Sunday, September 15, 2019

RECLAIMING AMERICA: OUTLAW GERRYMANDERING

RECLAIMING DEMOCRACY:  THE LONG WAY HOME.




OUTLAW GERRYMANDERING

The Age of Designer Districting

by Jack Random



      The principle of equivalent value in voting – one person, one vote – is absolutely fundamental to the concept of democracy.  That principle has been under constant assault on multiple fronts since the birth of our republic.  The Electoral College is an affront to the principle of equivalent value.  The disproportionate power of the senate is an affront to the principle of equivalent value.  But perhaps the greatest and most dangerous assault of all, given the capability of advanced technology, is the advent of designer districting – aka gerrymandering. 
Informed citizens are aware and outraged by the original constitutional provision of 3/5ths of a vote per slave assigned to slave holders.  That alone dismisses the presumption of constitutional originalists that the founders got it right.  Frankly, they got it wrong.  The more enlightened of our founders understood that their prescribed system of government was a work in progress.  Franklin, Jefferson, Monroe and Madison expected and advocated that future generations would continually modify their work and mold the system to form “a more perfect union.” 
In many ways we have upheld our responsibility to create a better and more democratic system through the means the founders provided:  constitutional amendment.  We have expanded the franchise to include women, individuals without property and racial minorities.  We have prohibited systematic denial of the right to vote on the basis of race and gender.  Until recently, we have empowered the Justice Department to protect citizens against state and local governments when they attempt to deny the right to vote – at least on the basis of race. [1]
Unfortunately, as the Supreme Court has too often reminded us, we have fallen short on numerous grounds, including gerrymandering.  A recent court decision – Rucho V. Common Cause 2019 – upheld gerrymandering as long as it is not based on race or sex.  The ruling essentially legalized partisan gerrymandering while paradoxically claiming to uphold the “one person, one vote” principle.  The Brett Kavanaugh era has begun. [2]
Justice Elena Kagan wrote a well reasoned dissent, stating that partisan gerrymanders “deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.  In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.” [3]
For the uninitiated, gerrymandering is a disgraceful bipartisan practice that goes back to 1812 when Massachusetts Governor Elbridge Gerry signed a bill approving the first congressional district designed to under-represent the opposition.  To some its strange shape appeared to resemble a salamander. 
The concept is simple.  If you have one district that gives your party a 65 to 35 percent advantage and two adjacent districts that give the opposition a narrow advantage, you combine them to produce two districts that give your party a comfortable advantage and one district that gives the opposition an overwhelming advantage.  The net result is a gain of one representative with the same number of voters.  If you really do an exceptional job you might be able to get all three seats with that 30% margin. 
In 1812 gerrymandering was an ingenious way to cheat the system but it was not entirely reliable.  Today we have computers and programmers that can design districts that reliably maximize the intended results. 
It was by this means that the Republicans established majority control of the House of Representatives while attracting fewer votes than their Democratic opposition in 2012 – the first election after the 2010 census.  The Grand Old Party maintained disproportionate control of the lower chamber until 2018.  In the 2012 election Democratic candidates received 1.4 million votes more that their Republican opponents but gained only eight seats in congress.  In 2018 Democrats attracted an 8.6% advantage representing 9.7 million votes over Republicans nationwide and gained 41 seats.  According to the Associated Press, gerrymandering cost the Democrats sixteen seats. [4]
To their credit Republicans recognized the importance of controlling state governments prior to the ten-year census and channeled large sums of money from the Koch brothers and other corporate entities into those races.  They subsequently controlled the apportionment process of redesigning congressional districts based on updated census data. 
The same reapportionment process that applies to the House of Representatives applies to state legislatures as well.  Thus, Republicans maintain disproportionate control of the process going into the next election.  Control of the state houses in the next election will determine the potential for gerrymandering over the next decade, as the next census will be conducted in 2020. 
All this is not to say that gerrymandering is strictly a Republican strategy.  In the 1970’s brothers Dan and Phil Burton of California revolutionized the devilish art of partisan redistricting in favor of Democrats.  It’s just that in recent years we have witnessed the phenomenon as predominantly Republican.  Distressed by changing demographics that favor Democrats, Republicans have sought any means to hold onto what they perceive as their fair share of power.  Consequently they have concentrated a great deal of energy and resources at the redistricting process.  In a sense, the Democrats were caught sleeping before the 2010 census.  The next one will be contested. 
The problem is that state legislatures directly or indirectly control who draws the map for congressional districts.  Because legislatures are partisan bodies, the majority party holds sway over what districts will be adopted. 
Clearly, if you believe in democracy and the fundamental principle of assigning equivalent value to every vote, this is not how it should be done.  It is certainly not what the Supreme Court intended in Baker V. Carr 1962, Wesberry V. Sanders 1964 and Reynolds V. Sims 1964.  In those decisions the court attempted to stop one injustice by requiring states to reapportion legislative districts.  Up to that time some districts were wildly imbalanced because they had not been updated since the 1900 census.  Unfortunately, while the updated districts reflected equal numbers, they did not produce the desired effect of equalizing representation. [5]
Prior to the “redistricting revolution” of the sixties the big cities and surrounding areas were vastly under-represented while the rural areas were significantly over-represented because the great migration to the cities had taken place.  Baker V. Carr changed everything and Gray V. Sanders 1963 went further by establishing the “one person, one vote” standard to statewide elections.  Courts have interpreted the “one person, one vote” standard as applying to congressional and state legislative districts as well.  That is, districts must be updated every ten years and must represent an equal number of people.  Because the court did not address the question of proportionate representation, it left the door open to the partisan manipulations that have become standard political practice today. 
There was hope that the current court would advance the cause of democracy by striking down purely partisan redistricting but that hope rested on the assumption that the court favored the principles of democracy.  The Roberts court has made it more than clear in a number of decisions – including the infamous Citizens United V. Federal Election Commission 2010 – that it does not believe in democracy.  Far from outlawing partisan gerrymandering, the court has given full license to further develop and practice the devious art. 
So what can be done if the courts will do nothing? 
The battle must be fought at the state level and in the halls of congress.  Four states – Arizona, California, Colorado and Michigan – have created independent commissions assigned to reapportionment.  Their efforts should be applauded for in each case they have sacrificed power in favor of fairness.  Other states should follow their example. 
But the problem cannot and should not be left in the hands of the states.  The next congress must go about the business of establishing new law based on the principle of equivalent value:  one person, one vote and every vote of equal value. 
The same computers that have developed extreme designer districting can create districts of equivalent value.  The process must be secured and zealously protected for there will always be individuals and organizations dedicated to manipulating the vote to their advantage. 
I suggest an independent election board in every state empowered and funded by the federal government.  Its sole responsibility would be to create fair districts according to the principle of equivalent value: one person, one vote and every vote of equal value.  The reapportionment process should be monitored for any irregularities and stiff fines and penalties should be imposed for violations of the equivalent value standard.  Criminal penalties should be applied to deliberate attempts at sabotage. 
In short, the House of Representatives should reflect in rough proportion the population as a whole.  To accomplish that goal – a more perfect democracy – gerrymandering must be abolished once and for all. 

Jazz.

1. "Shelby County v. Holder." Oyez, www.oyez.org/cases/2012/12-96. Accessed 12 Sep. 2019.

2.  The elevation of Brett Kavanaugh to the Supreme Court in October 2018 tipped the balance of power distinctly to the right. 

3. “The Supreme Court just said federal courts can’t stop partisan gerrymandering.”  By Andrew Prokop.  Vox June 27, 2019. 

4. “AP: GOP won more seats in 2018 than suggested by vote share.”  By David A. Lieb.  Associated Press, March 21, 1019. 

5. “Re-mapping American Politics: The Redistricting Revolution Fifty Years Later.”  By David Stebenne.  Origins: Current Events in Historical Perspective.  Volume 5, Issue 5, February 2012. 

Jack Random is a retired public schools educator.  A novelist and political commentator, his works include Wasichu: The Killing Spirit, Number Nine, Pawns to Players: The Chess Series and the Jazzman Chronicles. 


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