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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