A Weak Defense of Extreme Gerrymandering
Earlier this week the WSJ published an editorial to defend the districts produced by Wisconsin’s GOP by John Ryder: A Line the High Court Shouldn’t Cross.
It is a problematic defense.
Let’s start with the sub-title:
Plaintiffs ask the justices to impose proportional representation, European-style, across the U.S.
Two immediate reactions:
First, no, that isn’t what they are asking for (and I will confess: I wish they were, but that is another discussion). Indeed, they don’t actually use disproportionality as one of their metrics. In a perfectly proportional system, the percentage of seats a party wins is roughly equivalent to the percentage of votes it wins. This pertains, by the way, to small parties as well. A party that could win, say, 5% of the vote, would be entitled to 5% of the seats in a truly proportional system. Many factors go into how proportional a system can be (that I will not go into here). The plaintiffs in Gill v. Whitford are decidedly not asking for PR. Their arguments, and the social science that they relying on, focuses very heavily on maintaining the basics of the US electoral system, which is not designed to be proportional.
Second, xenophobia much? ”European-style” should not an epithet. Beyond that, some form of PR is the global norm in democracies, not just in Europe. Indeed, the number of cases that use single seat districts with plurality winners is limited: basically Canada, India, and the UK to go along with the US when it comes to major, established democracies.
Really, one of the main problems with this entire conversation is the assumption that is often made in the US that we are the norm in terms of democratic elections, rather than being an decided outlier. We have what we have not because it is demonstrably best. We have what we have because of Anglo traditions, as well as being one of the first countries to use elections. Being an early adopter has significant drawbacks.
The actual text of the column is not much better:
The plaintiffs will present a series of equations giving the illusion of precision and, they hope, masking their underlying political motivation. If the justices accept the plaintiffs’ argument, or any of its variations, it would put the courts deep into what Justice Felix Frankfurter called the “political thicket” of drawing political maps. More important, it would undermine a bedrock principle of American politics—that we elect representatives based on electoral districts, not proportionally as in many European countries.
Using social science is not illusory. It is possible to analyze these situations and while any given analysis may be worthy of criticism, it is incorrect to dismiss the entire enterprise (which is why I find Justice Roberts’ “sociological gobbledygook” statement to be disconcerting). Indeed, there is a vast literature on the ways in which institutional choices affect political outcomes, especially in terms of electoral rules. Dismissing the political science in this case as illusory or gobbledygook is like treating medical science as witchcraft in a case about public health.
Further, the court need not draw the lines to find what happened in Wisconsin to be problematic. Indeed, it need not get directly involved in line-drawing to provide a remedy. While it is true that we have a tradition of single seat districts, that doesn’t mean a) it has to stay that way (not that this lawsuit is attempting the feat of doing away with them), nor b) that extreme gerrymandering of those districts is a good idea (let alone a constitutional acceptable one).
And again: the appeal to xenophobia is not an argument. Indeed, Europe, as well as Asia and Latin America, tends to do representative elections better than the US does.
The piece continues:
Their [the plaintiffs’] theory comes down to this: A political party’s representation in a state legislature should be close to its statewide vote total in legislative elections.
This strikes me a reasonable standard. Why shouldn’t it be?
we have plaintiffs who argue that because redistricting hasn’t yielded the results they want, they are entitled to judicial intervention.
This is an egregiously false characterization. As I noted in my previous post on this topic, this is not about simply not liking the outcomes, it is about one party drawing lines in a way that heavily favors itself:
48.6% of the vote provided the GOP 60.6% of the [State Assembly] seats in 2012, 52% of the vote later garnered them 63.6% in 2014, and 64.6% in 2016.
Those numbers should be indefensible to a dispassionate observer.
Ryder does correctly note that a major part of the problem is geographical sorting:
Americans have been sorting themselves into political enclaves for decades, as Bill Bishop documented in his 2008 book, “The Big Sort.” Mr. Bishop noted the increasing trend of counties to be carried by one party or the other by larger and larger margins. From 1976 to 2004, the proportion of Americans living in counties that were carried by landslide margins (20% or more) in presidential elections increased from 26% to 48%—even though 1976 and 2004 were close elections with similar popular-vote margins (2.1% and 2.4%, respectively).
Others have carried this analysis forward, giving the phenomenon the academic moniker “spatial polarization.” David Wasserman of the Cook Political Report observed last March: “More than 61 percent of voters cast ballots in counties that gave either Clinton or Trump at least 60 percent of the major-party vote last November. That’s up from 50 percent of voters who lived in such counties in 2012 and 39 percent in 1992.”
What this means for redistricting is Democrats tend to live in one part of a state, or a county, and Republicans in another.
There are clear difficulties linked to this sorting, which is not new, but has deepened in recent years. And yes, it create challenges for drawing lines (and is actually a good argument for doing way with single seat districts, if representation matters). But it is also true that schemes like the one in Wisconsin take advantage of this situation. It exploits it; it by no means lessens it.
I acknowledge that establishing an appropriate standard for determining how much gerrymandering is too much is difficult. But that doesn’t mean that what we are seeing in Wisconsin and elsewhere should be allowed to continue.
The basic notion of representation is at stake here. As such, Ryder is correct about the stakes of this decision, but for the wrong reasons:
In Gill v. Whitford, the Supreme Court has an opportunity to put an end to this nonsense by finding that the lower court ignored precedent and misapplied the law. It should do so in order to preserve our democracy.
Yes, the nonsense of extreme gerrymandering in which the victor can redraw the maps to deepen its win needs to end (although Ryder wants it to continue). And yes: we need to preserve our democracy, but ruling favor of the extreme gerrymandering is not the way to do so.