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Lawrence Glazer

Lawrence M. Glazer

House of Unrepresentatives

May 19, 2017

Four years ago, when I first wrote about the distortion of election results created by one-party control of legislative redistricting (“How to Turn a Blue State Purple”  DomeMagazine.com, March, 2013), there didn’t seem to be much public interest in the subject. I concluded that perhaps this topic was just too dry and technical.

And yet I was still surprised at the apparent lack of interest, because if there is anything that we regard as sacred to our democracy, it’s elections.

The genesis of the issue is the fact that most state constitutions give the power to shape legislative districts to the legislature itself. This is done once every ten years, following the decennial U.S. Census, which tells us the size and geographical distribution of the U.S. population.

The Census data leads directly to the allocation of both federal and state legislative districts. If a state has lost significant population since the previous census, it may lose one or more seats in the U.S. House of Representatives (as Michigan did after the 2010 Census). Conversely, if the state has gained population, it may be awarded additional seats in the Congress. The total number of seats in the U.S. House of Representatives does not change; what changes is which states get how many of those seats.

When it comes to the STATE legislatures (plural because most states have an upper and lower house), the important figures are population shifts within the state.

Federal and state laws mandate “one person-one vote”, which in turn requires that all districts for a particular legislative house be of approximately the same size (population size, not geographic size).

So when people have, say, moved out of an older city and into a newer suburb, the existing legislative districts (which are based on the previous census of ten years ago) no longer have equal populations; they must be discarded and new districts created to reflect the present population distributions.

Historically, the law has left it to the legislatures to create the new legislative districts; in states where one political party has controlled both houses, that party has shaped the districts to give its candidates every possible advantage.

They have done this by “cracking and packing” – “cracking” to disperse the opposing party’s voters into as many districts as possible, making them the minority in each, and where the opposing party’s voters are heavily predominant, “packing” them into as few districts as possible, siphoning them off from other districts where they might have provided the winning margin.

Many legislators elected from gerrymandered districts tend to display some common characteristics. They are often driven by ideology, unwilling to accept the compromises that get things done. Many of them come from the extremist wings of their parties.

Why is this so? Look at it this way: In a close district (i.e., a district which could swing either way in the general election) one factor that primary election voters have to take into account is which candidate would give the party the  best chance of winning the general election. A voter might feel that candidate Jones, an uncompromising purist on the issues, best represents her views, but realistically candidate Smith, a moderate,  has a much better chance of winning the seat for her party, so she votes for Smith. But if that district is a virtual lock for her party in the general election, there is no need to consider the candidates’ relative strengths; she knows that whichever candidate wins the primary will also win the general. So she votes for the purist Jones.

Thus, extremism grows within the legislature and, without anyone desiring it, as the icy tentacles of polarization creep further into our political institutions, making them ever more brittle and unresponsive to the popular will.

***

As said above, in 2013 there seemed little interest in this issue.

But times have changed.

National attention has recently been attracted to the case of Whitford v Gill, in which a special panel of three federal trial judges ruled that the Wisconsin legislature’s 2011 creation of new districts – which gave electoral advantage to Republican candidates -violated the U.S. Constitution. The State of Wisconsin has now petitioned the U.S. Supreme Court to hear the case, pursuant to special rules that apply to reapportionment litigations. If the Supreme Court accepts the case, it will occasion that court’s first-ever ruling on a an alleged gerrymander for purely partisan advantage (the Court’s previous rulings having reviewed gerrymanders alleged to be racially discriminatory).

As is the case in most states, the Wisconsin lawmakers had the authority to design the electoral districts for seats in the U.S. House of Representatives, as well as the upper and lower houses of the state legislature

The Whitford plaintiffs created a simple method of measuring the degree of gerrymandered distortion in a given election. The “Efficiency Gap” measures the difference between the parties’ respective wasted votes in a given legislative election, divided by the total number of votes cast. The result is a expressed as a percentage. If each party wastes votes at an identical rate, the Efficiency Gap would be zero.

Obviously, each party’s percentage of the overall total votes cast in a given election will never be an exact match for the percentage of seats won by that party. But a disparity that is large serves as a red flag. And if that large disparity continues to show up in consecutive elections, the flag morphs into a flashing red light. The Efficiency Gap tells us whether the disparities were more than a lucky coincidence.

In the 2012 election, GOP candidates got 48.6% of the two-party statewide vote share for the Assembly (Wisconsin’s lower house), but won 60.6% (60 of  99) seats. The Plaintiffs’ experts measured the  Efficiency Gap for that election at 13%.

In the 2014 election GOP candidates got 52% of the two-party statewide vote share for the Assembly, but won 63.6% (63 of  99) seats. The Plaintiffs’ experts measured the 2014 Efficiency Gap at 10%.

The Court found that it didn’t even need to consider the Efficiency Gap to find that Republican legislators, in caucus, intentionally designed a map of legislative districts which would give their party an advantage in all elections for the ten years following the 2010 Census and that they “got what they intended to get”, a continuing advantage in both the 2012 and 2014 elections (that is, the panel did not base its decision on the Efficiency Gap, finding only that it was useful as “corroborative” evidence).

The three-judge panel therefore ruled that the district map (which became Act 43 of 2011 when Republican Wisconsin Governor Scott Walker signed it) denied Democratic voters the equal protection of the laws, in violation of the 14th Amendment to the U.S. Constitution. It was, however, not unanimous; one judge dissented.

The State of Wisconsin has appealed the decision directly to the U.S. Supreme Court. If the Supreme Court accepts the case, we are looking at the strong probability of a decision that will heavily impact U.S. politics for years.

And as I said,  times have changed.                              

Over twenty states have now created bi-partisan, independent apportionment commissions to design new legislative districts after each decennial census. Some of the commissions are recommendatory bodies, and some have plenary authority to set districts. Although not free of problems, they do show promise of curtailing the most egregious gerrymanders.

                                       

In Michigan there are some early signs of possible action.

Attorney and former Michigan Democrat party chairman Mark Brewer says he is readying a federal gerrymandering lawsuit of his own, independent of the party organization.

The League of Women Voters conducted a series of Town Halls on the subject in 2015.

And this winter a group calling itself “Voters Not Politicians” registered with the Secretary of State as a nonpartisan ballot question committee, with the avowed goal of putting the creation of an independent redistricting commission on the 2018 statewide ballot.

Is Michigan fertile ground for redistricting reform?

Well, recall the Wisconsin Efficiency Gap figures for the State Assembly: they were respectively 13% for 2012 and 10% for 2014.

Bridge Magazine calculated the Efficiency Gaps for the 2016 Michigan legislative elections. They were:

U.S. House: 15.5% (GOP won 9 of  14 seats, though their overall vote was just barely more than Democratic votes.)

State House: 10.1% (GOP won 63 to 47, despite Democrats getting larger overall vote for House seats by about half a percent.)

State Senate: 22.8% (GOP won 27 of 38 seats, with GOP having only a slight lead in the overall vote.)

Nearly twenty-three percent!

So, by at least one measure Michigan’s State Senate districts appear to be twice as distorted as the Wisconsin State Assembly.

If the Supreme Court accepts the Wisconsin case and adopts the Efficiency Gap – two big ifs – Michigan’s legislature will be in the cross-hairs.

But even if the Court declines to act, Michigan’s voters may amend our State Constitution, as proposed by Voters Not Politicians.

In any case, I sense that the gerrymander is an issue whose time has finally come.

Lawrence M. Glazer is the author of Wounded Warrior, a recently published biography of former governor and Supreme Court justice John Swainson. He is also a retired Ingham County Circuit Court Judge and former legal advisor to Gov. James J. Blanchard.

May 18, 2017 · Filed under Glazer

1 response so far ↓

  • 1 Anagnorisis // May 19, 2017 at 12:32 pm

    Well taken, that would be nice, but as always, we’re asking the metaphorical fox to guard the henhouse. What we’d really like is, as suggested, a voter-driven decision-making process, precisely what elected officials don’t want. It is unsettling to say the least to know that the public has so few actual rights and so little say in how we live. Partisan politics being as they are, I see no good outcome.


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