Beware the Gerrymandering Con Artists and Alchemists

06/20/2017 09:05 am ET

Yesterday (19 June 2017), the Supreme Court agreed to hear the latest partisan gerrymandering case, Gill v. Whitford which comes to us from Wisconsin. Already, opinion and editorial pages are resonating with references to the undermining of democracy when representatives pick their voters instead of the other way around.

There is no doubting that sentiment. Something is fundamentally wrong with a system that lets elected representatives choose and condition the means by which they are elected to office. There is a whopping conflict of interest there.

Of course, a simple solution would be to require (somehow) that redistricting be done by commission. This would, at least, sever the connection that creates the conflict of interest. But, critics, say, this is not enough because a commission can still produce an unfair electoral map. So how do we resolve this? Seek the certainty of a formula.

Much like the alchemist’s myth that one could turn any element into gold, there is a myth that one can determine whether an electoral system is fair by comparing the percentage of seats a party controls in the legislature and the percentage of votes a party’s candidates received across all electoral districts. To the extent there is a deviation, someone will cry “gerrymander.”

This is at best inaccurate and at worst, fraudulent. But a lot of incumbent legislators, lawyers and political consultants benefit from this system. So, it’s not about to go anywhere.

Seats-votes measures and their more or less complicated kin propagate the patently false notion that votes for Democrats or Republicans in one district are the same as votes for either party’s candidates in another. We—elected officials, political scientists, economists, etc.—all know that this is absolutely false.

Long ago American voters were wedded to particular parties. Then, a critical election would take place (such as the one that ushered the New Deal into office), voters would shift their allegiance, and start voting loyally for another party. This all changed in the 1960s thanks to the impact of the Vietnam War, the Voting Rights Act and the widespread adoption of the direct primary. Americans started voting for candidates and issues. They put some thought into what they were doing instead of mindlessly walking into the polling booth and pulling the same party lever that their parents and grandparents once pulled.

So, when candidates or issues change, so does our voting behavior. We have happily been a nation of ticket-splitters for some time. As the rifts between the Sanders and Clinton wings of the Democrats and the manifold divisions in the Republican Party indicate, party labels are convenient, but empty, shorthand references. Voters vote for candidates, not parties.

Thus, it is inaccurate to claim that partisanship, like race, is immutable and that all one needs to do is count the number of Democratic or Republican votes, determine their location, and reshuffle them to make districts more competitive. This won’t happen because, when you move voters, many of them change their voting patterns.

Thus, the threat to democracy is not just that legislators control the redistricting process. That can be resolved by a commission. The real threat is the draining of countless tax dollars and hours into endless litigation that keeps many lawyers and consultants employed, but never seems to generate a better voting system. If the Supreme Court accepts the myth that gerrymandering can be resolved with a formula, it will do even more harm to the political system than any map with strange district borders ever has.

If we want to fix the electoral system to make it more responsive, more competitive and less expensive, we could make several simple changes. First, let commissions do the redistricting.

Second, even if we do not use commissions, we could remove the incentive to manipulate district lines by making legislative terms longer. The overwhelming majority of state legislators and the Congress are elected for two year terms. Between primaries and the general election, legislators spend most of their time campaigning instead of legislating. They are, literally “running scared,” as Anthony King said in The Atlantic in 1997. If elected officials could spend more time legislating and creating a track record to run on, they would be less concerned about having to defend themselves from primary and general election challenges.

Finally, get rid of the single-member district. Mountains of political science research demonstrate that it discriminates in favor of a two party system and unbeatable incumbents. Justice Thomas suggested as much in Holder v. Hall, but to no avail. Multimember districts are not uncommon in U.S. electoral history. They minimize the threat of gerrymandering, increase competition and give voters more choices.

Sadly, you can bet that few of these changes are about to happen. As I argued in The Hill here, legislators might be enticed into lengthening their terms. But, don’t hold your breath about commissions or multimember districts. Elected officials, lawyers and consultants have no incentive to make these changes.

We can hope, at least, that the Supreme Court does not fall for the new alchemy. If it does buy the new alchemy, little will change. Incumbents will remain unbeatable, districts will have bizarre shapes and redistricting will continue to generate endless, lucrative opportunities for litigants to draw taxpayer dollars away from our schools, roads, welfare programs, etc.

Stop the madness.

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