The Pernicious Effects of Gerrymandering

If the Supreme Court decides to stop letting voters take control of the redistricting process away from partisan legislators, polarization can only get worse.

National Journal
Norm Ornstein
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Norm Ornstein
Dec. 3, 2014, 4:34 p.m.

Al­most in­vari­ably, whenev­er I speak about our po­lar­ized polit­ics, the first or second ques­tion I get is about re­dis­trict­ing. Most Amer­ic­ans who know that our polit­ic­al sys­tem is not work­ing the way it is sup­posed to don’t know what spe­cific­ally is wrong. But ger­ry­man­der­ing is something that clearly stands out for many. That is true even for Bill Clin­ton, who spoke about po­lar­iz­a­tion and dys­func­tion at the 2013 Clin­ton Glob­al Ini­ti­at­ive and singled out ger­ry­man­der­ing as a prime cause.

The real­ity, as re­search has shown, is that the prob­lem is more com­plic­ated than that. The “big sort,” in journ­al­ist Bill Bish­op’s term, where Amer­ic­ans in­creas­ingly con­cen­trate in areas where they are sur­roun­ded by like-minded people, is a ma­jor factor in the skew­ing, and the ho­mo­gen­eity, of dis­tricts. Oth­er par­tis­an res­id­en­tial pat­terns, in­clud­ing the fact that Demo­crats tend to live in more high-dens­ity urb­an areas, while Re­pub­lic­ans tend to cluster in sub­urb­an and rur­al en­claves, mat­ter. And the Sen­ate, which rep­res­ents states, not dis­tricts, is al­most as po­lar­ized as the House. (In­deed, ac­cord­ing to the Na­tion­al Journ­al vot­ing re­cords for the last Con­gress, it is more po­lar­ized—there was no over­lap between the parties, mean­ing that the most con­ser­vat­ive Demo­crat­ic sen­at­or was to the left of the most lib­er­al Re­pub­lic­an sen­at­or.) Sen­ate primar­ies, just like House ones, skew heav­ily to­ward each party’s base, and sen­at­ors re­spond. And the per­man­ent cam­paign pushes law­makers to stick with their team, even if some of the team’s votes go against an in­di­vidu­al mem­ber’s more mod­er­ate or bi­par­tis­an grain.

But ac­know­ledging all of that is not to say that ger­ry­mandered dis­tricts don’t have a sig­ni­fic­ant im­pact on the sorry state of Amer­ic­an polit­ics. Ger­ry­man­der­ing has leached much of the broad­er het­ero­gen­eity out of con­gres­sion­al dis­tricts, con­trib­ut­ing to the echo-cham­ber ef­fect, where mem­bers’ ideo­lo­gic­al pre­dilec­tions are re­in­forced, and not chal­lenged, back home. A co­rol­lary is the ra­cial se­greg­a­tion of dis­tricts—the fact that so many Re­pub­lic­an dis­tricts now have barely more than trace ele­ments of minor­it­ies, giv­ing GOP law­makers little in­cent­ive to reach out or be sens­it­ive to is­sues that res­on­ate with those groups. Par­tis­an ger­ry­man­der­ing skews res­ults away from the broad­er sen­ti­ments of voters in a state, as much re­search, in­clud­ing a new study by Duke Uni­versity’s Jonath­an Mat­tingly and Christy Vaughn, demon­strates power­fully.

And, of course, ger­ry­man­der­ing has helped cre­ate a huge num­ber of dis­tricts that are fun­da­ment­ally safe for one party. This is some­times done by a dom­in­ant party in a state “pack­ing” the oth­er party’s dis­tricts to lim­it its chances in oth­er dis­tricts. Oth­er times it is done by an un­holy al­li­ance of both parties to keep all in­cum­bents safe. Ger­ry­man­der­ing adds both to the ho­mo­gen­eity of dis­tricts and to mak­ing low-turnout primar­ies dom­in­ated by ideo­lo­gic­al act­iv­ists the only mean­ing­ful elec­tions.

More broadly, ger­ry­man­der­ing moves House and state le­gis­lat­ive elec­tions away from any mean­ing­ful re­spons­ive­ness to the will of the people. And the pat­tern of law­makers choos­ing their voters in­stead of voters choos­ing their law­makers cre­ates more dis­af­fec­tion and cyn­icism among the pub­lic.

Al­most every oth­er demo­cracy of sig­ni­fic­ance avoids such prob­lems by cre­at­ing non­par­tis­an bod­ies to draw dis­trict bound­ar­ies.

How do we re­form the re­dis­trict­ing pro­cess in this coun­try? Through in­de­pend­ent com­mis­sions that can use mul­tiple cri­ter­ia—not just equal pop­u­la­tion in dis­tricts, but factors such as com­pet­it­ive­ness, com­pact­ness, and com­munit­ies of in­terest—to cre­ate dis­tricts that more closely re­flect broad­er pub­lic views. But cre­at­ing in­de­pend­ent com­mis­sions is no easy task; do­ing so through le­gis­lat­ive ac­tion re­quires buy-in from the same law­makers who draw the dis­trict lines—and who have the least in­cent­ive to give up their power via re­form.

With the ex­cep­tion of Iowa, where the state Le­gis­lature turned the draw­ing of lines over to a non­par­tis­an agency in 1981 after dis­putes and dead­locks handed the power to the Iowa Su­preme Court, the one out­let for change has been us­ing the ini­ti­at­ive pro­cess to im­ple­ment such com­mis­sions. That pro­cess worked in Ari­zona in 2000 and in Cali­for­nia in 2008, and while the res­ults are no pan­acea, the re­forms have brought more com­pet­it­ive­ness and more fair­ness to the pro­cess.

Guess what? The abil­ity of voters to take con­trol of the re­dis­trict­ing pro­cess away from par­tis­an le­gis­lat­ors and cre­ate a non­par­tis­an and in­de­pend­ent pro­cess may dis­ap­pear next year. The Su­preme Court has taken up a case, Ari­zona State Le­gis­lature v. Ari­zona In­de­pend­ent Re­dis­trict­ing Com­mis­sion, chal­len­ging the con­sti­tu­tion­al­ity of the com­mis­sion. If the Court strikes down the Ari­zona com­mis­sion, it will also mean the end of the Cali­for­nia com­mis­sion, and of any fu­ture ef­forts to by­pass self-in­ter­ested le­gis­latures to re­form the re­dis­trict­ing pro­cess.

The main is­sue here is the mean­ing of the elec­tions clause of the U.S. Con­sti­tu­tion, which states, “The Times, Places and Man­ner of hold­ing Elec­tions for Sen­at­ors and Rep­res­ent­at­ives, shall be pre­scribed in each State by the Le­gis­lature there­of.” In pre­vi­ous lit­ig­a­tion in­volving Elect­or­al Col­lege re­form, as leg­al schol­ar Rick Hasen has ana­lyzed in an art­icle for the Hast­ings Con­sti­tu­tion­al Law Quarterly, courts have defined “le­gis­lature” to in­clude law­mak­ing ac­tions taken by state voters via ini­ti­at­ive—in a fash­ion that Hasen saw as settled law. But it is no longer settled. The fact that the Su­preme Court de­cided to take this case—in­stead of leav­ing in place a fed­er­al Dis­trict Court de­cision that the Ari­zona state con­sti­tu­tion al­lows voters, by ini­ti­at­ive, to ex­er­cise le­gis­lat­ive powers—opens up the is­sue again.

The Ari­zona case is not just a dry ques­tion of the mean­ing of a clause in the Con­sti­tu­tion. It was brought un­der par­tis­an aus­pices. The com­mis­sion’s post-2010 re­dis­trict­ing ef­fort ticked off Re­pub­lic­ans, who say it was biased in fa­vor of Demo­crats. The com­mis­sion has five mem­bers; two each are chosen by Re­pub­lic­an and Demo­crat­ic law­makers, with the fifth mem­ber chosen by the oth­er four. On the most re­cent map, one Re­pub­lic­an mem­ber ab­stained, and one voted no. The law­suit was not the first at­tempt by Re­pub­lic­ans to tilt the com­mis­sion in its fa­vor. In 2011, the Le­gis­lature voted to re­move the com­mis­sion’s chair and tried to re­move the two Demo­crats; the ef­fort to oust the chair was re­buffed by the Ari­zona Su­preme Court. This law­suit fol­lowed.

There is a second is­sue in the law­suit: wheth­er the Ari­zona Le­gis­lature has stand­ing to bring such a suit. Of course, the case could be rendered moot if the Su­preme Court denies stand­ing. But the great­er like­li­hood is that the Court will grant stand­ing and move on to the broad­er is­sue.

If the Su­preme Court throws out these re­dis­trict­ing com­mis­sions, we can kiss good-bye any ef­forts to ef­fect­ively change the re­dis­trict­ing pro­cess, to re­duce the per­ni­cious ef­fects of ger­ry­man­der­ing. It would take away one of the few weapons avail­able to those who want to find ways to cre­ate more-rep­res­ent­at­ive and less-po­lar­ized rep­res­ent­a­tion in our demo­cracy, and to re­duce the cyn­icism about a sys­tem now tilted against the Amer­ic­an elect­or­ate, broadly defined. We are strug­gling to find av­en­ues to ameli­or­ate the worst ef­fects of our tri­bal­ized polit­ics. What a shame if the Su­preme Court shuts off one of the ma­jor av­en­ues.

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