and those maps will have an outsized influence over the political agenda for the state.

The goal, of course, 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, which makes those districts safe as well. While we have engaged in this effort since Vice-President Gerry’s time (and he signed the Declaration of Independence!), the advent of computers has made the process far, far more efficient—and arguably, far more damaging.

Neighborhoods, cities, towns, townships–even precincts–are evaluated solely on the basis of their 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.

Let’s tick off some of the more obvious results of this process:

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

2) Safe districts enable sloppy legislation and dubious ethics: if you are guaranteed victory every election, it is hard to be motivated and interested, easy to become lazy and arrogant. (Eric Turner was a recent example. There are many others.)

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: at the federal level, campaign finance reform is just one example.

5) Lack of competitiveness also makes it impossible 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; there are plenty of others. Two of those other consequences that may be less obvious deserve special attention and concern.

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, when those efforts are pointless? Not only do voters lack incentives for participation: it becomes increasingly difficult to recruit credible candidates to run on the ticket of the “sure loser” party. The result is that in many of these races, voters are left with a choice between the anointed and the annoying–marginal candidates who offer no new ideas, no energy, and no genuine challenge of any sort. Such contests simply exacerbate voter apathy.

You may think I am exaggerating–after all, how many “safe” districts can there be? Well, let me tell you–our legislators may not be the swiftest when it comes to a lot of issues, but they have self-perpetuation down to a science. In 2014, there were 25 state Senate districts up for election. In 11 of them, there was only one major party candidate running. A total of 2 Democrats and 9 Republicans were guaranteed election barring unforeseen circumstances.

Two major party candidates faced off in the general election in only 14 of the 25 districts up for election that year. And that’s not an anomaly.

As a friend of mine has aptly put it, “Almost half of our representatives and senators did not have to conduct a pesky campaign that required a defense of past service or a dialogue over local issues.”

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 the local zoning hearing when a liquor store is applying for permission to locate down the street! I would suggest that people save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness, those places may NOT include the voting booth.

Second, gerrymandering has contributed to the polarization of politics, and the gridlock it causes. How? Because when a safe district effectively disenfranchises voters in one party, the only way to oppose an incumbent is in the primary–and that generally means that the challenge will come from the “flank” or extreme. In competitive districts, nominees know that they have to run to the middle in order to win a general election. When the primary is, in effect, the general election, the battle takes place among the base voters, the party faithful– who also tend to be the most ideological. So Republican incumbents will be challenged from 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 and ideological elements of each party. Instead of the system working as intended, with both parties nominating folks they think will be most likely to win among the broader constituency, we get nominees who represent the most extreme voters on each side of the philosophical divide. Then we wonder why the winners can’t compromise and get the people’s business accomplished!

There are significant policy implications of a victory for the Republicans or Democrats: to the extent that the parties represent different philosophies—and these days, they unquestionably do– a victory in November means getting the “edge” for ten years in imposing one of those philosophies on Indiana government, and effectively disenfranchising not only those who vote for the other party, but also the more moderate voters in their own ranks.

Perhaps the worst consequence of all this is that reduced participation in the political process, and the well-founded belief that large numbers of citizens have been rendered voiceless and politically impotent, has significant implications for the legitimacy of government.

Is a Representative truly representative when he/she is elected by 10% or 20% of the eligible voters in the district?

Of course, there are reasons other than partisan redistricting for the growth of safe seats. In “The Big Sort,” Bill Bishop detailed the increasing tendency of Americans to live in areas where others share their values. We can’t eliminate such residential “self-sorting,” a phenomenon that has given us bright blue cities in very red states, but we can and should eliminate the intentional gerrymandering that exacerbates it. If we don’t, it really won’t matter who wins election, because the winner will encounter the intransigence and gridlock that is such a vivid consequence of the current system, especially at the federal level. That gridlock just adds to the pervasive cynicism about government, a cynicism that further reduces participation.

It is really time for the citizens of Indiana to rise up and demand changes to this system. The other speakers at this forum are far more expert than I am in the politics and laws governing redistricting, but I would suggest a few obvious elements that a fairer system should include:

1) areas of common economic interest and existing government boundaries should be respected to the greatest possible extent;

2) districts should be compact and rational in shape;

3) oddly-shaped districts clearly drawn for partisan advantage should be subject to the same standards courts now apply to districts that have been intentionally drawn to dilute the votes of racial minorities.

If political operatives can draw maps to create political advantage, they can also draw maps that are consistent with the premises of democracy.

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No Wonder Nobody Votes

As if we didn’t know.

The Washington Post recently ran an article documenting what virtually every sentient American knows: thanks to gerrymandering and residential “sorting,” elections at every level are increasingly uncompetitive–when they are contested at all.

Here’s the lede

Fewer state legislative elections were hotly contested between Democrats and Republicans in 2014 than at any time in the last 40 years, according to a new study that offered more evidence of a historically polarized electorate.

The analysis of election results from last year found less than 5 percent of the U.S. population lives in a state House or state Senate district where the two leading candidates finished within 5 percentage points of each other.

At the same time, the number of races that don’t even draw competition is on the rise. Nearly a third of voters lived in state Senate districts in which only one candidate ran, while more than 40 percent lived in state House districts with only one option. Those numbers are far higher than four decades ago, when less than a quarter of residents lived in one-candidate districts.

The question, of course, is: what do we do about it?

There are no “good guys” here–both parties aggressively seek advantage, and when in a position to call the shots, both can be counted on to draw a map as favorable as computing power can devise.

It’s common–even fashionable–to berate citizens who don’t vote. But let’s be fair: why take time out of your day to visit a polling place if there are no contests?

It won’t solve the whole problem, but the first step to re-engaging voters must be to remove redistricting from the partisan political process. Here in Indiana, Common Cause and the League of Women Voters are devoting themselves to getting that done. (They are holding a forum at the Indiana Historical Society on June 6th, devoted to the issue.)

It’s an uphill battle, but it’s one we all need to join.

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