October 9th, 2017

On SCOTUS and gerrymandering:

The gerrymandering case before the Supreme Court is one of those things I’ve been meaning to research in depth but haven’t had the time to do yet. My gut feeling has been that gerrymandering is bad, but it’s done by both sides and is part of the general awfulness of politics, and I’m not at all sure I want the federal government to intervene. But that’s just my preliminary reaction.

Today I noticed this piece in National Review that said essentially the same thing:

…[Republican government]…is often messy, unseemly, partisan, hypocritical, and unprincipled. Self-interested politicians double as the referees, which means that there is always a danger that the rules will be written to benefit one side over the other. Shorn of the broader historical context, any individual infraction can seem like an existential threat to democracy itself. But in fact democracy is constantly facing such threats. This is in the very nature of self-government, and it is one reason the Framers divided power among so many different governing bodies. “If men were angels,” Madison wrote in Federalist No. 51, “no government would be necessary.”

The question is, What do we do about it? Let’s stipulate that partisan gerrymanders, at least in their extreme forms, are bad, and that technological advances in the last quarter-century have made them easier to draw. Do we really want the Supreme Court — nine, isolated lawyers in Washington, D.C. — making decisions about what is and is not appropriate for every legislative district in the nation? That strikes me as a far greater danger to self-government than gerrymandering. After all, partisan gerrymanders are by nature ephemeral.

Partisan identification is a fluid quality; electoral waves have a habit of sweeping out each side from time to time, regardless of the strength of a gerrymander; and the census every ten years guarantees that all district lines have to be redrawn eventually. Gerrymanders can be overcome, and they usually are. On the other hand, the Supreme Court is insulated from the back-and-forth of democratic politics. If it lays down a bad or misguided rule, it will be exceedingly difficult to undo. The Court — unlike every other branch in government — has carved out for itself an unassailable authority. Its rulings are not really subject to checks and balances, let alone popular sovereignty. What it says, goes — unless or until it can be persuaded to change its mind.

Seems correct to me.

And here’s an exceptionally informative article about some of the details of Gill v. Whitford, the Wisconsin case currently before SCOTUS in which they will decide whether the Republican-drawn districts are constitutional. I suggest you read the whole thing, because it’s a bit complicated, but here’s a discussion of some of the issues involved:

In considering the case, the Court will rely heavily upon the “efficiency gap,” a mathematical exercise based on how many votes each party “wastes.” The theory goes like this: The goal of gerrymandering is to win as many districts as possible with the voters your party has, and this is done by dividing those voters into districts where they are a majority but not a very big one — 51 percent of the vote wins an election just as much as 80 percent does, so those “extra” voters will do more good for the party elsewhere. And when an area is so dominated by the other party’s voters that there’s no way to win it, gerrymandering entails packing as many of the other party’s voters as possible into that district to reduce their sway elsewhere. Thus votes are “wasted” when they are cast for a losing candidate, and when they are above and beyond what a winning candidate needed to win. The “efficiency gap” measures the partisan disparity in wasted votes — and in Wisconsin there is an efficiency gap that favors Republicans.

That might seem to be the objective standard that the Court has pined for in the past. But the efficiency gap is a deeply partisan model. As Guy Harrison and Jason Torchinsky have explained, it fails to take account of numerous factors, including that Democratic voters tend to cluster in big cities, which necessarily affects how they are spread out (or not) among districts. As a result, the Republican-drawn Wisconsin districts, which have relatively normal-looking and fair boundaries, appear unreasonably partisan through the lens of the efficiency gap, while clearly politicized Democrat-drawn districts look appropriate.

As I said, I suggest you read the whole thing if you want to understand what the article is getting it. But the conclusion is this:

Perhaps the most fascinating aspect of gerrymandering is that by this measure, the widely accepted one, Democrats are probably more at fault than Republicans in the war they say they’re trying to win. Simply put, Democrats stand to gain far more from redrawing districts on weirdly shaped political lines than Republicans do.

Geography factors a great deal into why one party tends to win more congressional elections; as mentioned above, Democratic voters are packed densely into large cities, while Republicans are spread throughout the country more evenly. This “unintentional gerrymandering” leads to a national average bias of five points nationwide for the GOP. So while Gill may make politically motivated redistricting seem like a Republican problem, some of the most dramatic gerrymanders are actually the fault of Democrats, attempting to maximize their power in heavily blue states or hold on to seats when they swing toward the right.

24 Responses to “On SCOTUS and gerrymandering:”

  1. Ken Mitchell Says:

    There IS a way to prevent, or at least minimize, the impact of “Gerrymandering”, which is the practice in which a legislator picks his constituents rather than the other way around.

    Massachusetts governor Elbridge Gerry, in 1812, signed a redistricting law that created some oddly shaped districts that included one shaped somewhat like a salamander; the newspaper branded it a “Gerry-mander”.

    https://en.wikipedia.org/wiki/Elbridge_Gerry

    That would be to adopt a rule requiring a minimum perimeter of the enclosed area. Eliminate the lizardly shapes of most congressional districts and require straight lines or borders following some geographic feature like a river or ridgeline.

  2. David Aitken Says:

    Another way to deal with the issue is to ban voter registration by party. A few states actually do that, but I don’t know which ones.

  3. Pablo Panadero Says:

    It is kind of like what Winston Churchill said about democracy government: “It is the worst form of government, except for all the others.” Yes, gerrymandering is bad, but all solutions are worse.

    So, that being said, I will present my solution (stolen from someone about 10 years ago). When redistricting, divide the legislature in two committees (majority and minority committees). The Majority committee will produce a propoal, which is then submitted to surveying firms who will add up the total perimeter distance of all district borders. Once that number is determined, the Minority committee can submit a plan. If the Minority Committee plan has less perimeter borders, it is automatically enacted into law. If they dont, the other is automatically admitted.

    Since gerrymandering requires crazy looking borders, and knowing that the other side will get an attempt to submit their version, this would keep gerrymandering to the minimum.

  4. Ken Mitchell Says:

    Pablo Panadero Says:
    October 9th, 2017 at 3:34 pm
    “Since gerrymandering requires crazy looking borders, and knowing that the other side will get an attempt to submit their version, this would keep gerrymandering to the minimum.”

    That’s not a bad idea.

  5. Irv Says:

    I’m partial to David Aitken’s method of just stopping voter registrations by party. Almost everyone says that they vote for the best candidate in every election anyway so this would ensure that we all do that.

    Let the parties determine who their voters are by their own means. Let the candidates run by party if they wish but the parties need to establish a way to nominate their party’s candidate without involving the state. State and national primaries should be private affairs paid for by the parties. The state should conduct the election and nothing else.

  6. steve walsh Says:

    I need to read more about this, but agree it seems like a very bad idea for the Supreme Court to get involved in local voting district configuration. Also seems very short-sighted for the Democrats to be pushing this issue.

    Take a look at the MA 4th Congressional District for an example of an odd shaped one.

  7. Michael F Adams Says:

    Texas has No-Party registration, has had for over a century, when the winner of the Democrat primary would be the guaranteed winner in the General. There was a law requiring a primary in a jurisdiction in which a party received a large number of votes. The parties tried to avoid this, of course, because primaries cost a great deal more than conventions. That rule still applies, so we are a two -party states, whether we want to be or not, and, even without registration, the votes cast in the last election for governor indicate the flavor of the area. This makes the no-registration idea a moot point.

    I think Pablo Panadero is onto something, with his two committees approach. I know that Gerrymandering only became important enough for me to notice when I changed from Democrat to Republican, and saw that the Democrats had held onto power for a decade longer than demographics and votes would have suggested.

  8. Paul in Boston Says:

    MA 4th, that’s mine. It was designed to make sure Barney Frank didn’t lose his job to a Republican as would have happened with the old district. A gerrymander in the home of the gerrymander, who would have thought?

  9. junior Says:

    Another way to deal with the issue is to ban voter registration by party. A few states actually do that, but I don’t know which ones.
    —————-

    It wouldn’t really work. Even without voter registration, it’s not hard to look at a given locale and figure out how the residents vote. Did Hillary get the vast majority of votes at the local poling place? Then it’s a heavily majority Democrat area. Did Trump win by a narrow margin? Then you’re probably looking at a neighborhood with a narrow edge the other way. And if you can’t figure it out, then targeted polling can be conducted to figure out which way the local voters lean.

    California enacted (by popular vote) a bill that set up an independent commission that should have drawn up more or less ‘non-gerrymandered’ districts. Unfortunately, it’s an open secret that the state Dems *still* found a way to game the system.

    (I don’t remember the details, but iirc it involved various selective appeals of commission decisions based on seemingly apolitical criteria)

  10. huxley Says:

    My gut feeling has been that gerrymandering is bad, but it’s done by both sides and is part of the general awfulness of politics, and I’m not at all sure I want the federal government to intervene. But that’s just my preliminary reaction.

    neo: That’s my take too.

    I’ve no doubt if Democrats had been racking up local power in recent years, they wouldn’t be complaining about gerrymandering, they would be declaiming it as a vital aspect of republican democracy.

  11. Tim Turner Says:

    Proportional representation. Basically eliminate districts, and divide legislative bodies by percentages instead of geographical boundaries.

    If your party gets 30% of the votes, you get 30% of the seats. As the NR review might put it “this would ensure maximum liquidity of partisanship”. The parties would not support it because t would give a huge boost to 3rd parties and erode the power that organized politics has on elections.

    It’s not hard to draw districts geometrically, as Ken Mitchell says above. There are weaknesses to it: Someone still has to choose where these big shapes go. You also erase the reason those lines are hand drawn: They’re meant to divide people into cultural segments. Two areas may be geographically nearby, but they may have very different people with different voting habits “across the railroad tracks” and the point is that lawmakers can draw the line down those cultural barriers.

    Now on the one hand, the basic idea of a district is everyone in it thinks the same way, so they’re a voting block, and their representatives should be able to legitimately represent all of them, and all politics really is local politics. If your neighborhood really thinks Tulips should be the national flower, your congressman is guaranteed to support it. But by the SCOTUS’s measure, that creates a lot of wasted votes. So if you go to the opposite end of the spectrum, where every district hangs by a thread, you make every district a swing district. There are no wasted votes because every vote could swing the entire district one way or the other. This means that only a massive state-wide campaign can win an election because you have to have the resources to swing dozens of districts. Again, this plays to the two big parties and against local interests.

    In general, I favor abolishing the districts geographically and making them issue-based districts (Where the district isn’t a self-contained political entity, otherwise you lose the whole point of Federalism, which is local people make local laws). This is basically what you do with proportional representation.

  12. FOAF Says:

    Junior beat me to it, I was going to say exactly the same thing. Eliminating party registration would not end gerrymandering because it could still be easily determined how districts vote.

  13. Ymar Sakar Says:

    Americans used to just ethnically cleanse or drive out voters that they didn’t like.

    Kansas Vs Missouri, Missouri Extermination order, all happened before Civil War 1. Secession, was merely another way to get more slave states and/or put pressure on the feds to enforce federal laws that many abolitionist states refused to enforce and thus nullified.

    So if you can’t drive out the groups that vote against the way you want, you start a war over it. If that still doesn’t work, then you do what the Demoncrats do, Jim Crow or Salamander districts.

  14. Ymar Sakar Says:

    The way only way to ensure that the Left can’t game the system is to destroy the system, or keep replacing it every 6 months. 6 months is the lowest limit for when geniuses can figure out how to game a new system.

  15. DNW Says:

    “Missouri Extermination order”

    That must be an event I never heard of. You say this was an act of the Missouri legislature or the governor?

  16. AesopFan Says:

    DNW Says:
    October 10th, 2017 at 11:50 am
    “Missouri Extermination order”

    That must be an event I never heard of. You say this was an act of the Missouri legislature or the governor?
    * * *
    The good news is, it’s been rescinded.

    https://www.deseretnews.com/article/700036138/Former-Missouri-governor-honored-for-rescinding-Mormon-extermination-order.html

    The bad news is, that government-sanctioned murder isn’t over – this is the same thing that is now happening in those events where mayors and governors are essentially enabling Antifa et al. to kill their opponents without legal repercussion.

    This will not end well.

  17. Kenneth Says:

    The courts should stay out, but drawing lines should be given a rule by congress: “Each district may have no more than six *artificial* angles and they must be 90 degrees”. Borders such as rivers and neighboring state lines would not count against the six as they are permanent. This would give them the appearance of the states west of the Mississippi, and strip out some of the more glaringly idiotic districts, some of which run along stretches of interstate highway. Make ’em tall, skinny, or fat, but don’t make them look like a salamander.

  18. DNW Says:

    AesopFan Says:
    October 10th, 2017 at 11:30 pm

    DNW Says:
    October 10th, 2017 at 11:50 am
    “Missouri Extermination order”

    That must be an event I never heard of. You say this was an act of the Missouri legislature or the governor?
    * * *
    The good news is, it’s been rescinded.

    https://www.deseretnews.com/article/700036138/Former-Missouri-governor-honored-for-rescinding-Mormon-extermination-order.html

    The bad news is, that government-sanctioned murder isn’t over – this is the same thing that is now happening in those events where mayors and governors are essentially enabling Antifa et al. to kill their opponents without legal repercussion.

    This will not end well.”

    Thanks, I’ll look it up.

    On reading Yam… whatever’s post, I thought he must have been talking about the border wars and the Missouri paramilitaries, Beecher’s bibles and the New England Emigrant Aid Company, etc,

    http://www.civilwaronthewesternborder.org/encyclopedia/new-england-emigrant-aid-company

  19. DNW Says:

    Well, ok … interesting.

    Here’s something from Brigham Young University about the order … http://eom.byu.edu/index.php/Extermination_Order

    “Author: Whitman, Dale A.

    A military order signed by Missouri Governor Lilburn W. Boggs on October 27, 1838, directed that the Mormons be driven from the state or exterminated (see Missouri Conflict).

    Boggs’s action was based on information brought to him that day by two citizens of Richmond, Missouri, concerning the Mormon-Missourian conflicts in northwest Missouri and on reports of the Battle of Crooked River, in which armed Mormons had clashed with a company of state militia on October 25.

    Boggs, acting in his capacity as commander-in-chief of the Missouri militia, ordered General John B. Clark to March to Ray County with a division of militia to carry out operations against armed Mormons. The order described the Mormons as being in “open and avowed defiance of the laws, and of having made war upon the people of this State.” It stated that “the Mormons must be treated as enemies, and must be exterminated or driven from the State if necessary for the public peace-their outrages are beyond all description.”

    A copy of the order reached General Samuel D. Lucas of the state militia by the time he encamped outside the LDS town of Far West, in Caldwell County, on October 31. Lucas gave a copy to the LDS Colonel George M. Hinkle and other Church representatives, to whom he dictated terms of surrender, and they showed it to Joseph Smith. It was probably a significant factor in the Prophet’s decision to surrender to Lucas.

    It appears it answers part of my earlier question and that it was not an act of the legislature, but rather an 1838 executive order to the militia which was ceremoniously – as it would have been a dead letter long before – revoked in 1976 by Republican Governor Kit Bond.

    Also ..

    https://en.wikipedia.org/wiki/Missouri_Executive_Order_44

  20. AesopFan Says:

    DNW Says:
    October 11th, 2017 at 11:34 am
    http://www.civilwaronthewesternborder.org/encyclopedia/new-england-emigrant-aid-
    * * *
    Thanks for the link – I had never heard of that political ploy. Mormons in Missouri were targeted for being sympathetic to the abolitionist cause, not just for being weird on the religion front.
    Boggs’ statements were over-hyped, much as we see in the Antifa complaints about “hate speech” and the need to drive out conservatives because (insert current “reason” here). The experience of the Latter-day Saints in Missouri and later Illinois were an interesting intersection of the First and Second amendments, the second being required to protect the first.

  21. Ymar Sakar Says:

    Pro slave Demoncrats targeted the pioneers in Kansas as well, ethnically cleansing free soilers. Surprisingly, Missouri was also involved heavily with their pro slave lord raiders.

    The first civil war was never about “State Rights”, unless it was the right of free states to nullify the Federal Fugitive Slave Act.

    They also didn’t stop with Illinois or Missouri. The Utah War of 1857 is an interesting incident, which I found a good primary source on. Elizabeth Kane’s journal and her husband’s stuff.

  22. Ymar Sakar Says:

    the second being required to protect the first.

    Probably why Correia says Utah has armed teacher certification and training.

  23. Ymar Sakar Says:

    This intercession is a bit strange, if I say so myself. I mentioned Missouri’s extermination order, which was by the Governor Boggs, and the Kansas incident was a separate issue. All of it was mostly over slavery though.

    Aesop didn’t know about the Kansas “trick”. It is tied with John Brown’s harper’s Ferry radicalization raid to arm the slaves. John Brown saw what happened to white boy settlers that weren’t armed, when the pro slave lord raiders came in.

    While DNW didn’t know about the anti slave, pro slave, connection with Utah/Missouri/Illinois.

    It’s almost as if Americans weren’t taught a complete history… heh.

  24. Ymar Sakar Says:

    Boggs’ statements were over-hyped

    Heh. Snorts.

    Humans are easy to deceive, after all. Lucifer kun wouldn’t have had to do much to stir up the hearts of men to murder and harden it to coldness. Pharoah had the magicians that could perform miracles on par with Moses. The power of gods vs a god.

    The exceptionally brave Americans had the power of the Satan alliance and coalition, with slavery on their side, creating Slavery 2.0 for humanity. Got to put the ningen in their shackles…

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