Friday, September 29, 2017

Gerrymandering Should Be Against the Law (But What Is It?)

Does it make any sense that Republicans running for the State Assembly in Wisconsin in 2012 received 48.6% of the two-party statewide vote, but ended up with 60.6% of the Assembly seats? Is it fair that they received 52% of the two-party statewide vote in 2014, but won 63.6% of the Assembly seats?

Of course not. But that is exactly what happened. [1] And it is unsurprising that these results engendered a lawsuit: Whitford v. Gill. The plaintiffs accuse the state of using gerrymandering tactics “that ‘wasted’ Democrats’ votes — both by spreading them out so they could not achieve a district majority (‘cracking’) and by concentrating voters in a small number of districts to limit the number of seats their party could win (‘packing’).” [2] (“’”Wasted” is…a term of art used to describe votes cast for losing candidates and votes cast for winning candidates in excess of 50% plus one . . . .’”)

“Political gerrymanders predate the founding of the United States. However, the judicial branch has yet to develop a coherent approach to delineating the constitutional limits of partisan gerrymanders. In fact, in 2004, a plurality of Justices in Vieth v. Jubelirer resigned themselves to the idea that partisan gerrymandering claims are nonjusticiable because ‘no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged.’ However, in his concurrence, Justice Kennedy held out hope for judicial review, challenging lower courts to search for the kind of standard that the plurality had given up on finding.” In other words, while political gerrymandering doesn’t seem fair, it is difficult to articulate a standard that everyone should comply with, and the Supreme Court has yet to accomplish it.

But in Whitford v. Gill, the federal district court may have fulfilled the wish of Justice Kennedy and come up with a coherent standard. As the Harvard Law Review puts it,

“To identify excessive partisanship, the majority adopted the plaintiffs’ three-prong standard: a districting plan violates the Constitution if it ‘(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.’”

The case is now with the Supreme Court, and oral arguments will be heard on October 3rd. [3]

By Steven Nass 
While it will be useful if the Court can come up with a standard to rid the world of political gerrymandering rather than just throwing up its hands, the real cure for the problem will not be an option for the Court. That cure is to abolish legislative districts entirely, and have representatives run at-large. That way, there will be a correspondence between the number of votes a party gets and the number of seats that it wins, and we won’t see absurd results such as have obtained in Wisconsin. And if a candidate was running for a seat in a 99 member state assembly, he would only need to finish in the top 99 to win a seat.

But geography is an important consideration in legislative representation, it might be said. Wouldn’t an at-large election eliminate that representation feature? Not at all. People would still be able to vote for people who lived near them. What’s more, geography isn’t the only factor that causes people to have a unity of interest. In fact, it is questionable that it is even a chief factor. A person who makes less than the median income is likely to have more in common politically with someone on the other side of his state with the same income than he has with a wealthy person who lives less than five miles from him. Proximity as a determining factor of representation is a highly overrated idea.

But we’ll probably have to settle for getting rid of gerrymandering, if we can achieve that much.