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This column originally appeared on Findlaw.com

 

 

The Supreme Court Considers Sophisticated Political Gerrymandering


Are Voting Rights Preserved If Boundaries are Drawn to Ensure Particular Election Outcomes?


By EDWARD LAZARUS
elazarus@findlaw.com

 


Thursday, Dec. 25, 2003

In Isaac Asimov's science fiction classic, The Foundation Trilogy, the science of statistics has become so advanced that the future of government and society can be predicted with terrifying accuracy. Although free will may exist at the individual level, it effectively disappears in every circumstance of group behavior, because the ultimate outcome of all group conduct can be known by statisticians in advance.

Life is once again imitating art. Armed with the data-manipulating power of new computers, political operatives can now effectively predetermine the results of most elections. All they must do to accomplish this, is to re-jigger the boundaries of electoral districts to include certain voters and exclude others.

This improved predictive capability opens the door to at least two kinds of mischief. First, it allows the political party that controls a state legislature at the time of redistricting to reconfigure electoral districts to lock in its partisan majority. Second, it allows incumbent legislators an ability to design safe seats for themselves and, thus, preclude meaningful competition in subsequent elections

Does the Constitution prohibit this kind of outcome-determinative political "gerrymandering" - as the practice is known? That is the question now pending before the U.S. Supreme Court, in the case of Vieth v. Jubelirer.

During the December 10 oral argument in the case, the Justices showed little inclination to curb the practice. However, it would much better for our democracy if they would do so. A pre-decided election is perilously close to no election at all -- no matter who is favored. And incumbents, in particular, already have such a great advantage, that their attempts to amplify that advantage through gerrymandering ought to be especially troubling to us all.

 

The Facts of the Pennsylvania Case

 

The case currently before the high court comes from Pennsylvania. As a result of the 2000 census, that state lost two of its 21 congressional districts. It thus fell to the state legislature to redraw the boundaries of the state's remaining 19 districts.

Generally speaking, Pennsylvanians vote Republican and Democratic in roughly equal numbers. In the 2000 election, Al Gore won the state with just under 51% of the vote. By the same token, at the time of the census, the state's congressional delegation contained 11 Republicans and 10 Democrats.

As it happened, however, at the time for redistricting, both houses of the state legislature (which devises the electoral maps), as well as the governorship, were controlled by the Republicans. And using the new advances in voter databases, mapping, and other computer technologies, they went about locking in their majority with a vengeance.

Pennsylvania's Republicans could have chosen a neutral principle by which to draw the boundaries. One option would have been to maximize the geographic "compactness" of districts. Another would have been to adhere to natural or historical boundaries. But they eschewed both options.

Instead, they created a kaleidoscope of meandering districts carefully calibrated to achieve two goals. One was to push Democratically-inclined voters into a small number of districts. The other was to spread Republican voters in a way that would give them the greatest influence on electoral outcomes.

This kind of gerrymandering can have dramatic -- and pernicious -- results. Consider three counties, each of which has a 50/50 split between Democrats and Republicans. What you have is true democracy: Candidates' views will matter as to how the balance is tipped. The outcome is completely up for grabs. But now gerrymander these same counties so that one county has virtually 100 percent Democrats, and the other two each have 25 percent Democrats. The outcome is virtually pre-set: One Democrat Congressperson, and two Republicans.

Given possibilities like this one, it's no surprise that in the end, the Republicans succeeded in a drawing a map that, at least until the next redistricting, was almost certain to guarantee that Republicans would control 12 or more of the state's 19 congressional seats, even if, on a statewide basis, half of Pennsylvania's voters cast ballots for Democratic candidates.

If Pennsylvanians' party preferences were truly taken into account, the State should have 9 or 10 Republican representatives. Now, however, they are virtually certain to have 12 or more. That's not democracy; it's an outrage.

Put another way, Pennsylvania's Republicans assured their party of at least two more seats in Congress than they would have obtained if redistricting had been done on a non-partisan basis. So much for a level playing field -- Democrats are not only facing an uphill battle, they are facing one that is, in many districts, practically unwinnable. And the result is all the sadder in a state that is so evenly-decided that reasoned debate -- not head-counting -- could have carried the day.

 

The Pennsylvania Tactics Have Been Used In Other States, As Well

 

Worse, this phenomenon is not limited to Pennsylvania. Republican-dominated state legislatures in Texas and Colorado have been engaged in the same enterprise. (Indeed, the political gerrymandering in these states is even more egregious than in Pennsylvania because it is occurring only two years after the last redistricting -- rather than in accord with the customary ten year cycle regulated by the census).

Not surprisingly, Democrats are threatening to retaliate in states they control. And one important thing to realize about this tactic is that, in the end, every voter loses. Which party manages to entrench itself through gerrymandering, makes no difference in terms of the constitutional cost: Either way, the right to vote is impaired, as voters cast votes in what is, in essence, a pre-decided election.

The consequences of such pinpoint redistricting are profound. Every two years an election is held for the nation's 435 congressional seats. But in reality, thanks in significant part to clever redistricting, only a few dozen Congressional seats are truly up for grabs. The rest are guaranteed to the candidate of one party or the other - and usually by a margin of 20% or more.

All this makes the trip to the polling place a nearly pointless exercise -- except in a symbolic sense -- for tens of millions of voters.

 

The Pernicious Problem of Incumbents Preserving Their Seats

 

Moreover, if you're a candidate trying to unseat an incumbent, forget it. These candidates enjoy both artificially safe districts and the inherent advantage in fundraising that comes from incumbency. That's a virtually unbeatable double-barreled advantage

Sadly, even states that aren't engaged in partisan gerrymandering, tend to still be engaged in incumbent-favoring gerrymandering. In California, for example, electoral lines were not redrawn via computer to tilt the scales toward one political party or another. But they were redrawn to ensure re-election for all California's congressional incumbents by carving out districts containing a majority of their likely supporters.

The need to run for re-election is meant to keep the incumbent honest, and responsive to voter needs. When re-election is improperly guaranteed, the way is opened even further for corruption and for capture by special interests. Proponents of campaign finance reform are concerned about these problems -- but even if they were to succeed in all their efforts, gerrymandering might still allow these evils into Congress, through another door.

 

Pre-Set Elections In A Deeply-Divided Country: Why It's Especially Troubling

 

In sum, the arteries of our democracy are hardening. And the process is all the more tragic given that the country is narrowly and deeply divided politically.

Indeed, ironically, the non-competitiveness of so many general election races actually increases the destructive polarization of our body politic. -- in several ways

At the state level, the process of partisan gerrymandering creates the kind of deep resentments that undermine sound policymaking. But this is only part of the problem.

Real competition now occurs not in the general election but at the threshold stage of party primaries, which are dominated by Republican and Democratic party activists. These primaries tend to produce Democrats who are to the left of the center of their own party, and Republicans who are to the right of the center of their party.

Thanks to gerrymandering, these candidates still win in general election walkovers, despite their relatively extreme views. And as a result, we end up with a Congress that, in aggregate, is more polarized than the electorate as a whole. And a Congress composed of extremists on both sides of the aisle is hardly likely to come up with the kind of reasoned compromises that will truly reflect the views of the electorate. Moderates speak to one another; extremists simply declare war.

 

Why the Supreme Court Should Intervene in the Political Thicket of Gerrymandering

 

The question remains, of course, whether all this is any of the Supreme Court's business. Judicial conservatives have long argued that the Court should stay out of the "thicket" of politics as much as possible - and the state of Pennsylvania argued just that at the Court during the recent oral argument in Vieth.

Still, a strong case can be made for judicial intervention. Granted, Justices favoring judicial restraint (such as Felix Frankfurter) have warned in almost apocalyptic terms against judicial policing of election processes. But in practice their fears (Bush v. Gore notwithstanding) have generally gone unrealized.

Baker v. Carr and other Warren era decisions established the principle of one-person/one-vote. Can it be seriously argued today that these decisions were wrong to do so?

To the contrary, as powerfully advocated by John Hart Ely, the recently deceased author of the groundbreaking book Democracy and Distrust, the Court is on the soundest theoretical footing when it ensures the fairness and truly democratic nature of the political processes.

As Ely recognized, by actively policing the procedural channels of democracy, the Court enhances the legitimacy of the substantive laws that elected legislators ultimately devise. Put another way, the Court is properly concerned with policing the sausage-making process, even if it ought to stay out of the fight over the ingredients.

In the modern era, the Court already has tacitly recognized this point when it comes to racial gerrymandering. Laudably, it has declared unconstitutional redistricting plans designed to dilute the voting strength of black voters, thereby preventing the election of black candidates. And, more controversially, it has also struck down gerrymandering designed to facilitate the election of minority candidates, even in regions of the country where minorities suffered historic discrimination.

In sum, the Court has made very clear that, in its eyes, all race-based gerrymandering is unconstitutional, and that the Court will fully enforce that constitutional precept. It should do the same for political gerrymandering -- which is almost as dangerous and pernicious.

The Court has made very clear that it is wrong to effectively disenfranchise minority voters by drawing district boundaries in a way that dilutes the effectiveness of their votes. Given that fact, why is it not also unconstitutional to use the same kind of tactics to disenfranchise voters on the basis of their political affiliations and beliefs? In both cases, the principle of equal voting rights is seriously compromised.

This is a problem that the Framers would readily recognize. In setting up our republican system, one of the British political practices they sought to eliminate was the system of "rotten" boroughs that undermined true representative government in England. The safe seats created by political gerrymandering are the modern counterparts to the rotten boroughs of that era.

Recently, in McConnell v. Federal Election Comm'n, the Supreme Court upheld the main provisions of the McCain-Feingold campaign finance law. In so doing, the Court recognized Congress's authority to fight the corrupting influence of money on electoral politics.

The Court ought to follow up on this brave move by striking down Pennsylvania's challenged redistricting plan. If it does so, then it will be striking its own blow against the corrupting influences of partisanship and incumbent self-preservation on the same process.

From an institution that has not always been a friend to democracy, that would be a welcome blow indeed.

 

 

Copyright © 1994-2003 FindLaw


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.



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