Gerrymandering Is Back

Can you keep getting outraged by gerrymandering after a certain age?

Gerrymandering is back in the news.

But don’t expect me to have an opinion.

When I was younger and more cognitively energetic a quarter of a century ago, I took an interest in gerrymandering.

There were several reasons for this. For one, I had just moved back to the San Fernando Valley, which is one of the most topographically distinct regions in the country: it’s a flat, dense suburban area surrounded by steep mountains on about 95% of its perimeter. The Valley has natural boundaries, so it seems particularly egregious to wholly gerrymander districts within The Valley.

And my Congressman, Howard Berman, a heavyweight who became the Chairman of the House Foreign Affairs committee, and his brother had just redistricted the entire state of California’s districts in the House of Representatives following the 2000 Census to save Howard’s seat from flipping to a Mexican Democrat. From the Wall Street Journal:

So, until the 2012 election, the Valley was represented by Howard Berman and Brad Sherman in Congress, both Jewish Democrats. It took some heroic gerrymandering by Berman’s brother after the 2000 Census to keep a Mexican district from being created in the Valley, as demographic shifts would suggest.

The Berman Brothers wound up redistricting the entire state of California to keep all incumbents in their seats despite the rapid demographic changes caused by immigration. In reward, the incumbents of both parties allowed the Berman brothers to gerrymander Howard’s district to prevent the election of a Mexican representative, even though the liberal Democratic Berman was ostensibly in favor of diversity.

Finally, the 2010 Census led to the Mexicans getting their own Congressperson, and Berman and Sherman had to battle for the remaining white seat, with Berman losing a very expensive election in 2012.

It was all very shameful, so it set an an energetic 40-something like me to researching what the big brains had come up with to get around gerrymandering fairly. I discovered that an old friend, whom I had known in Chicago, was the leading expert on objective rules for redistricting. So I interviewed law professor Dan Polsby for UPI:

Q&A on gerrymandering with Dan Polsby

By STEVE SAILER, UPI National Correspondent

LOS ANGELES, Sept. 19, 2002 (UPI) -- "Democracy is supposed to be about people choosing their representatives, not representatives choosing their people," acidly commented Daniel D. Polsby, associate dean of the George Mason University law school and a long time critic of state legislatures gerrymandering Congressional districts to protect incumbents and other powerful interests.

The 2002 elections for Congressional Representatives will be the first conducted under the new districts drawn following the 2002 Census. Although important issues are at stake in November, most of the districts' borders have been gerrymandered so skillfully that the typical race's outcome is predetermined. Time Magazine estimates that 394 House seats are "safe," 29 are "almost safe," and eleven are "toss-ups." That's eleven toss-ups out of 435 separate elections.

In contrast, 8 of 34 Senate seats are said to be toss-ups. The Senate is more than ten times more competitive than the House, in large part because Senate races are fought over entire states, which can't be gerrymandered. With districts, however, by carefully redrawing boundaries, parties can ensure that that most of their incumbents enjoy a comfortable majority.

This is the opposite of what the Framers of the Constitution intended for the House of Representatives. They wanted the House to represent the views of the public by allowing voters to make wholesale changes in their Representatives every two years. The Senate, in contrast, with its staggered six-year terms, was supposed to provide a brake on popular passions.

Polsby, who wrote several major law review articles over a decade ago advocating "compact districts" as a replacement for gerrymandering, took time out to answer UPI's questions.

UPI: Why aren't House races more competitive?

Polsby: Probably, there are several main causes. For example, one cannot overlook advances in marketing technique, polling, and so on. But it is obvious that more effective gerrymandering is playing an important part in this as well.

Q: How have advances in computer technology made gerrymandering more effective?

A: In two ways.

First and most important, better computers and better software have allowed the creation of much better census maps and data files on the behavior, including the political behavior, of Americans. Gerrymandering used to be an esoteric, freehand art. Now there is enough information out there, which can easily be broken out down to the block and in some cases the individual household level, to produce maps that effectively identify who's inclined to vote for whom and with what probability. The ward boss's innate knowledge of his territory is now effectively in the public domain.

Second, the wherewithal to use this information politically has become astonishingly cheap, widespread, and democratic. Computers are everywhere, and so are clever people -- young kids in many cases -- who can use them to produce exquisitely accurate, effective maps.

The result has been that there are rather few contestable districts compared to ten or twenty years ago.

Q: The Supreme Court issued some vague rulings against bizarre-looking districts that were extremely gerrymandered in order to favor minorities. Has it said anything about gerrymandering to protect incumbents?

A: The Supreme Court has been unusually Delphic on the subject of gerrymandering. It did specifically consider the case of partisan gerrymandering in 1986. As near as I can make out, it is ordinarily considered permissible for legislatures to engage in partisan gerrymandering, particularly in order to protect incumbents. But if they get too good at it -- if the gerrymandering gets so accurate that it effectively overthrows democratic process, making elections all but supererogatory, then there might be a constitutional claim. We may, for all I know, be approaching this state of affairs now. Let us see where we are in ten years.

Q. Who benefits from gerrymandering? Who loses?

A. Gerrymandering and the practice of democracy are in tension. The political scientist Martin Shapiro described gerrymandering as "a pathology of democracy." It produces a chronic, self-perpetuating skew into the practice of self-representation, no matter how you define the term. Maybe self-representation isn't such a good thing. Maybe Americans aren't ready for it -- there's plenty of evidence for this.

But if, on the other hand, popular governance is of any consequence, gerrymandering is consequential also. Democracy is supposed to be about people choosing their representatives, not representatives choosing their people.

Of course, just because there is rampant gerrymandering doesn't mean that there's less politics than there otherwise would be -- there just isn't as much in district elections and there's a lot more around the drafting tables where the district maps are made. Nor does it mean that the issues of the day don't get debated -- of course they will be, but the debate will occur among a group of people who can be much more confident of re-election, whatever they say or vote for, than would be the case if districts were more contestable.

Representatives would thus, like Frank Capra stick figures, be more "independent" -- in this case, independent of the American public. One could argue -- many have -- that this is a good thing. I think it isn't.

One interesting secondary effect: interest groups will find it more difficult to dislodge people who have been elected from properly gerrymandered districts. The interest groups will thus skip the majority of races and concentrate all their resources on fewer and fewer marginal targets.

Q: Are term limits a good alternative to ending gerrymandering?

A: No.

Term limits are a mixed bag. There are plenty of reasons to be concerned about the systemic things that encourage incumbent "lock-ins." So, term limits as a solution for that are not frivolous.

But the proponents of term limits are going to be disappointed by how they operate in the real world. The theory that animated the term limits vogue (which is now clearly subsiding) is a populist one: These here highbinders get themselves into their cushy sinecures and stay on forever, lining their pockets and their cronies' pockets with honest graft (or doing some other undesirable things), until in extreme old age they're carted off drooling.

Fair enough, it does happen this way pretty often; but term limits won't be an effective tool to stop that sort of thing. The power to do bad things will move from office-holder to staff, but will not diminish overall. As officeholders will turn over more often, more end-period defection episodes will occur, so there might be even more "bad things" -- especially self-servingness -- in legislation.

The real beef is not with interminable incumbency; it is with the sheer size and reach of government. The bigger it is, the more things it will do. The more taxes it will collect. The more powers it will exercise.

All these things will be superintended by human beings sitting in committees. At least if they are elected officials, more of their machinations will be out in the open than if the locus of decision moves into the interior offices of the Capitol. The term limits movement suffers from a poverty of political science.

Q: Isn't gerrymandering inevitable?

A: Yes. You can't take the politics out of politics, you shouldn't even want to. All one can do is manage and limit gerrymandering, not eliminate it. The alternative is to ignore it or claim that it is inconsequential or actually a good thing, which is what most of the professorate has done.

Q: Has much progress been made against it lately?

A: No. Just the opposite.

Q: Do states that reform themselves risk sacrificing influence in the House of Representatives?

A: Yes. Seniority counts for a lot in the Congress. Why should one state volunteer to be Simon-pure when doing so won't reduce the amount of pork, pelf and sheer political triglyceride that tumbles out from Washington? What would the point be of volunteering to get less rather than more of a given pie? It's one thing to be principled, but something else again to be stupid.

Q: Is there any objective standard by which to measure how fair a redistricting plan is?

A: No. It's a mug's game to try to operationalize "fairness" by seeing whether a given state of the world corresponds to someone's picture of what is "fair." What you can do, though, is make it harder to gerrymander. Robert Popper and I argued that this can be accomplished relatively easily by simply insisting that representational districts be as compact as possible. It is already required that they be "equinumerous" [equal in population] and contiguous [not broken into separate pieces]. But all the democratic benefits one can get out of contiguity can be close to undone by gerrymandering.

There are all sorts of ways to define and measure "compactness," but we argue that the best way to understand the concept is by thinking of what makes the most problems for someone who's trying to gerrymander. The measure that leaves the least discretion to the mapmaker is one worked out by Joseph Schwartzberg in the 1960's. Its objective is to minimize the ratio of a district's perimeter to area.

From Wikipedia:

The technical issue is that it’s practically impossible to agree upon the length of a shoreline without using some arbitrary rule of thumb.

From The Seventh State:

So, I was feeling pretty fired up about promoting Compact Districts as the solution for the scandal of gerrymandering, until the older and wiser Professor Polsby pointed out:

Q: Politically, how could this plan be pushed through?

A: It can't be. Let's be realistic. In our system, the decisionmakers are incumbent office holders, the very people who profit from gerrymandering. The most obvious way to deal with the problem would be for the Supreme Court to decide that gerrymandering is unconstitutional, on one of a number of available theories.

Alternatively, public indignation about the practice could become great. This sort of thing happened with the deficit and with term limits. I doubt this will happen with gerrymandering; the subject is just too much inside baseball to sustain a public conversation. Particularly when you talk about operationalizing any reform, people's eyes will just glaze over. It'll be like talking about accounting standards or the tax code.

So, like Polsby, I’ve more or less lost the fire in the belly to try to reform gerrymandering.