October 2017

Gerrymandering

Gina Eborn, President and one of the founding members of The Fair Redistricting Caucus of Utah (FRCU) was the featured speaker at our September general meeting The FRCU is a non-partisan organization that started in November 2016 with the goal of educating the public on the practice of gerrymandering and how it negatively affects all constituents regardless of political affiliation.

 According to Webster’s Dictionary Gerrymandering is:

• Manipulate the boundaries of (an electoral constituency) so as to favor one party or class.
• Achieve a result by manipulating the boundaries of an electoral constituency:

Another definition of gerrymandering is that it “allows politicians to choose their voters rather than the voters choosing their politicians.”

Historically gerrymandering has been around for centuries, but came to prominence under its current coined phrase in 1812, as governor of Massachusetts, Elbridge Gerry signed a bill authorizing the revision of voting districts in his state. Members of Gerry’s party redrew them in order to secure their representation in the state senate. They carved an unlikely-looking district with the shape of a salamander. According to one version of the coining of gerrymander, the shape of the district attracted the eye of the painter Gilbert Stuart, who noticed it on a map in a newspaper editor’s office. Stuart decorated the outline of the district with a head, wings, and claws and then said to the editor, “That will do for a salamander!” “Gerrymander!” came the reply. The image created by Stuart first appeared in the March 26, 1812, edition of the Boston Gazette, where it was accompanied by the following title: The Gerrymander. A New Species of Monster.

The new word gerrymander caught on instantly—within the same year gerrymander is also recorded as a verb. (Gerry’s name, incidentally, was pronounced with a hard (g) sound, although the word which has immortalized him is now commonly pronounced with a soft (j) sound.) Gerry ran for reelection in 1812, but was defeated, although his party went on to win the majority.

With every Census, all 50 state legislatures are required to redraw the borders of their congressional districts to accord with the Supreme Court’s “one person, one vote” rule and to make the districts as equally populous as possible. While the exercise is premised on equality, it presents an irresistible opportunity for political parties to tilt the playing field to their advantage. The party that controls the state legislature inevitably redraws the districts, with patchworks and shapes so bizarre that their creators nearly join the pantheon of postmodern art. The retooling of these boundaries boils down to one purpose: to maximize the number of seats their party can capture in the upcoming election. Bewildered by the complexity of other options, the Supreme Court has mostly upheld this arrangement.

The common misconception is to assume that gerrymandering allows parties to engineer safe districts for their incumbents, ensuring easy reelection. But the exact opposite is true. Redistricting’s real purpose is engineering safe districts for your opponent—to pack as many of them into as few districts as possible. It’s like Patton’s infamous maxim on war: you make the other poor bastard die for his country. If anything, redistricting by conservatives would make Republican House districts slightly less conservative in order to include Republican voters in districts where their votes are needed to win seats. The most common methods used to minimize the impact of a voting block are packing and cracking and there are two types of gerrymandering, racial and political. Racial is a protected class, however political is currently not.Packing concentrates members of a group in a  single district, thereby allowing the other party to win the remainder of the districts.

Cracking splits a bloc among multiple districts, so as to dilute their impact and to prevent them from constituting a majority. These methods are frequently used in conjunction with each other.

Racial

The term racial gerrymandering initially designated the post-Reconstruction practice which, like poll taxes and literacy tests, was designed to disenfranchise African-Americans. Legislative district boundaries were drawn with the aim of diluting the electoral power of newly registered voters from ethnic minority groups.

Following the passage of the Voting Rights Act of 1965, this practice was prohibited; indeed, in many circumstances, the statute in fact requires the creation of majority-minority districts. The practice of drawing districts that would afford racial and ethnic minorities the opportunity for elected representation has come be known as affirmative gerrymandering or—in a somewhat ironic reversal—racial gerrymandering.

Political

Partisan gerrymander is typically conducted by the majority party to strengthen or maintain their electoral advantage. In a 5-4 decision in Vieth v. Jubelirer the Supreme Court rejected a challenge to politically gerrymandered districts due to a lack of justiciable standards, meaning that political gerrymandering can be conducted legally. Partisan gerrymandering is a serious problem in our democracy. In jurisdictions nationwide, legislators have drawn legislative maps so that they can choose their voters, instead of voters being able to choose their representatives. This is usually done in a secret office – away from the Capitol, the public, and the press – and then passage of their plan is rushed through the Assembly.

REDMAP

The idea behind REDMAP was to hit the Democrats at their weakest point. In several state legislatures, Democratic majorities were thin. If the Republicans commissioned polls, brought in high-powered consultants, and flooded out-of-the-way districts with ads, it might be possible to flip enough seats to take charge of them. Then, when it came time to draw the new lines, the G.O.P. would be in control.

The Increasing Need For A Legal Standard

It is clear the current redistricting process is undermining our democracy and partisan gerrymandering has become the political weapon of choice for legislators to maintain political power. The U.S. Supreme Court held that it has the authority and responsibility to decide partisan gerrymandering claims, and in 2006, a majority of justices agreed that excessive partisan gerrymandering violates the Constitution.

However, the Court has yet to adopt a standard for determining whether a redistricting plan constitutes a partisan gerrymander. Every proposed test to date has been deemed unworkable by the courts – too ambiguous and subjective to reliably identify the most objectionable plans. Without a legal standard, voters are free to challenge politically motivated maps in court, but judges, without clear guidance, ordinarily dismiss these cases out of hand. The result is voters are unable to hold their representatives accountable and reign in extreme partisan gerrymanders.

A Legal Challenge To Stop Partisan Gerrymanders Nationwide

CLC is part of a litigation team representing 12 Wisconsin voters who have challenged the state’s Assembly district lines as an unconstitutional partisan gerrymander in Gill v. Whitford. Our case is the first purely partisan gerrymandering case to go to trial in 30 years. Through this litigation, the plaintiffs seek to establish for the first time a manageable standard by which courts nationwide can analyze partisan gerrymandering claims.

Efficiency Gap

Wasted votes are ballots that don’t contribute to victory for candidates, and they come in two forms: lost votes cast for candidates who are defeated, and surplus votes for winning candidates, but in excess of what they needed to prevail. When a party gerrymanders a state, it tries to maximize the wasted votes for the opposing party while minimizing its own, thus producing a large efficiency gap. In a state with perfect partisan symmetry, both parties would have the same number of wasted votes.

Suppose, for example, that a state has five districts with 100 voters each, and two parties, Party A and Party B. Suppose also that Party A wins four of the seats 53 to 47, and Party B wins one of them 85 to 15. Then in each of the four seats that Party A wins, it has 2 surplus votes (53 minus the 51 needed to win), and Party B has 47 lost votes. And in the lone district that Party A loses, it has 15 lost votes, and Party B has 34 surplus votes (85 minus the 51 needed to win). In sum, Party A wastes 23 votes and Party B wastes 222 votes. Subtracting one figure from the other and dividing by the 500 votes cast produces an efficiency gap of 40 percent in Party A’s favor.

On to the Supreme Court

On November 21, 2016, a three-judge panel in the U.S. District Court for the Western District of Wisconsin struck down Wisconsin’s state assembly district map. With this decision, plaintiffs have successfully alleged and proven that a state legislative redistricting plan is an unconstitutional partisan gerrymander for the first time in 30 years.

The ruling issued by the court stated the following: “We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.”

The plaintiffs’ three-part test, which was adopted in this case, can now be used across the country to fight back against unfair partisan gerrymandering.

The state of Wisconsin filed their notice of appeal on Feb. 24, 2017 and their opposition to CLC’s motion to affirm on May 18, 2017.On June 19, 2017, the Supreme Court decided to hear oral arguments in Gill v. Whitford. The case is set for oral arguments before the Supreme Court on Oct. 3, 2017.

Utah Ballot Initiative

Better Boundaries intends to address the problem of gerrymandering in Utah through a redistricting ballot initiative for the 2018 election.

The initiative will modify the current system of redistricting by establishing an independent redistricting commission and prescribing redistricting standards and requirements. This improved system will reinforce our democracy by making our elected officials more accountable, increasing the competitiveness of our elections, reducing polarization, and strengthening voter participation and civic engagement.

However…In 2000, Arizona voters opted to turn redistricting over to a board made up of two Democrats, two Republicans, and one independent. The commission’s maiden effort, in 2001, was generally regarded as an improvement over previous plans. But by 2011 both Democrats and Republicans had figured out how to game the system, and Arizona’s experiment in bipartisanship devolved into ever more devious forms of ratfucking. One of the commissioners was accused of lying about contacts with Democratic Party officials. A group that claimed to be working for “fair” districts turned out to be funded by a Koch-brothers-linked conservative network. The Republican governor tried to oust the commission’s chairwoman, charging her with “gross misconduct.” The only basis for the charge seemed to be that the governor did not care for the way the new districts had been drawn.

Racial Gerrymandering–Utah

San Juan County has been ordered to redraw political boundaries, following a lawsuit by the Navajo Nation. San Juan County is Utah’s largest county and Native Americans make up about 50% of the population compared to 47% whites. The judge in this case is appointing an independent monitor in this case. San Juan County has been opposed to this option in the past, but says they welcome it.

There is also a second lawsuit over Navajo voting issues that the ACLU is taking on over “mail in” elections as Navajo is an unwritten language. Also there are limited polling places and limited people available to provide translation services.

 —Gina Eborn

As this newsletter is going to print the Wisconsin case of Gill v. Whitford…

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President’s Message

I’ve always been a procrastinator, so I nearly always submit my message for the newsletter late. But this month Wayne needs it to be done early, (or at least not late). So, being a night person, I decided to start this message late Sunday night/early Monday morning, after finishing some domestic chores. I sat down with a snack and my Laptop. But first I turned on the TV to catch the news and the horror of the Las Vegas shooting was unfolding right in front of me on my 60-inch screen. At that point I knew I couldn’t word process anything. All I could do was watch. So now it’s the day after and I need to write my message and all I can think about is this incident which is being called the worst mass shooting in modern history. So, I’ll just have to write about it.

While I watched I took a few notes. First was that this killer was in a group the FBI call, “rare, random, and unpredictable.” He was 64, which is older than usual. He was wealthy. He left no note or manifesto, nor was he part of a group of any kind that they know of so far and he wasn’t religious. And in that sense that he is that rare uncharacteristic terrorist killer seems to have the media baffled. To think that it was just a common man who became insane at some point and quietly proceeded to plan and execute that plan is hard to fathom. He may well be one of the scariest kinds of killers, the ones who are normal all their life until they snap.

I also noted that as soon as I saw footage with sound, it was obvious that he had full auto weapons. At first, I thought “where did he get full auto,” then said to myself “duh, it’s really not that hard actually. “So far, they have found four or five dozen weapons and explosive material. So, it could be he was thinking about doing some bombings also.

Of course, there is already gun control talk immediately and rightly so. There is much that could be done to tighten up access and the prohibition of weapons and accessories that civilians should not own. At least not without strict licensing.

But I often say, in discussing gun control, that those who want to kill will find a way. Restrict guns somehow and the killers will get better at making bombs, or creating toxins, or just ramming a large vehicle into a crowd and of course as we are aware of, planes into buildings. Unfortunately, we have seen these other means to kill used throughout the world. One commentator said something about how sad it was that as startling and horrible these acts are, they are becoming almost routine.

As I write this message there are 59 confirmed dead and over 500 injured, some critically. I don’t really have much else to say. At a time like this, the often-invoked cliché, “we have to move on” is inadequate but somewhat true. And we’ll be left with another infamous date.

—Bob Lane
President, HoU

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