November 22nd, 2016 by Steve Hanley. Published in Think Progress.
The non-legal term for drawing voting maps that torture logic is “gerrymandering.” Here’s an example of how it works. Instead of making a voting district that contains a lot of minority voters, party officials hack neighborhoods into slivers and assign them to surrounding neighborhoods that have mostly white voters. That way, the minorities have their political power reduced. If that sounds like it should be illegal, you’re right, but as Lyndon Johnson once said, “Politics is war!” and to the victor go the spoils.
Say Hello To The Gerrymander
Gerrymandering has been part of American politics for a long time. For a little history, let’s turn to Wikipedia. One look at the cartoon that accompanies the entry says it all. The resulting district does indeed resemble a rather malevolent looking salamander.
“The word gerrymander (originally written Gerry-mander) was used for the first time in the Boston Gazette on 26 March 1812. The word was created in reaction to a redrawing of Massachusetts state senate election districts under Governor Elbridge Gerry. In 1812, Governor Gerry signed a bill that redistricted Massachusetts to benefit his Democratic-Republican Party. When mapped, one of the contorted districts in the Boston area was said to resemble the shape of a salamander. The original gerrymander, and original 1812 gerrymander cartoon, depict the Essex South state senatorial district for the legislature of The Commonwealth of Massachusetts.”
The practice of gerrymandering has been challenged many times in the US Supreme Court but the court has been reluctant to inject itself into political considerations that are internal to the individual states. That didn’t stop the court in 2000 from jumping directly into the middle of the presidential election and putting George W. Bush into the White House by a vote of 5 to 4 despite Al Gore winning the popular vote, however.
The 7th Circuit Weighs In
Now a sharply divided 7th Circuit court has ruled that the gerrymander maps drawn by Republicans to solidify and preserve their power in Wisconsin are so egregiously drawn that they are unconstitutional. The majority opinion in the case was written by Judge Kenneth Ripple. Lest you jump to the conclusion that Ripple is some fire breathing radical who ran around naked and smoking dope at Woodstock, be assured that in fact he was appointed by none other than Ronald Reagan, the patron saint of the Republican Party. He wrote:
“We conclude, therefore, that the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (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 Plot Is Revealed
The opinion reviews in detail the great lengths state mapmakers went to in order to ensure that Republicans performed very well under the state’s assembly maps. The court noted they developed a mathematical model for evaluating voter partisan preferences and drew up spreadsheets identifying the likely winner in various proposed districts. They gave potential maps labels like “assertive” or “aggressive,” which indicated how likely that map was to elect Republicans.
In drafting the “final map,” the mapmakers determined that “Republicans could expect to win 59 Assembly seats, with 38 safe Republican seats, 14 leaning Republican, 10 swing, 4 leaning Democratic, and 33 safe Democratic seats.” One of the mapmakers also testified to the Republican caucus that, ‘The maps we pass will determine who’s here 10 years from now. We have an opportunity and an obligation to draw these maps that Republicans haven’t had in decades.”
Nothing Succeeds Like Success
The court’s opinion finds that the final map worked even better than its drafters had hoped. “It secured for Republicans a lasting Assembly majority. It did so by allocating votes among the newly created districts in such a way that, in any likely electoral scenario, the number of Republican seats would not drop below 50%.”
Even if Democrats won 54% of the votes, they still could only win 45 seats . Republicans would “own” the other 54. In 2012, Republicans got just 48.6% of the vote but won 60 seats in the 99 seat Assembly. Two years later, when they got 52% of the vote, they won 63 of the 99 seats. One expert testified that even if Democrats got 54% of the votes they could not win more than 45 seats , guaranteeing that Republicans maintained their control of the state legislature.
What Will The US Supreme Court Do?
The ruling, of course, will ultimately wind up before the US Supreme Court. As has happened so often in recent court history, the swing vote belongs to Anthony Kennedy. In a prior decision involving election maps, Vieth v. Jubelirer, Kennedy fretted about “the failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights.” But then he added, “If workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”
Lawyers for the plaintiffs in the Wisconsin case provided the court with just such a workable standard. They couched their arguments in terms of what is known as the “efficiency gap.” That is a fairly complex and convoluted statistical concept that is explained in great detail in an article published by Think Progress.
Suffice it to say that the “efficiency gap” is a mathematical formula which measures how many votes are “wasted” because voters were either “packed” into districts that overwhelmingly favored Democrats or “cracked” into districts where a Republican was already fairly certain to win. That may be just the hook Justice Kennedy needs to uphold the Wisconsin court’s decision.
The 7th Circuit court has asked the parties to submit additional arguments regarding the appropriate remedy for the maps the court has now found to be unconstitutional. By the time its ruling becomes final and the Supreme Court hears and decides the case, the next round of elections will have come and gone. But there is still a hope that sometime in the near future, Americans will be allowed to choose their own lawmakers rather than having lawmakers choose their own voters.
Source: Think Progress Photo credit: Wikipedia