The Electoral College, State’s Rights, and the Principle of Local Government: Part 2

As discussed in the previous post, the basic principle underlying most defenses of the Electoral College and the State’s Rights cause is that the closer government is to the people it represents, the better government works; and the more separated the government is from the people, the more room there is for corruption and insider politics to grow. I argued in the last post that, in reality, this is not true in the case of the Electoral College. In particular, it was noted that the unequal distribution of electors has historically favored (and still favors) the interests of particular groups of people over the interests of other groups of people; and the switch from district by district elector choice to a winner take all system worked (and works) to benefit established political parties and to allow those in power to stay in power. I was going to cover gerrymandering and State’s Rights in this post, but, for the sake of manageable sizes, I will put the State’s Rights discussion in a third post. In this post, I want to point out the ways in which localized government, particularly at the state level, does not necessarily ensure representation closely aligned with the represented. Through gerrymandering, state politicians can use their power to ignore the political demographics within their own states for the purpose of bolstering partisan representation at the state or national level, leaving significant portions of the population within the state badly under-represented.

Gerrymandering and Redistricting

For as long as America has elected House representatives, these elections have been carried out district by district, with a popular vote within the district determining the representative (the same system is used, though with different district boundaries, for State House representatives). This also means that, for as long as this system has existed, someone has had to draw the boundaries of those districts, and continually redraw them as the population changes (usually every 10 years, following the census). While this is a necessary part of the representative system, however, it has always left room for abuses of power. If those in power draw the district boundaries, then there always exists the temptation to draw boundaries in a way that will reinforce their own position of power and make winning harder for the competition. Since 1812 this partisan abuse of the redistricting process has been called “gerrymandering” (after MA Governor Gerry, who’s abuse of the system is legendary). This is how gerrymandering works (using the most simple and common explanation):

gerrymandering

As seen in the example, gerrymandering allows those who draw the boundaries to draw them in ways that ensure disproportionate representation for their own party. Representation proportionate to the electorate would be 2 red and 3 blue, but by strategically grouping the voters, those drawing the boundaries can ensure a complete win for blue or 3/5 (instead of 2/5) representation for red. (If you want another, more creative explanation, watch this video).

In real life, this is exactly how gerrymandering works: the party in power uses its power to group voters in ways that ensure the greatest number of representatives for themselves (disproportionate to the political demographics of the state itself). As in the examples, gerrymandering is most noticeable when the shaped of the districts are the least compact (or, the most irregular). Here are some examples:

md-and-pa-dist

fl-and-la-districts

tx-districts
It is important to remember when looking at these maps that they are drawn at the state level, not the district level. Because of this, gerrymandering usually results in, for example, Republicans creating all-Democrat districts, or vice versa. The point is for one party to group as many voters who are unlikely to support them as possible into one district, leaving the surrounding districts with as few of those voters as possible (making them more secure for the party in power). So while PA’s 7th district is gerrymandered to ensure a Republican victory (leaving the districts around it with a higher density of Democrats), LA’s 2nd district is designed to pack as many Democrats as possible into one district so that the surrounding districts will have a higher density of Republicans. Since Alaska, Hawaii, Montana, Idaho, Wyoming, North Dakota, South Dakota, Main, Vermont, New Hampshire, Rhode Island and Delaware each get only one or two Representatives, their electoral maps are very simple and compact, with no gerrymandering. Nevada, Kansas, Iowa and Indiana have larger numbers of representatives, but are also sparsely populated, leading to similarly compact, fair boundaries that track closely with the political alignments of the electorate. States with the worst gerrymandering problems are (as one might have predicted) swing states and states where rapidly changing demographics are endangering a once secure majority.

Because the majority of the states are currently held by Republicans, including the most sharply divided swing states and many of the states with the most rapidly changing demographics, the worst current problems with gerrymandering are perpetrated by Republican governments. Of the ten most gerrymandered states, Republicans drew the boundaries in six and Democrats in four. So, for example, in Maryland the electorate leans strongly Democratic, yet, while the division of the electorate is 60.5% Democrat to 35.3% Republicans, the house seats are divided 7/8 Democrat (88%) to 1/8 Republican (12%). In this case, the Democratic majority within the state is not in jeopardy: gerrymandering simply allows those in power to strengthen their hold on power and make a greater contribution to their party’s strength at the national level by shorting the minority party voters in their own state on representation. Similarly, Republicans in Alabama have a comfortable 62% of the popular vote, yet they have amplified this advantage by gerrymandering districts to allow for secure Republican victories in 6/7 districts (86%) allowing only 1/7 district to go Democrat (14%).

In North Carolina, where the electorate splits pretty evenly between Republicans and Democrats in general elections (50.5% and 46.7% respectively in this election), the state has 10 Republican representatives in the US House out of 13 total (78%) and only 3/10 Democrat (22%). While NC, due to rapidly growing African American and Hispanic populations, is a true swing state in general elections; because of gerrymandering, the state’s representation remains firmly Republican. (See map below of NC districts: the gerrymandering is plain).

north-carolina-districts

Similarly, in Texas, a traditionally safe red state, changing demographics have already made non-whites the new majority within the state, threatening to undermine long-time Republican control. Here, while Republicans won 52.6% of the popular vote (a bare majority), gerrymandering has allowed them to retain control of 70% of the US House seats (25/36). (For an interactive map of all US House districts in the country, rated according to their level of gerrymandering, look here).

This is not just a problem with US House districts either. State governments also use gerrymandering to maintain their hold on state Houses. In the North Carolina State House, Democrats hold only 45/120 seats (37%) while Republicans hold 75/120 (63%) (again, with Republicans in the state only actually wining 50.5% of the electorate). Despite the fact that the population of Wisconsin is divided between parties by a margin of only 1% (47.9% R, 46.9% D), Republicans hold the statehouse by a very comfortable margin: 63/99 seats Republican (64%) and 36/99 seats Democrat (36%). The Texas State House seats (again, with Republicans claiming 52.6% of the popular vote) are divided 100/150 Republican (67%) and only 49/150 Democrat (33%). In all of these states Republican governments are using gerrymandering to hold onto firm state control that is rapidly leaving them behind in terms of the electorate itself.

Since gerrymandering is obviously such a problem, why don’t we have laws against it? The Supreme Court actually used to have a standard for overturning gerrymandering (stemming from a 1964 ruling that the 14th Amendment provided equal protection for everyone under the law) which held that any attempted redistricting which “consistently degrade a voter’s or a group of voters’ influence on the political process as a whole” was unconstitutional. Unfortunately, the 2004 Supreme Court decision in Vieth v. Jubelirer–split perfectly down party lines (with the five Republican Justices trumping the four Democrats)–overturned that standard as unconstitutionally infringing on the rights of State governments, and failed to replace it with anything else (upholding a Republican controlled PA gerrymander). Since then, the only real regulation against gerrymandering (barring a few state laws) is the Voter Rights Act of 1965, which prohibits gerrymandering on the basis of race. Even this regulation, however, is easily circumvented. Whenever a particular ethnic minority within a state votes dependably for one party, state lawmakers often resort either to gerrymandering them into compressed voter blocks, leaving far fewer voters from this minority in the surrounding population, or to using gerrymandering to disburse that minority group’s geographical presence across a wider spread of districts, thereby diluting the strength of their vote in any one district (if this sounds confusing, imagine that the reds and blues in the gerrymandering explanation above are white and non-white voters instead of Democrats and Republicans). Lawmakers can get away with this simply by publicly ignoring the fact that they are targeting a particular minority, instead presenting the gerrymandering as based on political affiliation rather than race (since that has more legal protection). If the borders of the districts drawn are irregular rather than compact, though, and if their irregularities result in a dilution or concentration of minority voters that diverges significantly from the demographics of the whole area, then writing such actions off as purely political and not racial is a slight of hand. Targeting minorities because of their political affiliation is no less a racial issue than targeting them out of prejudice against their race (either way, the minority loses fair representation).

Racial gerrymandering can, at times, actually be beneficial. The highly gerrymandered Illinois 4th and 7th US House districts were designed by Democratic lawmakers in the 1990’s to concentrate enough voters from neighboring Hispanic and African-American communities (respectively) to allow each to elect their own representative in Congress (leading to the very first Midwestern Latino representative). This is called a ‘minority opportunity district.’ The point of such districts, however, is to ensure that minorities have a percentage of the total representatives for a larger area (e.g. the city of Chicago) proportionate to their share of the population within that city. In this case, the effect of the gerrymandering is the same as the effect of the “perfect representation” example above.

il-districts

Far more often, however, racial gerrymandering is in service to broader partisan interests. Following the 2004 Supreme Court case, and the Court’s 2013 decision in Shelby County v. Holder to overturn the Voting Rights Act of 1965 stipulation that states with a record of racially discriminating voter laws must receive federal approval before making voting changes (including redistricting changes), states across the South have drastically increased their voting restrictions (discussed more in the next post) and gerrymandering, often with a very clear impact on minority voters (though the expressed purpose is to impact partisan voters, not minorities per se). One such set of laws was a series of attempts in Texas to create districts which only counted eligible voters as members of the represented population. Texans supporting these laws argued that, because the law since 1964 has required every district to have roughly the same number of people in it (to curb racial gerrymandering), districts with large numbers of undocumented residents and children have fewer eligible voters, meaning that the votes of the smaller number of voters in those districts carry more weight (within their district) than the votes of eligible voters in other districts with a higher proportion of eligible voters (within their districts).

A series of court battles between 2004 and 2016 on this issue resulted in the 2016 case Evenwel v. Abbott, in which Texas Republican Governor Abbott pushed for the state’s right to redistrict ignoring the existence of non-voters. This case was of crucial importance for two reasons. First, the underlying issue was that, statistically, minorities have more children than whites and, statistically, both minorities in general and undocumented immigrants specifically tend to live in high population density areas. If Texas was allowed to not count children or undocumented immigrants as people when determining representation districts, then Republicans could have redistricted in ways that increased the number of representatives for more rural, less diverse parts of the state while decreasing the electoral representation of people living in more densely populated, racially diverse areas: resulting specifically in a system that decreased representation proportionally as the numbers of minorities increased. Second, the premise of the proposed Republican changes was that representatives are only responsible for representing people who vote (especially those who vote for them), not all the people in their district (a premise that has roots in the Southern argument during the first decades of American history, discussed in the last post, that, for the sake of “fairness,” non-voting populations–slaves–should be ignored in determining representation). Fortunately, in this specific case the Supreme Court ruled against the proposed Texas gerrymander, upholding the longstanding principle that representatives are responsible for representing everyone in their district, whether they can vote or not. Similar gerrymandering lawsuits regarding Republican gerrymandered districts (proposed or enacted) in Florida, North Carolina, Alabama and Wisconsin have been working their way through the court system for several years (all with racial elements to the problem). [Look here and here for more information on some of these].

Conclusion

While gerrymandering across the country in individual states resulted in a net gain in US House representation to Democrats in the 1980’s and earlier, the 1990’s through to the present have increasingly seen a net gain to Republicans through gerrymandering. Again, this is, in part, due simply to an upsurge in conservativism nationwide in the late 80’s and early 90’s which swept Republicans into state control across the country, meaning that they are more often in positions to gerrymander and are therefore more often the perpetrators of gerrymandering. So, while it would be inaccurate to say that gerrymandering is particular to Republicans or historically more abused by Republicans, it is accurate to say that at this time in American history, Republicans are the worst offenders in this regard. It is also fair to say that racial factors–whether as a primary motivation (animosity towards another race) or a secondary motivation (particular minority groups favor Democrats)–figure prominently in gerrymandering decisions in many cases of Republican gerrymandering now. (The place of racial gerrymandering within a larger network of ongoing race-related political maneuvering historically rooted in identical legal action occurring in the heyday of legal segregation and discrimination is an issue that cannot be fully addressed here; though it will be further addressed in the next post–on State’s Rights and voting laws–and addressed in full in a later, longer post on the role of race in American politics). In the cases discussed above, gerrymandering abuses within individual states have been allowed and perpetuated–and legally defended–specifically through appeals to the division between State and Federal authority over in-state districting and voter decisions. This means that, by and large, gerrymandering has been defended, perversely, by appealing to the principle of local government as more representative of local interests; yet, despite this fact, gerrymandering very clearly elevates national partisan interests above local representation and, very often, denies members of the local community fair representation in either state or national government. Like the electoral college, then, gerrymandering is a system built on partisanship and contrary to the interests of representative government.

The good news is that, at least on the level of principle, Democrats and Republicans agree that gerrymandering is wrong and counter to the interests of representative government. Again, the idea that establishment politics is self-perpetuating and more concerned with furthering party interests than with local representation is an idea that populists in both parties campaigned on during this election. The question here, as with the electoral college, is whether members of both parties will stick to that principle now that they are in a position to do something about it. As already noted, gerrymandering is a sin of those in power, exercised to consolidate and retain power. Republicans now hold the majority of power at the State and Federal level (including both houses of Congress, the White House, and control of the Court). If this issue is going to get fixed, it will necessarily mean Republicans choosing to create a better system–even at the cost of some of the power they now have–over holding onto the power they have: a decision which, based on the gerrymandering examples discussed above, Republicans have not been at all inclined to make in areas where they have held power. It would also mean creating Federal legislation to override State tendencies toward the gerrymandering of partisan success, in the interest representation more representative of the local population: an idea that is counterintuitive to the general conservative insistence on State power being prioritized over Federal power. But, if Republicans have truly found within themselves a burning desire to reform government and make it more representative (as has been claimed throughout this election), then they should be on board with turning the page on the old, established ways of thinking that have sustained establishment politics for decades. If not, then it was all just another sleight of hand used to further entrench those in power.

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