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Friday, 13 October 2017 06:19

Will the Supreme Court Allow the Gerrymandering of Democracy?

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gerrymanderThe first image representing gerrymandering, from the early 1800s. (Photo: Kenny Cole)

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The most significant recent case that will have an impact on whether or not we have a robust and fair democracy is before the Supreme Court this session. Oral arguments have already been heard on the partisan practice of gerrymandering.

An October 5 Fortune article defines the practice:

Gerrymandering occurs when voting districts are redrawn to benefit one party over another in elections, forcing the other side to “waste” votes. For example, someone drawing district lines might cluster opposition party voters together in one district in order to concentrate their votes so that they influence only a few seats. Or it could mean grouping those opposition voters into districts where the other party has a lock on power—making it very difficult for the opposing party to win elections there.

Achieving this normally means dividing districts up along highly irregular lines to ensure that voters from each party are concentrated in the right areas and spread thin in others, as the Washington Post illustrates using a popular explanation adapted from Reddit. Now, with the assistance of software, state legislators are able to control gerrymandering or who ends up in a particular district with more precision than ever before.

Although the Democrats sometimes engage in gerrymandering when they control legislatures and the governorship in a state, it is the Republicans who have mastered the technique. Furthermore, as I noted in a September commentary, there are 26 states in which Republicans run all three branches of state government -- a "trifecta" of governance. Only six states are completely run by the Democrats. As a result, the Democrats are at a severe disadvantage when it comes to creating state legislative and congressional districts when they are redrawn after a census.

In the case before the Supreme Court, Gill v. Whitford, the plaintiff attorneys argue that after the 2010 census the Wisconsin legislature created state legislative districts that were highly weighted toward maximizing Republican votes.

In an interview with Fairness and Accuracy in Reporting (FAIR), journalist Steven Rosenfeld describes the origin of the current case before the Supreme Court:

What happened was the Republicans, after they got completely trounced by Obama in 2008, saw a way back from political wilderness, as the cliche goes, and they realized that if they won enough seats in state legislatures in 2010 that they could draw the maps that would last this decade. So Karl Rove wrote about this in the Wall Street Journal, the Democrats from Nancy Pelosi to Obama completely ignored it, and then the Republicans went out with some of the nastiest political ads you could ever imagine at the local level, and they just emptied these legislatures out of long-time citizen legislators. They called women prostitutes, they called guys every kind of crook imaginable.

And then they drew the maps, and what they did was they drew maps segregating the reliable voters, their party’s and the Democrats. They looked at who came out and voted for John McCain in 2008, which was a lousy year, and they made sure that in these districts, they would have at least 56 percent, sometimes not too much more than that, reliable Republican majorities. And they put the Democrats, they packed them into other districts where they would typically win with 65, 70, 75 percent of the vote. So that’s how you end up getting these Republican supermajorities. It’s how they control the US House, it’s how they control all these states that you think should be purple, like Wisconsin or Georgia or North Carolina, but instead they’re firmly, firmly red.

Rosenfeld notes that the courts have ruled that it is, in theory, illegal to gerrymander to create districts by race. It is not illegal -- as of yet -- to engage in the practice for partisan purposes.

An Associated Press (AP) analysis of the 2016 legislative elections found

that Republicans won as many as 22 additional U.S. House seats over what would have been expected based on the average vote share in congressional districts across the country. That helped provide the GOP with a comfortable majority over Democrats instead of a narrow one.

Republicans held several advantages heading into the 2016 election. They had more incumbents, which carried weight even in a year of "outsider" candidates. Republicans also had a geographical advantage because their voters were spread more widely across suburban and rural America instead of being highly concentrated, as Democrats generally are, in big cities.

Yet the data suggest that even if Democrats had turned out in larger numbers, their chances of substantial legislative gains were limited by gerrymandering.

Michigan, for example, which is normally considered a blue state in national elections -- even though Donald Trump carried it in 2016 -- had a Republican legislature and governor when the districts were redrawn after the 2010 census. This included congressional districts. As a result of the partisan carving out of electoral boundaries, Michigan currently has nine Republican Congress members and only five Democratic representatives. Michigan's US House delegation is almost two-to-one Republican, primarily due to gerrymandering. Yet -- as an indication of the state's broader tilt -- it has two Democratic US senators.

The AP analysis describes how gerrymandering generally occurs in two ways:

--"Packing" a large number of voters from the opposing party into a few districts to concentrate their votes.

--"Cracking," in which the majority party spreads the opposing party's supporters among multiple districts to dilute their influence.

Although Congress is generally treated by the mainstream press as representing a mirror of the US voter, it actually is a distorted and biased representation of districts created that disfigure the will of a state's voters rather than fairly representing them. The same applies to the Republican-dominated states that created partisan-designed state legislative districts.

In his interview with FAIR, Rosenfeld estimated that when combined with suppressive voting laws, partisan redistricting could yield a 10 percent party line advantage in some districts:

It’s segregating voters, reliable voters, and it gives you a 6 percent head start. And then you have other things that academics have tracked. Strict voter ID peels off another 2 or 3 percent. And then pretty soon Republicans have a starting line advantage, before anybody knows who’s running, of 10 percent. And for you to win elections by more than 10 percent, I mean, maybe we’ll see that in 2018, but, gosh, it’s so, so rare.

Rosenfeld identifies how the Republicans seized the day to create a GOP-dominated map:

Well, the Republicans in 2010, after they won political monopoly control in lots of states—they targeted a dozen states, and these are the states that are always among the finalists in presidential elections. We’re talking about Virginia, North Carolina, Florida, Georgia, Ohio, Michigan, Wisconsin, Texas. And it’s as if we have two entirely different countries and two entirely different sets of voting rules. We have blue state coastal America, where none of this stuff is happening. People almost don’t understand how could this be happening, they can’t relate to it in their experience. And then you have this red state set of rules.

Now we are headed toward the 2018 elections. The corporate news media headlines will center around individual candidates. The lopsided electoral map will hardly be discussed. However, partisan gerrymandering poses a great threat to a representative democracy.

There is a lot hanging on the Supreme Court decision. If the justices rule that egregious partisan gerrymandering is constitutional, representative democracy will take a grave hit.