Sociological Gobbledygook – Empirically Ending Gerrymandering

“[The] whole point is you’re taking these issues away from democracy and you're throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.”

U.S. Supreme Court Chief Justice and Harvard Law School Magna Cum Laude grad John Roberts, in the fall of 2017, describing computer-driven demographic analytics applied to determining gerrymandering and provide unbiased reconfiguration

In a modern era, particularly using artificial intelligence and objective data generated over decades, through voting records, Census information and other governmental “objective” demographic analysis, it is beyond doubt that computer-driven reviews of voting districts can very accurately determine whether voting districts have been artificially-drawn to favor political affiliation while denying a large number (often even a majority) of voters their objectively proportional vote. Gerrymandering. The Democrats were masters of that distortion in the post-Civil War Reconstruction era, and Republicans became the masters beginning in the late 20^th century until the present.

We already have a political system that disproportionately empowers rural regions over heavily urbanized states: the Senate, where a state with almost 40 million residents or a state with 600 thousand will each have two U.S. Senators.  We also know that the alignment of voting districts leaks into the composition of our Electoral College system of electing a president. Add the unleashing of spending limits allowed so-called SuperPac by the 2010 Supreme Court Citizen’s United decision, and ordinary voters’ power was significantly if not permanently eroded in favor of the mega-rich able to fund such campaign efforts.

This combination of organic bias in our political system, combined with voter district distortion (gerrymandering) and voter suppression of minority voters (mostly in red states) have let the prestigious British periodical, The Economist, to label the United States a “flawed democracy,” as not being fully representative of its constituency. But without all of this voter distortion, the GOP would be seriously impaired, particularly when it came to national elections. The result is that a GOP-leaning supporter casts the voting equivalent of 1.8 times an average Democratic vote. 

Thus, without that manipulation, Republicans would not, as they do now, control 27 gubernatorial and 30 state legislatures plus the U.S. Senate and the Presidency, despite the fact that Donald Trump lost the popular vote in 2016 by almost 3 million votes. By 2040, 16 states will hold an estimated 70% of the U.S. population, which states will control less than one-third of the U.S. Senate. The Supreme Court could end substantial aspects of this distortion, but their recent conservative decisions seem to moving the court in the opposite direction.

In the 2013 Shelby County vs Holder, the Supreme Court effectively eviscerated federal supervision (under the amended Voting Rights Act of 1965) of states that routinely practiced statutory voter discrimination, mostly against minority voters likely to cast the ballots of Democrats. Given Chief Justice John Roberts’ claim of undereducated ignorance (really?) above, it seems reasonable to expect that the court, facing two gerrymandering cases (by Republicans in North Carolina and Democrats in Maryland), is likely to let stand the pernicious practice of voting district distortion simply to maintain incumbent control.

The available analytic systems apply algorithms based on the above-noted data, and measure physical distances within the district (“spatial analysis”), how those distances are populated with party affiliation, how the overall voting in the region is reflected in the actual districting (the “efficiency gap”), etc. There many such mathematical structures, all reasonably equal in accurate analysis, systems that are routinely and generally supported by academics the world over.

Except in the case of blatant racial discrimination, the courts have generally eschewed tackling the issue of political gerrymander to favor incumbents. John Roberts’ quote is very indicative of this tradition. The Constitution relegates the creation of voting districts to the states, but the question of whether they can distort the one person, one vote system may have other constitutional limitations. 

The argument is that courts are not configured to manage the task. A few states have forced voter initiatives to set neutral districting bodies, usually challenged by the incumbent party in court, but most states still relegate districting to elected legislatures, which usually draw lines sympathetic to their party. But technology has now rendered the courts’ claims of inability to manage districting challenges moot. Special masters, a common legal practice, could certainly engage one or more of these analytic processes and bring their substantiated conclusion to the court for final ratification. Easy. Accurate. Relevant. American democracy is at stake.

But even in the unlikely event that the Supreme Court does the right thing and tackles unrepresentative gerrymandering to favor incumbents, don’t expect red states to alter their practices based on such a decision. They will probably hold the decisions to be limited to the states directly involved in the litigation, forcing further litigation, state by discriminatory state, to apply the underlying principles to their own gerrymandered distortions.

“Both parties are guilty of gerrymandering, but Republicans have made it an art form. In fact, the GOP has proved that, as long as it controls statehouses, it will be hell-bent on preserving and advancing its agenda through redistricting and other moves, no matter the cost. Republican statehouses have tried to impeach judges who challenged their gerrymandered maps , stripped power from newly elected Democratic governors , overturned voter-approved ballot initiatives , passed voter-suppression laws tightening their grip on the electorate, and of course, manipulated district lines to the point that they held on to more than a dozen gerrymandered seats in Congress even during the biggest Democratic wave since Watergate.

“Republican tactics aren’t suddenly going to change should the court strike down the maps in Maryland (Benisek vs. Lemone) or North Carolina (Rucho vs. Common Cause), or establish a new legal standard for partisan gerrymandering. Anyone who thinks that Republicans will go quietly into the night needs a dose of reality. If voters allow the GOP to remain in control of state legislatures after the 2020 election, the party will gerrymander Congress and rig our democracy all over again.

“Should this happen, more legal challenges will inevitably ensue as GOP-controlled states are forced to once again defend new maps in court. However, these legal battles will take years — just like it did for the latest gerrymandered maps to reach the Supreme Court. In that time, Republicans will continue to have a built-in gerrymandered advantage of seats in congressional and state elections, empowering them to obstruct progress at a profoundly consequential moment for our country.

“Need more proof of Republican willingness to go around the Supreme Court to get their way? Look no further than what’s happened to women’s reproductive rights since Roe vs. Wade. After the court ruled in Roe in 1973 that women had a constitutional right to an abortion, Republican-controlled state governments immediately began challenging the ruling with an onslaught of new laws limiting a woman’s right to make her own healthcare decisions. Those unconstitutional and restrictive laws were not overturned until 1992, nearly two decades later. And now, we are watching firsthand as Republican-controlled state governments in Alabama, Georgia, Ohio and elsewhere take the lead on challenging the very foundations of Roe with egregious abortion bans. There are zero reasons to assume the GOP won’t use its control of state governments to challenge a new Supreme Court precedent on partisan gerrymandering with new gerrymandered maps in 2021 as well.

“The Republican Party’s leaders know that the future of the congressional map doesn’t lie with the Supreme Court, and they’re not hiding it. That’s why the national Republican State Leadership Committee has spent nearly $100 million over the last decade solidifying the GOP’s grip on state elections via its ‘Redmap’ program, a strategy to dominate the redistricting process. Even in 2018, a banner election year for Democrats in Congress, Republican fundraising outpaced Democrats in state elections. In Florida, the preeminent battleground state that historically has had some of the nation’s most extreme maps, Republicans outraised Democrats by more than 5-to-1 in the average statehouse race. Yet Democrats at the top of the ticket shattered fundraising records.” Vicky Hausman, writing for the June 7^th Los Angeles Times.

Yup, Republicans clearly aren’t hiding their efforts, just claiming that there is nothing the courts can do about it. “[In] the 2010 midterm election, the GOP won full control in states including North Carolina, Pennsylvania, Ohio, Michigan and Wisconsin, and Republicans drew election maps so that their party would typically win a lopsided majority of the seats… Those gerrymanders helped the Republicans protect their majority in the House of Representatives until the Democratic wave in 2018, and kept them in control of all five of the state legislatures even though Democrats won more votes in those states… Citing the partisan tilt, judges recently struck down the district maps in each of those states on the grounds that Democratic voters were denied the right to a fair and equal vote.

“The Supreme Court, however, has never struck down a partisan gerrymander. The justices sounded closely split in March when they heard an appeal from North Carolina’s Republican leaders, who freely admitted they drew the districts for a ‘partisan advantage,’ aiming to ensure Republicans would win 10 of the state’s 13 congressional seats. 

“The census dispute also has become intensely partisan. Citing the climate of fear in immigrant communities, demographers and political scientists testified in lower-court proceedings that millions of people will refuse to answer if the census includes a citizenship question. That would lead to a significant undercount of the population in states like California that have large immigrant populations — areas that also typically tilt in favor of Democrats. Federal judges in New York, San Francisco and Baltimore have ruled against the added question.

“Last week [first week in June], lawyers who sued over the census plan raised a second concern. They said a 2020 census with detailed data on citizens would permit states to divide their election districts based on the number of eligible voters, not the total population. This ‘would be advantageous to Republicans and non-Hispanic whites’ and ‘would clearly be a disadvantage for Democrats,’ Republican strategist Tom Hofeller wrote in 2015.” David Savage writing for the June 8^th Los Angeles Times. 

Unless the court addresses this fundamental distortion, they will simply add one more giant nail to a coffin that may someday soon hold the end of the United States as we know it.

              I’m Peter Dekom, and if you truly care, scream, yell and vote!