Saturday, March 11, 2017
Fake Voting Districts
Our courts have been loath to step into the congressional redistricting process, particularly where such legal efforts might require the courts, directly or through the appointment of qualified “special masters,” to redraw new the lines themselves. Every decade, the U.S. Census provides new data that determines how many representatives each state gets to elect to the House of Representatives and is supposed form the basis for how the actual boundaries of the relevant voting districts are actually created.
But the prerogatives of drawing districts have long been viewed as accorded to solely to the party in power in the relevant state legislatures. After all, the Constitution specifically provides “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.” Post-Civil War Democrats shamefully controlled the South with how they defined voting configurations, just as Republicans in recent years have distorted voting districts to suit their needs.
The acceptance of this long-standing political manipulation, repeatedly evident with recent presidential elections where the popular vote was usurped by the Electoral College (which is based on those districts), was first labeled “Gerrymandering” in an 1812 Massachusetts election. A political cartoon (above) noted that the artificially-drawn district, favoring incumbent Governor Elbridge Gerry and his anti-Federalist cronies, looked a lot like a salamander.
Simply put, even if they found deeply unjust irregularities, courts felt that they were not well-suited to redrawing districts. But a series of recent political events seem to have tilted courts toward re-examining that proclivity to avoid redistricting. First, the Supreme Court (in Shelby County vs. Holder, 2013) revoked as stale, and in need of Congressional updating, the most important provisions of the Voting Rights Act of 1965.
The now-liberated impacted legislatures went crazy reenacting the litany of voting requirements, craftily (they believed) revised to pass constitutional muster, that the statute had originally intended to remove. Brazen legislators were less-than-subtle in their stated intentions to make sure that the majority control in those target states… and in the majority of states across the land… would remain Republican regardless of demographic reconfigurations that the 2020 Census is likely to confirm. These conservative legislators quivered with excitement as they moved polling stations far from minority communities, were screaming “massive voter fraud” to justify their minority-voter-crushing voter ID laws… despite zero evidence of such widespread fraud… and hugging their gerrymandered, liberal-marginalizing, districts with love and passion.
They were so obvious in their goals and intentions, almost scoffing at the impotence of the judiciary to stop them, that the courts were beginning to take a closer look. The first shoe dropped as conservative state legislators railed against popular state initiatives that appointed non-partisan commissions to determine voting districts. They cited the above constitutional quote as meaning only they, the legislators, could make such voting district determinations, not these voter-determined special commissions. In 2015, the Supreme Court (Arizona State Legislature v. Arizona Independent Redistricting Commission) held that such commissions were the functional equivalent of legislatures, allowing these bodies to take over the redistricting process where voted in.
Then the next shoe fell. In December, the Supreme Court surprised the legal community by actually accepting two cases, in each of North Carolina and Virginia (the Virginia decision is discussed below), where their legislatures were accused of packing racial minorities into distorted voting districts to marginalize their impact while making sure that the majority of districts were clearly dominated by conservative white traditionalists. The court clearly evidenced concern over racial criteria and marginalization, particularly when the basis for the redistricting seemed to be determined with mathematical precision targeting racial minorities.
On March 1st, in Bethune-Hill v. Virginia State Board of Elections, the Supreme Court reviewed the Virginia case involving 12 districts where voting districts were configured specifically to contain black voters. With a 6 judge majority, the court passed the buck back to the trial court to apply this slightly modified definition of unlawful gerrymandering: “The racial predominance inquiry concerns the actual considerations that provided the essential basis for the lines drawn,” Justice Anthony M. Kennedy wrote for the majority, “not post hoc justifications the legislature in theory could have used but in reality did not.”
“In assessing those challenges, Justice Kennedy wrote, the trial court identified ‘no fewer than 11 race neutral redistricting factors.’ He called that kind of analysis too malleable…. ‘By deploying those factors in various combinations and permutations, a state could construct a plethora of potential maps that look consistent with traditional, race-neutral principles,’ Justice Kennedy wrote. ‘But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.’” New York Times, March 1st. You just cannot construct districts specifically to disenfranchise racial minorities. You can smell how little the court wanted to make its decision too specific. A little guidance? Enough? We’ll see.
But could the reluctance of courts’ intervention in the redistricting process shift if there were a more objective way for such reconfiguration to occur? What if there were a computer analysis that could equalize the process? Writing for the February 22nd The Chronicle of Higher Education,
Changes to voting rules that used to be considered by courts before they could be implemented,’ Ms. Duchin says, ‘are now implemented first and the courts consider them after the fact.’ Because of the increase in cases challenging new electoral maps, she says, there’s a need for expert witnesses who understand the mathematical concepts applicable to gerrymandering.
“To meet that need, she’s spearheaded the creation of a five-day summer program at Tufts that aims to train mathematicians to do just that. The first three days of the program will be open to the public and available online, with lessons that put redistricting in legal, historical, civil-rights, and mathematical contexts. Attendees of the program’s final two days will participate in one of three specialized tracks on giving expert testimony, teaching, and working with geographic-information systems…
“[Duchin states:] In redistricting, one of the principles that’s taken seriously by courts is that districts should be compact. The U.S. Constitution does not say that, but many state constitutions do, and it’s taken as a kind of general principle of how districts ought to look… What courts have been looking for is one definition of compactness that they can understand, that we can compute, and that they can use as a kind of go-to standard. I don’t have any illusions that we’re going to settle that debate forever, but I think we can make a contribution to the debate…
”I do think we’re taking a new approach. There are scores — one of them is called the Polsby-Popper score; that’s the area of a district compared to the area of a circle of the same perimeter, given as a percentage. Certainly courts have heard about Polsby-Popper scores. It’s just that no court has ever found that that alone is a persuasive way to rule out a bad district.
“In geometric group theory, I work on what’s called metric geometry and within that, I already had a series of papers that were about essentially the average distances between points in various kinds of shapes. That’s actually directly applicable to compactness. It turns out that if you take a district and you look at the average distances between all of its points, then the bigger that is, the less compact, once you normalize by the diameter. That meant that I already had published theorems that, I think, cast some light on the districting problem.” The Chronicle.
God knows our country is severely polarized with each faction trying to figure out how to marginalize its opposition. But a democracy cannot function where the goal of incumbents is to make sure that they cannot be usurped even as their constituency falls into a rather rapidly shrinking minority vote. If this country is going to right this ship, that effort has to begin with making sure that our elections are fair. That the United States has fallen into the “flawed democracy” category by the prestigious U.K. publication, The Economist, is most certainly not a good sign.
I’m Peter Dekom, and we have the means to objectify our voting districts as never before; if we fail to fix those anomalies, we just might lose our entire nation in the process.