Tag Archives: gerrymandering

Oh, Indiana….

Monday evening, I spoke to the League of Women Voters in Ft. Wayne about women, the midterms–and the effective disenfranchisement of voters in Indiana. I’m posting an abbreviated version of my remarks below.
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The results of the 2022 midterm elections stunned political observers who had anticipated a politics-as-usual rout of the party in control of the White House—especially this time, when the omens for the Democrats were very negative.

As we know, that Red wave failed to materialize. Democrats held the Senate, and lost the House by a margin small enough to complicate Republican plans to thwart Biden’s agenda. To say that these results were unprecedented is an understatement. And while it is never accurate to attribute the outcome of an election to a single cause, the data clearly points to the overwhelming importance of women voters, and their anger over Dobbs.

The Republican Party’s war on women’s autonomy is a relatively recent phenomenon. When I ran for Congress in 1980, I was pro-choice and pro-gay-rights, and I decisively won a Republican primary here in deep-Red Indiana. Since then, the GOP has become the party of fundamentalist Christians, cultural conservatives and Christian Nationalists, and in response, women voters have shown a growing preference for Democratic candidates. The Dobbs decision, overruling Roe v. Wade, supercharged what was already a substantial gender gap.

Dobbs attacked the doctrine of substantive due process, often called the right to privacy. That’s shorthand for the principle that in a free society, there are personal decisions that should not be made by government. The doctrine draws a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions that government in a free society has no business making.

The constitutional question is “who gets to make this decision?”

The deeply dishonest ruling in Dobbs would allow fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures  that have theoretically been chosen by “democratic” majorities.

I say “theoretically because in states like Indiana, gerrymandering allows lawmakers to choose their voters, rather than the other way around.

The decision in Dobbs is part of a larger problem—one that the League is clearly aware of.  I think it is fair to say that, if American democracy was working properly, it is unlikely we would be here. Our governing institutions would reflect the policy preferences of large majorities of voters. But our democracy is not working properly, and gerrymandering may be the single most destructive element of our multiple electoral dysfunctions.

Partisan redistricting undermines democracy and voter choice; in a rapidly urbanizing country, it has given rural voters—who reliably vote Republican—vastly disproportionate political power. Thanks to gerrymandering, for example, the last Republican Senate “majority” was elected with 20 million fewer votes than the Democratic “minority.” Gerrymandering has insulated lawmakers from democratic accountability. In the run-up to the 2000 election, the nonpartisan Cook Report calculated that only one out of twenty Americans lived in a genuinely competitive Congressional District.

Gerrymandering has also weakened the GOP and abetted its takeover by extremists. Thanks to the Republicans’ very skillful and successful national gerrymander in 2010–a redistricting that created a large number of deep-red Congressional districts– many of the candidates who won those districts no longer saw any reason to cooperate with national party figures, or work for the party’s national priorities.  Former Speaker John Boehner dubbed those Representatives the “lunatic caucus”–they knew that the only real threat to their re-election would come from being primaried by someone even farther to the Right, and that they would pay no price for ignoring the over-arching needs of the national party.

It is important to recognize that the erosion of democratic self-government– making a mockery of the ideal of “one person, one vote”– also poses a threat to women’s continued economic and political progress. That is because, as democratic systems falter, it is the theocrats and rightwing populists who stand ready to assume control. The growth of populism over the past decade has been global; in the United States, its appeal is based largely on nostalgia for an imaginary past in which “those people”—Black, Brown, female, gay–knew their place and no one questioned the rightful dominance of the White Christian Male. To say that such a worldview threatens women’s progress is to belabor the obvious.

Just over 100 years have passed since women finally secured the right to vote. The recent midterm elections made it very clear that most women in America have no intention of relinquishing the hard-won rights that followed enfranchisement– including the all-important right to control our own reproduction.

I don’t think it is an exaggeration to suggest that in November of this year, the votes of American women saved democracy.

But then, of course, there was Indiana. We were the only state to elect an election-denier as Secretary of State, and Indiana kept its legislative Republican super-majority

The reason Indiana is deeply uncompetitive? Gerrymandering.

I served on the legislative study committee formed in response to the efforts of the League and Common Cause, and watched as most  Republicans on that committee ignored data and evidence and the huge turnout of Hoosier voters at every public meeting who demanded reform. It became very clear that the beneficiaries of gerrymandering will never voluntarily give up the power to keep themselves in control.

Other states have combatted gerrymandering via state constitutional amendment. But Hoosiers will never have the opportunity to vote on such an amendment. Indiana has no referendum or initiation process.  Amendments to Indiana’s constitution can only be put on the ballot through referral from the legislature, and the legislature must pass precisely the same language in two separate sessions. In other words, the super-majority that benefits from gerrymandering would have to vote—in two separate legislative sessions—to put the matter to a popular vote.

That will happen when pigs fly. (Pigs may fly first…)

Gerrymandering results in voter apathy and reduced political participation. Why get involved when the result is foreordained? Thanks to the lack of competitiveness, Indiana’s turnout in the midterms was abysmal.

The creation of safe districts makes it 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 ballot, the reality is usually a “choice” between a heavily favored incumbent and a marginal opposing candidate. In many statehouse districts, the incumbent or his chosen successor runs unopposed.

So–what can Hoosier voters do?

We can certainly hope for passage of the federal “For the People Act,” which would expand voting rights, change campaign finance laws to reduce the influence of money in politics, ban partisan gerrymandering, and create new ethics rules for federal officeholders.

In Indiana, we can work through organizations like the League to get out the vote—encouraging people who have concluded that their votes won’t count to reconsider, and especially encouraging them to vote in the primaries, which are dominated by the ideological extremes in both parties. A high turnout would demonstrate that a number of supposedly safe districts aren’t so safe when more people vote..

We can try to recruit candidates in both parties who are willing to run on an anti-gerrymandering platform.

We can continue efforts to educate voters, and explain why gerrymandering is so pernicious.

And we can lobby for the right to initiate constitutional amendments.

But the reality is, in the absence of federal action, Indiana citizens who want change are effectively disenfranchised.

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Another “Be Careful What You Wish For”

As regular readers of this blog know, I am firmly convinced that gerrymandering is at the root of many–if not most–of America’s electoral dysfunctions. As a result of that conviction, and my general nerdiness, I have often consulted the Princeton Electoral Innovation Lab and especially its gerrymandering project, run by Sam Wang, a professor of neuroscience at Princeton.

Wang recently authored a very interesting analysis of the likely results of a win for the “independent state legislature” theory, a theory being advanced by Republicans in the upcoming Supreme Court case of Moore v. Harper. 

The GOP argument–dismissed by most legal observers as essentially wack-a-doodle–would re-interpret and greatly expand the effect of constitutional language granting state legislatures authority over elections.That language has always been understood to mean that the legislature passes state election laws, but that, just as with other laws, whatever they pass has to be consistent with their own state constitutions–meaning that those laws can be overturned by a court or vetoed by a governor. Proponents of the Independent State Legislature theory argue that the language  gives absolute authority to state legislatures, and that whatever they pass cannot be overturned by courts or vetoed by Governors.

Given the ideological makeup and ethical deficiencies of our rogue Supreme Court, its acceptance of the case has produced significant angst in the political and legal communities.

Endorsement of the theory would strike a devastating blow against the checks and balances that constrain governmental shenanigans.  Winning the freedom to evade democratic rules–freedom to rig elections– may make the Republicans who are arguing for the theory happy, but Wang shows that if the Court accepts it, it will actually end up benefitting Democrats.

His explanation–accompanied by graphs you should really click through to see, is as follows:

But if the Republicans win in the U.S. Supreme Court, the result on a national scale would almost certainly benefit Democrats. Why? Because outside North Carolina, only swing states and blue states have curbed partisan gerrymandering. In Pennsylvania, New York, Connecticut, Minnesota, New Hampshire, Wisconsin and Virginia, this was done through the intervention of governors or voting-rights-minded state courts; in Arizona, California, Michigan and Colorado, citizen initiatives gave redistricting authority to independent commissions.

One way to see the Democrats’ likely advantage: In the 2020 presidential election, the 12 states where districts were drawn by courts or independent commissions gave 184 electoral votes to Joe Biden and only 15 electoral votes (those from North Carolina) to Donald Trump.

A win for Moore would potentially unleash all those states to redistrict at will. In contrast, in 19 states where Republicans already have legislative control of redistricting, many partisan gains are maxed out, and nothing would change.

Wang’s laboratory analyzed the effects of the Court’s acceptance of arguments being made on behalf of the theory, examining partisan possibilities in each state, and concluded that  “election maps completely controlled by state legislatures would change the overall balance of congressional seats in Democrats’ favor.”

Wang explains that there are two possible analytical paths to a Court endorsement of the Independent state legislature theory.  If they chose the first, it would liberate several Democratic states to gerrymander by removing state court authority. (He points out that just this year, New York courts struck down that state’s pro-Democratic gerrymander.)

Democrats would also gain power if independent citizen commissions were struck down. In 2010, citizens gave an independent commission power over congressional redistricting in deep-blue California, with the support of then-Gov. Arnold Schwarzenegger, a Republican. Since then, Michigan and Colorado, two states now controlled by Democrats, have also formed independent commissions. Striking down these three commissions would give Democrats the ability to draw themselves up to a dozen additional seats.

Both liberal and conservative legal scholars have overwhelmingly argued against the independent state legislature doctrine. As Wang notes, proponents of this very novel theory are “hoping to find a receptive audience in a reactionary and increasingly activist Supreme Court.”

He also observes that–should the Court hand down a decision repudiating the theory–Republicans should consider themselves lucky.

The last time I argued that the GOP should be careful what they wished for, I was predicting  a huge anti-GOP backlash to the over-ruling of Roe v. Wade. The data emerging from the midterm elections–where the anticipated “Red wave” was held to a trickle– confirmed the potency of that response.

I am not rooting for the Court to adopt a ridiculous mis-reading of a Constitutional provision. Such a result would be enormously dangerous; it would dramatically erode American democracy. Gerrymandering doesn’t suddenly become less anti-democratic when it’s being done by my preferred team.

But the result Wang predicts would serve the Rightwing a-holes right…

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A Bit Far Out…But…

Anyone who follows politics in today’s U.S. of A. is aware that gerrymandering is at the root of much of what ails us. There’s a reason Democrats have a chance to retain Senate control in the upcoming midterms: Senate races cannot be gerrymandered. (Okay, the fact that several GOP candidates are wacko has helped.) If voting majorities decided the composition of the House of Representatives, Democrats would easily hold that chamber–but political scientists tell us that barely a handful of House districts are currently competitive. They’ve been gerrymandered by both parties, but mostly by the GOP.

I’ve written (a lot) about the issues raised by gerrymandering, and I won’t repeat the litany here (although I encourage you to read my academic paper analyzing those issues–and weep…).

Thus far, our highly politicized U.S. Supreme Court has declined to get involved, piously declaring gerrymandering to be “a political question.” So a recent ruling by the North Carolina Supreme Court wasn’t just a breath of fresh air–it was a light at the end of a dark tunnel. (Okay, I’ll quit the hokey metaphors, but I really, really loved this court’s conclusion!) Here’s the lede:

In a remarkable decision, the North Carolina Supreme Court ruled on Friday that because the state legislature was unconstitutionally gerrymandered, Republican lawmakers may have lacked the power to approve amendments to the state constitution and put them before voters.

The decision, which the court’s 4-3 Democratic majority issued along party lines, stopped short of granting the plaintiffs’ requests to strike down two amendments passed by Republicans in 2018—one to require photo voter ID and another to cap any state income tax at 7%. The justices instead returned the case to the trial court for further findings, though its framing of the dispute indicates that there’s a strong likelihood the state courts will ultimately invalidate the amendments.

The court’s conclusion was buttressed by the fact that a large number of the state’s legislative districts had been struck down in 2017; the federal courts found they had been racially drawn to discriminate against Black voters.

However, Republicans who had been elected under the unconstitutional maps used their supermajorities to place their amendments on the ballot the following year, when they were ultimately approved by voters.

The heart of the argument was the legitimacy of actions taken by illegitimate lawmakers:

The plaintiffs, who are backed by the NAACP, made the unusual—but not unprecedented—argument that the GOP’s widespread illegal gerrymandering rendered the legislature a “usurper” that legally lacked the power to amend North Carolina’s foundational governing document because it had “lost its claim to popular sovereignty.” A lower court agreed in 2019 by striking down the two amendments, but a 2-1 Republican majority on the state Court of Appeals reversed that ruling along party lines in 2020, leading the plaintiffs to appeal to the state Supreme Court.

The decision sending the case back to the trial court instructed that court to consider three questions: whether the amendments that were subject to the protest  would “immunize legislators … from democratic accountability,” whether they would “further the exclusion of a particular class of voters from the democratic process,” or whether those amendments were  intended to discriminate against the same type of voters who had been discriminated against by the illegal gerrymandering. If the trial court found the answer to any one of these three questions be “yes,” s/he would be “require[d]” to strike down the amendments.

I was particularly struck by the first question, addressing “democratic accountability.” 

In Indiana, it is a given that our statehouse is occupied by lawmakers lacking that “democratic accountability.” A number of academic studies have ranked the state among the five most gerrymandered in the country. It’s been a long time since I studied Indiana’s Constitution, but I do recall that Part Two, Section 1 declares that  “All elections shall be free and equal.” I also remember the (very strained) decision in Bush v. Gore to the effect that voting must pass an “equal protection” standard.

How equal are the votes of gerrymandered Hoosiers? How “democratically accountable” are the lawmakers who hold their positions thanks to the very denial of that equal protection?

In gerrymandered Indiana, we have plenty of evidence that rural ballots count more than urban ones. The citizens who reside in “blue” cities have less voice in state government than the citizens who live in the “red” exurbs and rural precincts of the state. How is this situation “free and equal”?

Calling on the Hoosier state’s creative lawyers…

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Getting Out The Vote

Several years ago,  my husband and I took a week-long cruise on a small boat that accommodated only eleven passengers. One of those eleven, as it happened, was a retired professor of public administration from Australia, and we had several fascinating exchanges about policy differences between our two countries.

One of those differences involved elections.

In Australia, the law requires  that every citizen vote. I initially recoiled at that suggestion; surely, people too disinterested to go to the polls  unless required to do so would cast uninformed ballots…but the more I thought about  it, the more Australia’s system appealed to me.

Many democratic countries evidently require people to vote, and fine those who don’t.  (Actually, as I understand it, what is mandatory is appearance at the polls. In many systems, there is apparently something akin to a “none of the above” option that will fulfill the legal obligation.)

Requiring citizens to vote would help ensure that election results mirror the preferences of the entire population, not just those sufficiently motivated to express those preferences at the polls. At least some percentage of the currently disengaged would take more interest in government and politics–knowing that they would have to cast a ballot, at least some Americans might make an effort to know something about the people on that ballot and (gasp!) even the system within which they aspire to operate.

Arguably, universal turnout would require candidates to craft more inclusive messages, since targeting an ideological sliver would no longer be the path to victory. (Targeting one’s base is one reason for our currently polarized politics.) Candidates and parties would also save a lot of money and effort currently spent on get out the vote efforts.

So what are the cons, the arguments against mandatory voting?

Requiring people to vote would assure the participation of low-interest, arguably uninformed people, “alphabet voters” who would simply check a box in order to avoid a fine. (You can lead a voter to the polls, but you can’t force him to think.) Even a token fine would fall most heavily on the poor and disadvantaged–the very people who have difficulty getting to the polls in our current system.

At least one scholar has suggested that–rather than making voting mandatory (which America will do when pigs fly)–we should work to make elections more competitive, because turnout increases when voters have meaningful choices. Gerrymandering currently makes that solution untenable.

Gerrymandering is also a huge disincentive to voting; when you are convinced your vote won’t count, you are understandably less likely to make the effort. And because Republicans have been far more successful in gerrymandering (not that Democrats don’t try–they just aren’t nearly as good at it), the people who are least likely to vote are the people most likely to vote Democratic.

A recent study of turnout should be filed under “read it and weep.”

A new study from BYU and the University of Virginia analyzed 400 million voter records from elections in 2014 and 2016 and found that minority citizens, young people, and those who support the Democratic Party are much less likely to vote than whites, older citizens, and Republican Party supporters. Moreover, those in the former groups were also more likely to live in areas where their neighbors are less likely to vote.

“We’re finding that the circumstances of other citizens who live around you plays an important role in voter turnout,” said Dr. Michael Barber, BYU professor of political science and co-author of the study. “Much of the country is segregated—especially by race and partisanship. Minorities are more likely to live around other minorities who are also less likely to vote. The same is true of voters of both parties. These patterns can create a situation that results in persistent patterns of lower turnout in certain communities for a variety of reasons.”

The study found that, in 2016, White citizens voted at a rate of between 9 and 15 percentage points higher than Black citizens, Asian citizens, and Hispanic citizens. In 2014, the gaps were even higher, with Whites voting at a rate 9 to 18 percentage points higher than minority groups. There were similar gaps in political party turnout, with Republicans  more likely to vote than Democrats.

Unsurprising but depressing, the data also confirmed that the voting rate of citizens 60 years old or older was roughly 40 percentage points higher than that of citizens 30 years old or younger.

If those demographic gaps in turnout narrowed–or, with mandatory voting, disappeared– a significant number of districts that have been gerrymandered by partisans would no longer be safe–after all, the people drawing district lines must depend upon previous turnout data. They have no way of knowing the political preferences of the people who didn’t bother to vote.

Increased turnout could save American democracy.

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A Concise Diagnosis

In an aside in a recent column about the January 6th hearings, Jennifer Rubin really summed up the current crisis (or more accurately, crises) in American governance.

Trump utterly failed the country; his successor is stymied by a radicalized opposition determined to see him fail. The Senate is gridlocked by a minority party wielding the filibuster to, among other things, preserve voter suppression and subversion laws. The Supreme Court has been overtaken by rank, radical partisans whose decisions cannot be defended on the merits and whose public utterances and tone lack any semblance of “judicial temperament.” We seem stuck because structural advantages for the minority (the Senate, the electoral college, the right-wing Supreme Court) make real reform impossible.

Rubin’s main thrust was the meaning of the very real heroism displayed by poll workers Ruby Freeman and Shaye Moss. (The column was written before the even more impressive bravery displayed by Cassidy Hutchinson this week.)

Unlike a number of the witnesses called by the committee, these two women–mother and daughter–weren’t high-ranking members of the administration or Department of Justice, people who might lose a current job but would have little trouble finding new ones. Freeman and Share are ordinary citizens who were doing some of the low-paid jobs essential to the operation of democratic elections. Rubin is certainly correct in lauding the courage they displayed both in doing those jobs accurately and in testifying; her point was that they served the country just as surely as our military does, and that we need civilians “like Ruby Freeman and Shaye Moss in public life if we are to muddle through a dangerous and disturbing period in our history.”

I don’t disagree, but I remain fixated on the quoted paragraph, because it succinctly sums up the challenges we currently face–and their magnitude.

I’ve written several times about the filibuster, and how its current use differs substantially from its historic one. The wrongheaded protection of what the filibuster has become allows a minority of lawmakers– who have been elected by a minority of voters– to veto the demonstrable will of the great majority of American citizens.

I need not reiterate the evidence showing how drastically the current Supreme Court has deviated from what was thought to be settled jurisprudence. To use a term beloved by a former vice-presidential candidate, the Court’s majority has “gone rogue.” To the extent that Americans were relying on the judiciary to protect fundamental rights, the Court’s current majority has signaled repeatedly that such reliance is misplaced–at least, so long as that majority fancies itself a religious tribunal rather than a court of law  bound by precedent and serving a theologically and ideologically diverse population.

In the final sentence of that quoted paragraph, Rubin alludes to what has become my most pressing–and depressing– concern: the obsolescence of much of America’s electoral and governing systems.

I doubt we can ever do anything about the fact that electing two senators from every state, irrespective of massive disproportions in population, means that very soon 70% of the Senate will represent 30% of the population. So long as our rogue court continues to protect partisan gerrymandering, lawmakers in both houses will continue to be answerable primarily–indeed, overwhelmingly– to rural Americans. The difficulty of amending the Constitution means we are probably saddled with the Electoral College for the foreseeable future–I don’t hold out much hope that the National Popular Vote Compact will be ratified by states having the necessary 270 electoral votes. (I would love to be wrong!)

The only remedy I can see would be a massive turnout in November repudiating the GOP –turnout large enough to allow Democrats  to get rid of the filibuster and pass a number of remedial measures–most importantly, the voting rights act. That law  would–among other salutary consequences– outlaw gerrymandering. Congress could also add Justices to the Court, diluting the power of the Court’s radical theocrats.

Are the Democrats perfect? Certainly not. But they’e a thousand times saner than the cult that is today’s GOP. If that cult loses badly enough, it will either be reformed from within, by genuine conservatives like Adam Kitzinger and Liz Cheney, or go the way of the Whigs.

Either way, We the People could then go back to arguing over our policy differences, rather than the survival of the republic.

In a very real way, Rubin was right: America’s future depends on ordinary citizens–those who do their jobs, and especially those who cast their votes to rescue the Constitution and Bill of Rights from the autocrats and theocrats. I’m clinging by my fingernails to the hope that there are enough of those citizens…

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