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Extreme Partisan Gerrymandering is Undermining America's Representative Democracy

Political gerrymandering is the process used by state legislatures to provide an advantage to a political party in state and federal elections by creating voting districts favorable to their candidates. It is, by definition, a vehicle to make our democratic system less representative of the people's will.

Every ten years, after the census, the states redraw voting districts and the process is controlled by the party with the majority in the state legislature at that time. More progressive states have developed nonpartisan commissions to create the districts, but the majority of states still allow the party in power to draw the boundaries based on purely political considerations.

Gerrymandering has roots almost as old as the nation. Massachusetts Governor Elbridge Gerry backed a redistricting plan in 1812 favoring his party, the Democrat-Republicans. One district was shaped like a salamander so the press combined Gerry’s name with salamander. to coin the term "gerrymandering."

Since Gerry's time, both political parties have used the process to help their candidates win elections and in the computer age they have gotten very good at it, ensuring a partisan advantage in some states that defies the will of the majority of the state's voters. Today, politicians can use sophisticated mapping technology, voter registration, and voting frequency records to select who they want in or out of any voting district. The process has advanced to the point where elections in some districts are foregone conclusions before a single vote is cast. This is often called "extreme political gerrymandering" and it has become the norm in many states.

The whole idea of partisan gerrymandering is to disenfranchise voters of the opposing party.

The Center for American Progress published research in 2019 that showed that unfairly drawn congressional districts shifted an average of 59 seats in the House of Representatives during the 2012, 2014, and 2016 elections. In other words, gerrymandering in various states led to the election of 59 politicians that would not have been elected based on statewide voter support for their party. That represents almost 14% of the total number of House seats which probably changed control of that chamber after several of those election cycles.

In their report, the Center for American Progress uses Michigan as a case study for how gerrymandering can undermine the democratic process.

Center For American Progress: "From 2012 to 2016, the people of Michigan cast more than 50 percent of their ballots for Democratic Party legislative candidates. They voted for Democrats 52 percent of the time for the Michigan House of Representatives; a little more than 50 percent of the time for the Michigan Senate; and 51 percent of the time for the U.S. House of Representatives. So one would expect that slightly more than half of Michigan elected officials during this time were Democrats."
"Instead, Republicans held a decisive advantage at every level of government. Despite earning a majority of the vote, Democrats received only 44 percent of seats in the Michigan House of Representatives; 31 percent of the seats in the Michigan Senate; and 35 percent of the seats in Michigan’s delegation to the U.S. House of Representatives. Although this degree of misalignment is severe, it is not unusual."

A similar study by the Associated Press found that in 2016 gerrymandering gave Republicans “as many as 22 additional seats” more than they would have won if House districts would have been drawn fairly.

The nonpartisan Committee for Economic Development of The Conference Board [CED] published an informative piece in 2018 that provides many more details on how partisan gerrymandering corrupts America's Congressional elections. They concluded that because of gerrymandering, 75% of the federal voting districts in America are no longer competitive, and that it increases political polarization in Congress and state legislatures.

CED: "By encouraging the creation of uncompetitive districts or districts with a clear partisan advantage, partisan redistricting exacerbates the problem of polarization in Congress and state legislatures. While redistricting is not a major cause of the ideological polarization and partisan conflict that plagues our political system, it exacerbates the problem by producing districts that are more partisan and homogeneous, thus exposing representatives to fewer dissenting voices or fewer disparate groups of constituents. In such instances, district characteristics can serve to reinforce members’ ideological predispositions and encourage them to appeal to their ideological bases of voter support, rather than pursue more centrist or moderate approaches."

At this point in history, gerrymandering tends to benefit Republicans over Democrats because of the makeup of state legislatures, but both parties will again employ the tactic this year to create new voting districts based on the recently completed census. For a variety of reasons, it's time to end the protect the public's faith in US elections. It is, as former President Ronald Reagan said, a "national scandal."

That's all we're asking for: an end to the antidemocratic and un-American practice of gerrymandering congressional districts . . . The fact is gerrymandering has become a national scandal.” – President Ronald Reagan (R)

Former President Barack Obama agreed with Reagan on this point.

We've got to end the practice of drawing our congressional districts so that politicians can pick their voters, and not the other way around. Let a bipartisan group do it.” President Barack Obama (D)

There are two ways to end the extreme partisan gerrymandering of federal election districts.

First, the US Supreme Court could end the practice by finding that it violates various provisions of the Constitution. The Court had that opportunity in 2019 in the case of Rucho v. Common Cause, but elected to pass. Chief Justice John Roberts, speaking for the Court's five conservative justices reasoned that the make-up of congressional voting districts was a political question that the Court could not intervene in even after admitting that, “Excessive partisanship in districting leads to results that reasonably seem unjust.”

Roberts: “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Roberts wrote. “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”

Roberts' argument boils down to two points; he can't find Constitutional authority to end the practice and, even if he did, he doesn't know how he would define partisan gerrymandering that violates the Constitution. His arguments are not entirely convincing, as Harvard professor Charles Fried, Ronald Reagan's solicitor general, pointed out in an article titled A Day of Sorrow for American Democracy. It's not difficult to recognize extreme partisan gerrymandering, the court already makes such determinations for unconstitutional racial gerrymandering, and it violates both the First Amendment and the Equal Protection Clause of the 14th Amendment. Moreover, as Justice Elena Kagan points out in her powerful dissent, the practice undermines the very foundation of representative democracy.

Kagan: "Of all times to abandon the court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections."
"If there is a single idea that made our nation (and that our nation commended to the world), it is this one: the people are sovereign. The “power,” James Madison wrote, “is in the people over the Government, and not in the Government over the people....

Justice Kagan and other legal scholars have pointed out that you don't have to go leafing through the Constitution to find a basis for banning extreme partisan gerrymandering; it corrupts the very bedrock of our republic. If politicians can transform elections into meaningless exercises in futility, what is the value of our right to vote?

Congressional action is needed quickly to head off another round of partisan redistricting.

With the Roberts Court unwilling to act, there is another way to end extreme partisan gerrymandering in US House districts. Congress has the authority under the Constitution to end the practice by mandating the creation of independent redistricting commissions to create the federal voting districts in each state.

Mansueto Institute, U. of Chicago: "The Constitution gives Congress ultimate power over the “Times, Places, and Manner” of the elections of its members. The founders debated this power at length and granted it deliberately. Madison argued that it was needed to produce “uniformity” of elections between states, and to rein in abuses by state legislatures, since it was “impossible to foresee all the abuses that might be made of the discretionary power.” The gerrymandering we see today is exactly such an abuse."

And it's one of the provisions in the voting rights legislation known as the "For the People Act" that Democrats passed in the House of Representatives and Republicans filibustered in the Senate recently. Districts would be drawn by an "equal numbers of Republican, Democratic, and unaffiliated and third party commissioners, with voting rules that ensure that no one group would be able to dominate or hijack the redistricting process."

Brennan Center: "The For the People Act transforms what has historically been an opaque process into one that is transparent and participatory. The business of mapdrawing would be conducted in open public meetings and subject to oversight. Data would be made available and all official communications would be subject to disclosure. Community groups and everyday citizens would get a say a chance to review and comment on proposed maps and submit their own alternatives. States would be required to show their work and issue a detailed report before taking a final vote on a plan. In short, redistricting would no longer be done through backroom deals."

2021 Redistricting

Redistricting is on hold because of delays in completing the census, but the states should have the data they need to begin by September. If the US Senate is unwilling to pass the "For the People Act," the process of gerrymandering districts this Fall is expected to be the most intense ever because of the growing partisan divide in America. It will also be the most technologically sophisticated.

Dr. Chris Warshaw, an Associate Professor of Political Science at George Washington University. who recently completed a study of extreme partisan gerrymandering in the 2010 redistricting process, sees more of the same or worse this year.

WTHR: “I would expect when one party controls the government, if there isn't massive public pressure against it, I think the gerrymanders will be even more aggressive than they were in 2010,” Warshaw said. “Indiana's already pretty aggressive, so I don't know how much more aggressive it could get. But I would expect it'll be even more biased in favor of Republicans after this next redistricting unless there is really strong public pressure to draw more fair maps.”

And, Dr. Sheila Kennedy, a law professor at O’Neill School of Public & Environmental Affairs at IUPUI argues that Indiana's extreme gerrymander is one of the reasons that the state is in the bottom 10 for voter turnout over the past decade.

WTHR: “[Gerrymandering] creates voter apathy. Voter apathy isn't just well, I don't care what happens in my country. It's the result of saying, 'No matter what I do and in the voting booth - is it going to make a difference?'”

Later this year, across the nation, state legislators will be trying to accomplish exactly that outcome; make individuals of the opposing party feel that their votes will make absolutely no difference in the outcome of the next election. They want to ensure that elections are merely a formality in many districts. They seek to take away your voice. Don't let them.

#politics #research #law

By: Don Lam & Curated Content

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