How Gerrymandering Kills Political Debate & Disregards Your Vote

 

 

 

Gerrymandering: One Person, One Vote?

 

The name of the game in partisan redistricting is vote dilution. In a two-party race, a candidate needs only fifty per cent plus one to win. Every extra vote cast for that candidate is a wasted vote, as is every vote for the loser. You can’t literally prevent your opponents from voting. So wasting as many of the other party’s votes as possible is the next best thing. 

– Louis Menand

 

(Capital-Star Editorial Cartoon by John Cole)

 

What’s Gerrymandering?

 

Gerrymandering Explained

The practice has been a thorn in the side of democracy for centuries, and with the new round of redistricting it’s a bigger threat than ever.

LAST UPDATED: August 12, 2021; PUBLISHED: August 10, 2021

https://www.brennancenter.org/our-work/research-reports/gerrymandering-explained

[Excerpt:]

After the Census Bureau releases detailed popu­la­tion and demo­graphic data from the 2020 census on August 12, states and local govern­ments begin the once-a-decade process of draw­ing new voting district bound­ar­ies known as redis­trict­ing.

And gerry­man­der­ing — when those bound­ar­ies are drawn with the inten­tion of influ­en­cing who gets elec­ted — is bound to follow.

The current redis­trict­ing cycle will be the first since the Supreme Court’s 2019 ruling that gerry­man­der­ing for party advant­age cannot be chal­lenged in federal court, which has set the stage for perhaps the most omin­ous round of map draw­ing in the coun­try’s history.

Here are six things to know about partisan gerry­man­der­ing and how it impacts our demo­cracy.

After the Census Bureau releases detailed popu­la­tion and demo­graphic data from the 2020 census on August 12, states and local govern­ments begin the once-a-decade process of draw­ing new voting district bound­ar­ies known as redis­trict­ing. And gerry­man­der­ing — when those bound­ar­ies are drawn with the inten­tion of influ­en­cing who gets elec­ted — is bound to follow.

The current redis­trict­ing cycle will be the first since the Supreme Court’s 2019 ruling that gerry­man­der­ing for party advant­age cannot be chal­lenged in federal court, which has set the stage for perhaps the most omin­ous round of map draw­ing in the coun­try’s history.

Read this article to learn “six things to know about partisan gerry­man­der­ing and how it impacts our demo­cracy”.

Drawing Lines

Our undemocratic democracy

By Louis Menand

August 15, 2022

https://www.newyorker.com/magazine/2022/08/22/american-democracy-was-never-designed-to-be-democratic-eric-holder-our-unfinished-march-nick-seabrook-one-person-one-vote-jacob-grumbach-laboratories-against-democracy

[Excerpt:]

The name of the game in partisan redistricting is vote dilution. In a two-party race, a candidate needs only fifty per cent plus one to win. Every extra vote cast for that candidate is a wasted vote, as is every vote for the loser. You can’t literally prevent your opponents from voting. Even the current Supreme Court, which has hardly been a champion of voting rights since John Roberts became Chief Justice, would put a stop to that. So wasting as many of the other party’s votes as possible is the next best thing. And, in most states, it’s perfectly legal. The terms of art are “cracking” and “packing.”

[Boldface added]

You crack a district when you break up a solid voting bloc for one party and distribute those voters across several adjacent districts, where they are likely to be in the minority. Once it’s cracked, the formerly solid district becomes competitive. This is sometimes called “dispersal gerrymandering.”

When you pack, on the other hand, you put as many voters of the other party as possible into the same district. This arrangement means that their candidate will usually get a seat, but it weakens that party’s power in other districts. From a civil-rights point of view, districts in which members of minority groups are in the majority might seem like a good thing, but Republicans tend to favor majority-minority districts because they reduce the chances that Democratic candidates will win elsewhere in a state.

Partisan redistricting is why Republicans won five of Wisconsin’s eight congressional seats in 2020 even though Biden took the state. Biden carried the Fourth Congressional District, which includes Milwaukee, by fifty-four percentage points. Was that district packed? Not necessarily. The tendency of Democrats to concentrate in densely populated urban areas naturally tends to dilute their votes statewide. But partisan redistricting helps explain why Republicans won sixty-one of ninety-nine seats in Wisconsin’s State Assembly and ten of the sixteen contested seats in the State Senate. Wisconsin is justifiably considered a major success story by Republican redistricting strategists. 

How Redistricting Affects The Battle For State Legislatures

https://fivethirtyeight.com/features/how-redistricting-affects-the-battle-for-state-legislatures/

[Excerpt:]

The U.S. House of Representatives isn’t the only chamber whose district lines are being redrawn to reflect the 2020 census. State-legislative chambers are being redistricted too — and as we’ve written in the past, state legislatures are often where the laws that have the biggest impact on people’s daily lives are passed. In the last year, state legislatures have passed numerous new election laws, abortion restrictions, anti-transgender laws and more.

The book isn’t closed on legislative redistricting quite yet — seven states still don’t have new maps — but one trend is already clear: Just as congressional redistricting is producing fewer swing districts, very few state-legislative chambers will be competitive this decade

Of course, we wouldn’t expect solidly Republican or solidly Democratic states to have competitive legislatures no matter how their maps are drawn, so we’ll only be focusing on battleground states in this article. But according to our analysis of state-legislative redistricting (using the same tools we use to analyze congressional redistricting on our redistricting tracker), as well as conversations with experts in state-legislative elections, the legislatures in even many battleground states have been drawn to give one party a clear advantage.

That is not a new development, but we also found that redistricting changed the electoral calculus in several battleground states: Some legislative chambers got more competitive, while other previously contested chambers got sewn up for one party. So join us for an all-expenses-paid tour through all the state capitols you might (rightly or wrongly) expect to be up for grabs this decade.

 

The State of Play Today

 

“Redistricting redux: North Carolina lawmakers to draw again new maps for Congress and themselves”

AP:

With a new state budget completed, North Carolina legislators now turn their attention yet again to mapping the state’s congressional and General Assembly districts.

The House and Senate redistricting committees scheduled hearings this week — the last one happened Wednesday in Raleigh — to receive public comment about the process of drawing district boundaries that would be used in the 2024 elections and for the remainder of the decade.

Redistricting in North Carolina seems to be endless. Since 2011, six different versions of maps for the state’s congressional delegation, the state House and state Senate have been enacted by courts or lawmakers, although not all were used in elections….

 

Wisconsin GOP lawmakers move to oust top election official, newly elected Supreme Court justice

Experts call Wisconsin one of the most gerrymandered states in the country. Now Republican lawmakers want to lock in their redistricting map and impeach newly elected liberal state Supreme Court justice Janet Protasiewicz before she issues her first ruling.

Here & Now‘s Scott Tong talks with author and journalist Ari Berman. Berman has been covering election law, redistricting and voting rights for years. He is the author of the book “Give Us the Ballot: The Modern Struggle for Voting Rights in America” and a national voting rights correspondent for Mother Jones.

This article was originally published on WBUR.org.

 

“Moore and Partisan Gerrymandering”

Manoj Mate has posted this draft on SSRN. Here is the abstract:

This article examines the impact of the Supreme Court’s recent decision in Moore v. Harper on state partisan gerrymandering. Moore rejected the independent state legislature theory in affirming that state courts could review state regulations of federal elections. However, Moore also articulated a vague standard under which federal courts could review state court decisions to ensure they do not “transgress the ordinary bounds of judicial review” by assuming powers vested in state legislatures under the federal Elections Clause.

I analyze Moore’s impact on the substantive dimension of state court review in conjunction with the procedural dimension of state partisan gerrymandering disputes, by focusing on a problem that Moore does not squarely address—evasion of anti-partisan gerrymandering processes and norms by legislatures, redistricting commissions and other political actors. I argue that Rucho and Moore entrench a model of federalism that contributes to representation diminution by allowing federal courts to undermine state court checks on state partisan gerrymanders, while at the same time failing to address the problem of evasion of norms prohibiting partisan gerrymandering. As this article illustrates, political actors have defied and evaded state constitutional and statutory provisions in surprising and concerning ways. State legislatures and redistricting commissions have evaded constitutional provisions governing partisan gerrymandering norms and redistricting processes, and also defied and resisted court decisions ordering the adoption of remedial maps in their push to implement partisan gerrymanders.

This article begins by situating Moore within theories of federalism, democracy, and election law, highlighting how Moore could weaken state courts’ role in policing partisan gerrymandering, while not addressing the problem of evasion of politically entrenched norms against partisan gerrymandering . It then provides a descriptive account of state partisan gerrymandering regimes, by analyzing variation in the pathways through which states have entrenched norms against partisan gerrymandering, and variation in evasion strategies employed by political actors. It then assesses Moore’s implications for state constitutionalism by examining its potential impact on state court interpretation and state electoral governance, state court responses to evasion dynamics, and how patterns of evasion highlight key weaknesses in the institutional design of state redistricting reforms, and weaknesses in judicial remedies. The article concludes by considering broader implications for federalism, democracy, and the role of courts.

 

Utah Supreme Court to Hear Partisan Gerrymandering Argument Today

NYT:

On Tuesday, the Utah Supreme Court will consider whether to wade into the increasingly pitched nationwide battle over partisan gerrymanders. The justices will decide whether the state’s courts can hear a lawsuit challenging the House map, or whether partisan maps are a political issue beyond their jurisdiction.

The U.S. Supreme Court considered the same question in 2019 and decided that the maps were beyond its purview. But voting rights advocates say Utah’s Constitution offers a stronger case than the federal one for reining in political maps.

“There’s a very clear provision in the State Constitution that says all power is inherent in the people, and that they have the right to alter and reform their government,” said Mark Gaber, a lawyer with the Campaign Legal Center, a Washington-based advocacy group representing the plaintiffs.

He said other relevant provisions in the State Constitution, but absent from the federal Constitution, include guarantees of free elections and the right to vote.

 

“How to Police Gerrymanders? Some Judges Say the Courts Can’t.”

The NYT “teaches the controversy” about policing partisan gerrymandering. 

I have to say, I agree with some of the line-drawing concerns when it comes to deciding how much is too much.  Which is why I’ve argued for a while that that’s the wrong question.

Voters rebuffed the most aggressive efforts to weaken democracy in the midterms. But battles over election districts and ballot restrictions that could prove crucial in 2024 have already resumed.

 

Mapmaker, Mapmaker, Make Me a Map

https://www.thisamericanlife.org/

November 5, 2022

In 2015, voters in Ohio approved a Republican constitutional amendment to end gerrymandering in the state—one of the first of its kind. And then Ohio Republicans drew electoral maps that violated their own constitutional amendment, and those are the ones they’re using in this year’s elections.

 View episode details

 

‘The Run-Up’: What 12 Years of Gerrymandering Has Done to Wisconsin

The Daily

Oct. 20, 2022

How a 12-year project to lock in political power in Wisconsin could culminate in this year’s midterms – and provide a glimpse into where the rest of the country is headed.

“The Run-Up” is a new politics podcast from The New York Times. Leading up to the 2022 midterms, we’ll be sharing the latest episode here every Saturday. If you want to hear episodes when they first drop on Thursdays, you can search for “The Run-Up” wherever you get your podcasts. Visit nytimes.com/therunup for more.

 

Anti-Gerrymandering Reforms Had Mixed Results

Redistricting reforms creating independent redistricting commissions resulted in fairer maps, while less robust reforms struggled.

 

A Crisis is Coming: The Twin Threats to American Democracy

David Leonhardt is a senior writer at The Times who won the Pulitzer Prize for his coverage of the Great Recession.

[Examining factors, including gerrymandering, that create public policies not reflective of the views of a majority of Americans].

 

Arizona Dems allege illegal gerrymandering in redrawing of legislative maps

https://www.knau.org/knau-and-arizona-news/2022-04-11/arizona-dems-allege-illegal-gerrymandering-in-redrawing-of-legislative-maps

 

Florida Supreme Court locks in DeSantis-backed redistricting map

Groups that challenged the map sharply criticized the ruling and said they will not drop their underlying lawsuit.

Here’s how redistricting changed Georgia’s 2022 maps for the House, state Senate, and U.S. House

The new maps were signed into law on December 31 and are effective for this year’s upcoming election. However, five lawsuits have been filed by various civil liberties and voting rights advocacy groups, arguing that the maps were drawn unfairly.

Georgia’s jam-packed redistricting session is over, but the fight over the new maps is just getting started. Governor Brian Kemp signed the three new legislative maps into law on December 31st, triggering several lawsuits that argue the new districts discriminate against minority voters. Here’s a round-up of the new maps, the lawsuits challenging them, and what it all means for the looming 2022 midterms.

https://www.atlantamagazine.com/news-culture-articles/heres-how-redistricting-changed-georgias-2022-maps-for-the-house-state-senate-and-u-s-house/

Analysis: Gerrymandering has left Texas voters with few options

Texans who don’t vote in primaries and primary runoffs are missing a chance to choose who goes to Congress and the Texas Legislature. Thanks to the political maps drawn by lawmakers last year, only a handful of those contests will be competitive in November.

https://www.texastribune.org/2022/04/20/texas-redistricting-elections/

Prison Gerrymandering: Who counts in Pennsylvania? That…

BY CAPITAL-STAR GUEST CONTRIBUTOR

January 17, 2022

 

Maps show how gerrymandering benefitted Michigan Republicans

https://www.bridgemi.com/michigan-government/maps-show-how-gerrymandering-benefitted-michigan-republicans

Ohio Supreme Court scraps 2nd GOP-drawn congressional map

The Ohio Supreme Court has rejected a second Republican-drawn map of U.S. House districts as gerrymandered.

 

Moore v. Harper, Explained

The debunked “independent state legislature theory” is on the Supreme Court’s docket, with potentially disastrous consequences.

PUBLISHED: August 4, 2022

https://www.brennancenter.org/our-work/research-reports/moore-v-harper-explained

[Excerpt:]

In Moore v. Harper, the Supreme Court will decide whether the North Caro­lina Supreme Court has the power to strike down the legis­lature’s illeg­ally gerry­mandered congres­sional map for viol­at­ing the North Caro­lina Consti­tu­tion. The legis­lat­ors have argued that a debunked inter­pret­a­tion of the U.S. Consti­tu­tion — known as the “inde­pend­ent state legis­lature theory” — renders the state courts and state consti­tu­tion power­less in matters relat­ing to federal elec­tions.

 

More on Moore v. Harper:

Do state legislatures alone have the power to set election rules even if those laws violate state constitutions? 

or

What is the “independent state legislature doctrine” and how does it skew our electoral system? 

Letters from an American, heathercoxrichardson@substack.com

September 8, 2022

Also in the news today is Moore v. Harper, a North Carolina case about whether state legislatures alone have the power to set election rules even if those laws violate state constitutions. The case is currently before the Supreme Court, and friend of the court briefs are flowing in to make arguments either for Timothy Moore, speaker of the North Carolina House of Representatives, and the rest of the petitioners, or for defendant Rebecca Harper, a North Carolina voter, and the rest of the respondents.

The case comes from North Carolina, where the state supreme court rejected a dramatically partisan gerrymander by the Republican state legislature. Republicans say that the state court cannot stop the legislature’s carving up of the state because of the “independent state legislature doctrine.”

This is a new idea that caught on in 2015, when Republicans wanted to get rid of an independent redistricting commission in Arizona. It is based on the clause in the U.S. Constitution providing that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”

Until now, states have interpreted “legislatures” to mean the state’s general lawmaking processes, which include shared power and checks and balances among the three branches of state government. Now a radical minority insists that a legislature is a legislature alone, unchecked by state courts or state constitutions that prohibit gerrymandering.

Why now?

Read More

Democrats are actually far more popular than Republicans in most states, and they win elections that are statewide, like those for the U.S. Senate, governor, or U.S. president. But state legislatures control the way state districts are carved up, and after 2010, when Republicans made a concerted effort to take over state houses through a plan called Operation REDMAP, they gerrymandered the states they control to the point that Democratic voters cannot win the number of seats their votes reflect.

Biden narrowly won Georgia in 2020, for example, but a new districting map has given Republicans an advantage of at least 15 points for control of the state House of Representatives. Democrats will have to win the state by double digits in order to flip the House. That party power leads to extremist legislation, for once in power, legislators in safe seats can operate without fear of being voted out and can vote for measures that cater to their extremist base rather than to the wishes of the majority.

This partisan gerrymandering skews Congress as well. According to political scientist Jacob Grumbach of the University of Washington, North Carolina, for example, was actually a leader in expanding access to voting in the 1970s. But after Republicans captured the legislature in 2010, they changed election laws so dramatically that in 2018, Republicans won 49.3% of the vote and yet captured 77% (10 of 13) of the state’s seats in Congress.

Grumbach identifies 2010 as a crucial shift for democracy in a number of states. “It’s all about [Republican] control,” he says. “When the [Republican Party] wins your state, it will reduce democracy.” The changes don’t reflect major changes in the states themselves; rather, both the big money interests of the Republican Party and the electoral base, which is motivated by white identity politics, want to keep voting limited.

Those advancing the independent state legislature theory want to be able to gerrymander their states, but they also point to another clause of the Constitution. It says: “Each State shall appoint, in such Manner as the Legis­lature thereof may direct, a Number of Elect­ors.” They advance the idea that the legislature can choose the state’s presidential electors regardless of which candidate the majority of the state’s voters choose.

This doctrine is, of course, what Trump and his allies pushed for to keep him in power in 2020: Republican state legislatures throwing out the will of the people and sending electors for Trump to Congress rather than the Biden electors the majority voted for.

Not surprisingly, those writing friend of the court briefs defending the independent state legislature doctrine are a who’s who of those who backed Trump’s effort to convince state officials to write slates of electors for Trump rather than Biden. They include America First Legal Foundation, which Democracy Docket identifies as connected to Trump advisor Stephen Miller and Trump’s chief of staff Mark Meadows; America’s Future (Trump’s national security advisor Michael Flynn); Claremont Institute’s Center for Constitutional Jurisprudence (John Eastman, author of the Eastman memo for overturning the 2020 election); Honest Elections Project (Leonard Leo); Public Interest Legal Foundation (Eastman and Trump lawyer Cleta Mitchell), Restoring Integrity and Trust in Elections (Trump’s attorney general Bill Barr), and so on.

In contrast, a conference consisting of the Supreme Court chief justices or chief judges of the courts of last resort of all 50 states, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, and the Virgin Islands, urged the Supreme Court not to decide that the state legislatures could operate without any oversight. Relying on the long history of state court review of the legislatures’ decisions, including those over elections, it concluded that state courts had a traditional role to play in reviewing election laws under state constitutions.

Revered conservative judge J. Michael Luttig has been trying for months to sound the alarm that the independent state legislature doctrine is a blueprint for Republicans to steal the 2024 election. In April, before the court agreed to take on the Moore v. Harper case, he wrote: “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine…and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”

And yet in March, when the Supreme Court let the North Carolina Supreme Court’s decision against the radical map stay in place for 2022, justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh indicated they are open to the idea that state courts have no role in overseeing the rules for federal elections.

In the one term Trump’s three justices have been on the court, they have decimated the legal landscape under which we have lived for generations, slashing power from the federal government, where Congress represents the majority, and returning it to states, where a Republican minority can impose its will. Thanks to the skewing of our electoral system, those states are now trying to take control of our federal government permanently.

Notes:

https://www.vox.com/2021/4/2/22360341/obamacare-lawsuit-supreme-court-little-sisters-kelley-becerra-reed-oconnor-nondelegation

https://www.courthousenews.com/wp-content/uploads/2022/09/braidwood-becerra-ruling-usdc-texas.pdf

https://www.vox.com/policy-and-politics/2022/9/7/23341076/obamacare-reed-oconnor-prep-supreme-court-braidwood-becerra-affordable-care-act

https://www.nytimes.com/2018/12/24/us/politics/texas-judge-obamacare.html

https://fivethirtyeight.com/features/how-redistricting-affects-the-battle-for-state-legislatures/

https://www.nytimes.com/2022/09/07/opinion/democracy-states-america.html

 

How to Say Goodbye to Gerrymandering

 

“Republicans and the Purple Crayon: How to Fix Partisan Gerrymandering in Wisconsin and Elsewhere”

Tom Zoellner in the LA Review of Books.

 

SELF-DISTRICTING: The Ultimate Antidote to Gerrymandering

I have posted this new paper on SSRN. Here’s the abstract:

It is possible to end gerrymandering by removing the power to draw district lines from government officials and giving this power to the voters themselves. In a self-districting system, as described herein, each voter chooses which constituency the voter wants to join for purposes of legislative representation. These constituencies can be geographically based as in traditional districting systems, but they also can be based on other attributes—whatever associational communities the voters themselves wish to form. If enough voters join a constituency to form more than one district based on the constitutional principle of equally populated districts, then this constituency can be subdivided into districts based on strict computer-implemented geographical criteria without any possibility for gerrymandering. This self-districting system not only complies with the U.S. Constitution; it is also consistent with the Act of Congress that requires single-member districts. Thus, there is no federal law obstacle to prevent states from adopting a self-districting system for both their congressional delegation and their own legislative chambers. In fact, self-districting is a way to avoid the problem of minority vote dilution, a task likely to become more difficulty given anticipated changes in the U.S. Supreme Court’s jurisprudence on the topic. Because of the increasingly pernicious nature of gerrymandered districts, which cause voters—and most especially minority voters—serious representational harms, the alternative of self-districting, where voters are empowered to make these representational decisions for themselves, deserves serious consideration.

The paper is being published by the Kentucky Law Journal (an earlier draft was presented at its symposium). Comments are very much welcome as it undergoes the editing process.

Here’s what H.R. 1, the House-passed voting rights bill, would do

Analysis by 

June 2, 2021

ttps://www.washingtonpost.com/politics/2021/03/05/hr1-bill-what-is-it/

[Excerpt:]

Nonpartisan redistricting commissions:In an attempt to get rid of gerrymandering, the law would require each state to use independent commissions (not made up of lawmakers) to approve newly drawn congressional districts. The commissions would each include five Democrats, five Republicans and five independents, requiring bipartisan approval for districts to be allowed.

“Regardless of whether it’s a red state or a blue state, we are seeing significant manipulation in the legislative redrawing of districts,” said Tom Lopach, chief executive of the nonpartisan Voter Participation Center, which has advocated for the bill. “H.R. 1 presents an opportunity for everyone to get onboard with independent, unbiased and balanced redistricting that frankly is good government.”

It would also give the public a new level of scrutiny, and a chance to object to poorly drawn districts. The law would require a public comment period and give citizens a legal basis to challenge gerrymandering. (Currently, gerrymandering challenges have to be made on constitutional grounds, and if a law were passed, there would be a clearer argument to present in court against gerrymandered districts.)

 

Dig deeper?

One Person, One Vote: A Surprising History of Gerrymandering in America (Pantheon 2022) , Nick Seabrook

Laboratories Against Democracy (Princeton 2022), Jacob Grumbach

 

“A vote is like a rifle; its usefulness depends upon the character of the user.”

— Theodore Roosevelt