Will ending gerrymandering help end hyper-partisan politics?

Members of Congress or the courts must act to end partisan gerrymandering. It undermines our democracy, diminishes the voice of moderate voters, and contributes to the tribal wars between the parties.

James Madison was highly suspicious of political parties. Some scholars have suggested that he envisioned the country without political parties at all. But in Federalist No. 10, Madison seemed to recognize that factions would always be a part of political life. Nonetheless, he feared that, given free reign, political parties would serve themselves before national well-being. He would likely be horrified today by political tribes playing such an outsized role in American government —his worst fears realized.

Madison’s concern regarding a party’s immediate interest coming between the rights of another and the nation seems almost quaint in today’s hyper-partisan maneuvering. Research suggests that gerrymandering, the practice of drawing voting districts to benefit a particular party, contributes to polarization in American politics. Both the Supreme Court and Congress are debating this issue. While action by either branch won’t end hyper-partisan politics, it could go a long way in strengthening the legitimacy of our representative democracy and may relieve the courts from a potential flood of litigation every ten years.

Gerrymandering and its effect

Gerrymandering is generally a redistricting scheme designed to favor one political party in an election for an unlawful purpose. The practice itself is not new. The name is a combination of Eldrige Gerry and salamander, as in the small lizard-like creature.

Gerry was the Governor of Massachusetts in 1812 who carved up Essex County in a way that would win part of the election for Democratic-Republicans over the Federalists. The expression “gerrymandering” was coined by the Boston Gazette, which also published an editorial cartoon depicting the grotesquely shaped district as a salamander (of sorts), on March 26 of the same year.

Gerrymandering has become something of an art form since the last census in 2010. The results can be dramatic, both in the convoluted shape of some districts and the results at the polls.

A recent Associated Press study looked at 435 U.S. House of Representative races along with 4,700 elections for state assemblies. Using a statistical analysis, the study concluded that the Republican party gained a dramatic advantage, picking up as many as 22 seats in the U.S House of Representatives. The AP used standard analytical tools that statisticians have used for many years.

Likewise, the Cook Political Report issued a white paper in 2017 demonstrating that, of 435 contests in the House of Representatives, only 40 were competitive. The rest was a foregone conclusion for either Democrat or Republican candidates, a situation in which gerrymandering played a significant role. Legislation introduced in 2017 attempts to address the problem.

The Princeton University Gerrymandering Project and the Brennan Center for Justice at the New York University School of Law both have arrived at similar conclusions: the gerrymandering problem is severe. The Brenna Center went so far as to call aggressive gerrymandering tactics a “threat to democracy”. The Princeton project maintains data and maps so that voters can tell at a glance how gerrymandered their state is, while the Brennan Center tracks legislative attempts and current cases.

Both organizations aggressively support reform in the congressional, scientific, and judicial arenas. Their amicus work may be slowly turning the tide of opinion in the court system.

A court solution?

Courts have started to wade into the political muck of gerrymandering. Several significant cases are working their way through the court system; Wisconsin, Pennsylvania, North Carolina and Maryland are all facing challenges to their congressional maps.

The Supreme Court has already heard oral arguments in Gill v Whitford 16-1161 15-cv-421-bbc (W.D. Wis. 2017). But the Justices appear reluctant to tamper with districts because they distrust “sociology” tools.

In Whitford, Justice Roberts referred to the statistical analysis as “gobbledygook” during oral arguments. According to Roberts, if the methodology appeared to be arbitrary or difficult for an average person to understand, then rather than correcting a wrong, the Supreme Court could open itself up to being perceived as political. The Court is likely to issue an opinion in Whitford soon.

In spite of Justice Robert’s comment in Whitford, the statistical tools available are simple, reliable, and can be understood by anyone. It’s more mathematics than sociology, and certainly not gobbledygook.

Sam Wang, the author of the Stanford Law Review on the three evaluation tests, offers several easy to understand tests that may show the way forward when states are accused of gerrymandering. Vox has published articles co-authored by Wang and Brian Remlinger, a statistical research specialist at the Princeton Gerrymandering Project, explaining gerrymandering and offering simple, objective tools for courts to use when courts are asked to decide cases. By using a combination of proven methods, the court can avoid accusations of bias.

The Supreme Court’s concern about being perceived as “political” is quite real. When the Pennsylvania Supreme Court recently ruled that the congressional map drawn by Republican legislatures was a partisan gerrymander that violated the state constitution, Republican members of the state legislature began to discuss impeachment of the justices. Representative Chris Dush actually introduced such a resolution after the federal court refused to overturn the state supreme court’s decision to remap the gerrymandered districts.

Dush’s measure proposed to impeach the four Democrats on the bench and Republicans currently hold enough seats in both chambers to carry out an impeachment without Democratic support. In fact, Democrats hold fewer than half of the 200 representatives in the Pennsylvania legislature. Ironically, according to the state supreme court, they hold that power because of partisan gerrymandering.

This attack on the independent judiciary was questioned by the Republican Chief Justice of the Pennsylvania Supreme Court, Thomas Saylor, who said he was very concerned about the impeachment effort as potentially harmful to an “essential component” of constitutional government. Pennsylvania Republicans also appealed to the U.S. Supreme Court for a stay of the Pennsylvania Supreme Court decision ordering the use of the redrawn maps. On March 19, 2018, the Supreme Court denied the stay without comment. The new district map will, therefore, be in effect by May 15, 2018, when Pennsylvania holds its primary.

The most important aspect of the gerrymandering cases is that they are in the courts at all.  Courts have been reluctant to tackle the issue. But a combination of activism and organizations like the Princeton Gerrymandering Project have shown the court that:

1. The problem is extreme.
2. It threatens democracy.
3. It can be solved.

Advocates have established that gerrymandering presents a real threat to established statistical standards and common sense.

Congress not the courts

This problem doesn’t belong in the courts, and Congress has started to take notice.

In April 2017, a house resolution was introduced stating that gerrymandering was “…generally harmful to democracy” and calling for reform.

Moreover, Congress has a perfectly workable option on the table that would get Republicans and Democrats alike out of the illegal election tilting business. In June 2017, Representative Donald Beyer (D-Va) introduced H.R. 3057, the Fair Representation Act. The bill proposes significant changes to the way representatives are elected. Among the proposals:

• Establish ranked choice voting instead of a “winner takes all” system.
• Voters would be asked to assign a numerical rating to each candidate, with the highest point total winning.
• States would also be mandated to conduct redistricting using non-partisan, independent commissions, removing state legislatures from the decision-making process.

Thirty-seven states legislatures draw congressional boundaries. Only four states, including California, use independent commissions. The bill also has a complicated multi-member congressional district requirement for states with six or more house members.

Perhaps the most significant part of H.R. 3057 has nothing to do with its odds of passing —largely estimated at close to zero —but with the fact that it opens the discussion into a pervasive problem that in the end threatens both parties because of the loss of voter’ trust in the legitimacy of elected officials.

Unfortunately, since the introduction of the bill, it has languished in the House Judiciary Committee and will do so “…for a period to be subsequently determined by the speaker”.

In other words, if Paul Ryan decides to never bring the bill before the House of Representatives it will continue to languish, or die, in committee. If the speaker allows the measure to be brought before the House there might eventually be a workable bill to pass to the Senate.

Members of Congress or the courts must act to end partisan gerrymandering. It undermines our democracy, diminishes the voice of moderate voters, and contributes to the tribal wars between the parties.

Ending it is one step toward restoring the public’s faith in our representative democracy.

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