Appendix A. Selected articles from The Atlantic, The Economist, The New Yorker, Newsweek, and Time.
I. Robert Draper, “The League of Dangerous Mapmakers”, The Atlantic, October, 2012, accessed December 18, 2014, http://www.theatlantic.com/magazine/archive/2012/10/the-league-of/309084/. The League of Dangerous Mapmakers
Who’s most to blame for our divisive politics? How about the gerrymanderers quietly deciding where your vote goes. Inside the dark art and modern science of making democracy a lot less democratic.
Every 10 years, after U.S. census workers have fanned out across the nation, a snowy-haired gentleman by the name of Tom Hofeller takes up anew his quest to destroy Democrats. He packs his bag and his laptop with its special Maptitude software, kisses his wife of 46 years, pats his West Highland white terrier, Kara, and departs his home in Alexandria, Virginia, for a United States that he will help carve into a jigsaw of disunity.
Where Hofeller travels depends to some degree on the migratory patterns of his fellow Americans over the previous decade. As the census shows, some states will have swelled in population, while others will have dwindled. The states that gained the most people are entitled, under the Constitution, to additional representation in the form of new congressional districts, which (since the law allows only 435 such districts) are wrenched from the states that lost the most people. After the 2010 census, eight states (all in the South and the West) gained congressional districts, which were stripped from 10 others (in the Midwest and the East Coast, as well as Katrina-ravaged Louisiana).
The creation of a new congressional district, or the loss of an old one, affects every district around it, necessitating new maps. Even states not adding or losing congressional representatives need new district maps that reflect the population shifts within their borders, so that residents are equally repre- sented no matter where they live. This ritual carving and paring of the United States into 435 sovereign units, known as redistricting, was intended by the Framers solely to keep democracy’s electoral scales balanced. Instead, redistricting today has become the most insidious practice in American politics—a way, as the opportunistic machinations following the 2010 census make evident, for our elected leaders to entrench themselves in 435 impregnable garrisons from which they can maintain political power while avoiding demographic realities.
For the past four decades, it is what Tom Hofeller has done for a living.
Hofeller maintains an office at the Republican National Committee on Capitol Hill, though he is now the RNC’s paid consultant rather than, as in years past, its official redistricting director. At 69, he is a professorial if somewhat impish fellow (in his early days, a California House speaker dubbed him “the kid with the shit-eating grin”) who is more than content not to be a household name. His after-hours life includes singing tenor in his church choir and reading multitudes of books that seldom have anything to do with politics. Hofeller’s earliest clients included Democrats, and today he describes himself as a moderate Republican. The adjective is irrelevant, however. His chosen field is, according to Georgia Congressman and House Republican redistricting vice chair Lynn Westmoreland, “the nastiest form of
1 politics that there is”: Tom Hofeller’s objective is to design wombs for his team and tombs for the other guys.
And so his cyclical travels take him mainly to states where the Republicans are likely to be drawing the new maps. (In most states, an appointed committee consisting of legislators from the majority party produces the map, which is then brought to the legislative body for a vote. Other states relegate the duties to an appointed commission.) At meetings, Hofeller gives a PowerPoint presentation titled “What I’ve Learned About Redistricting—The Hard Way!” Like its author, the presentation is both learned and a bit hokey, with admonitions like “Expect the unexpected” and “Don’t get ‘cute.’ Remember, this IS legislation!” He warns legislators to resist the urge to overindulge, to snatch up every desirable precinct within reach, when drawing their own districts.
But Hofeller’s helpful tips give way to the sinister warnings of a gimlet-eyed, semi-clandestine political operative: “Make sure your security is real.” “Make sure your computer is in a PRIVATE location.” “ ‘Emails are the tool of the devil.’ Use personal contact or a safe phone!” “Don’t reveal more than necessary.” “BEWARE of non-partisan, or bi-partisan, staff bearing gifts. They probably are not your friends.”
Be discreet. Plan ahead. Follow the law. Don’t overreach. Tom Hofeller relishes the blood sport of redistricting, but there is a responsible way—as Hofeller himself demonstrated this past cycle in the artful (if baldly partisan) redrawing of North Carolina’s maps—and also a reckless way. So that his message will penetrate, he tells audiences horror stories about states that ignored his warnings and went with maps that either were tossed out by the federal courts or created more political problems than they solved.
Already Hofeller has picked out which cautionary tale he will relay during the next decennial tour. The new horror story, he’s decided, will be Texas, which stood, this past cycle, as a powerful example of how reckless a redistricting process can become. That mangled effort also provides a stark contrast to the maps Hofeller helped create in North Carolina—drawings that demonstrate how in the blood sport of redistricting, the most cravenly political results are won with calculating prudence.
As the election returns rolled in on the evening of November 2, 2010, Hofeller had already started gearing up for the next round of redistricting. “I’m sitting and watching, less interested than many in the congressional races,” he recalled. “I’m the one saying ‘Okay, so we won Congress. The question is, are we going to keep it?’ And then what I see is that we gained 700 state legislative seats. The night just kept getting better and better. Things happened in some states”—in terms of controlling whole legislative bodies—“that we never expected. Alabama! North Carolina!”
According to Lynn Westmoreland, the Republican redistricting vice chair in the House, this ritual mapmaking is “the nastiest form of politics that there is.”
It seemed like Reconstruction all over again for the GOP. Because the Republican tsunami coincided with the 2010 census, Tom Hofeller’s party was suddenly able to redraw many of the 435 congressional maps to its own partisan advantage.
2 Without asking for guidance from Hofeller or other veterans of the trade, delirious party officials predicted that after all the connivances were set in motion, the GOP would be able to reward itself with an additional 15 safe House seats before a single vote was cast in the 2012 elections.
It hasn’t quite turned out that way. Partly this is because Democrats understood the stakes and went to extraordinary lengths to blunt the assault. In California, the Democrats (according to e-mails obtained by ProPublica) successfully swayed a newly formed independent citizens’ redistricting commission, through an intricately coordinated guerrilla operation that will likely accrue them six or seven new seats. In Republican-controlled Florida, Nancy Pelosi—in relentless pursuit of the House speakership she lost after the 2010 midterms—helped fund the successful “Fair Districts” referendum to ban partisan redistricting. The measure seems to have persuaded Florida map-drawers to exhibit some self-restraint, and thus a number of surefire Republican seats were wiped from the boards. Of course, Pelosi has not suggested that the Fair Districts concept be applied to states where her party wields legislative control, such as Maryland and Illinois, where the Democrats further cut into the GOP’s gains by drawing nakedly partisan maps that simply vaporized Republican-held districts.
Tom Hofeller certainly did his part to maximize the returns on the GOP’s 2010 electoral bounty. Hired by North Carolina’s top GOP legislators just after the midterms to advise in the drawing of their state’s new maps, the political cartographer spent many hours on the phone with the state legislature’s redistricting chairmen. (Hofeller is careful to avoid leaving an e-mail trail. As his PowerPoint presentation cautions, “A journey to legal HELL starts with but a single misstatement! … Remember recent e-mail disasters!!!”) While talking, Hofeller would expertly manipulate his computer’s Maptitude software, a lightning-fast graphics system that processes neighborhood population data, including racial composition, so that a user can draw and redraw hypothetical district lines.
By July 2011, Hofeller had helped produce what a Democratic operative ruefully terms “exceptionally smart” maps—ones that, assuming they survive a lingering court challenge, may very well install a 10–3 GOP stronghold in place of the present 7–6 Democratic congressional majority.
Hofeller already knew North Carolina, the focal point of several landmark redistricting cases in which he’d testified, well. The Tar Heel State has a history of election discrimination and is therefore one of the jurisdictions covered by Section 5 of the Voting Rights Act, which requires that electoral maps be approved by either a federal court or the Justice Department. (Like all other states, North Carolina is also covered by Section 2, which forbids discriminatory practices more broadly.) Hofeller and the other Republican mapmakers therefore took particular care not to “retrogress” the racial makeup of the districts represented by the African-American Democrats G. K. Butterfield and Mel Watt—since doing so would have meant running afoul of the Voting Rights Act.
Instead, he reserved his chief mischief for the remaining districts. Hofeller and his cohort hoarded several of Raleigh’s white precincts and moved them into the 2nd District, which had been held by Democrats for 108 of the previous 110 years, until a former intensive-care nurse named Renee Ellmers rode the Tea Party wave to an upset victory in 2010. The new drawings would give the neophyte Ellmers a safe Republican district to last at least at decade. Recognizing that North Carolina’s many Democratic voters had to be put somewhere, the mapmakers shoveled as many as possible into the Democratic districts of Watt and of David Price, a former Duke professor who represented the liberal bastion of Chapel Hill. Most of those Democrats, however, were stripped from the districts of the moderate Democratic incumbents Mike McIntyre, Larry Kissell, and Brad Miller. In the Democrat Heath Shuler’s 11th District, the mapmakers simply gouged out the progressive core, Asheville, and affixed it to the
3 10th, the state’s most Republican district over the previous 60 years. The new maps have made quite an impact. Shuler and Miller have announced that they will not seek another term. McIntyre (whose house has now been drawn out of his own district) and Kissell are widely viewed as among the most imperiled Democrats facing reelection in November.
Progressive groups immediately filed suit challenging the North Carolina maps, contending that the state deliberately diluted minority voting power. Hofeller happens to be an old hand at redistricting litigation, and the maps will probably survive into the next decade. (Meanwhile, in a dazzling show of circular logic, Phil Berger, the top Republican state senator, recently refused to allow consideration of a redistricting- reform bill that he had supported back when his party was in the minority, citing the fact that North Carolina is “engaged in litigation on that issue.”)
Still, legal battles have been the other major factor in diminishing the Republican Party’s success. Given that blacks and Latinos tend to vote overwhelmingly Democratic, Republicans have often taken pains to maximize their control of the districts in a way that does not violate the terms of the Voting Rights Act. But the new census results have presented the GOP with a particularly confounding puzzle—one that lies at the center of this cycle’s redistricting controversies. On the one hand, the biggest gains in U.S. population over the past decade have been in two Republican-controlled states: Florida, which thereby received two new congressional districts, and Texas, which was granted a whopping four.
But on the other hand, most of each state’s new residents are African Americans and (especially) Hispanics. In Texas, the population has swelled by 4.3 million over the past decade. Of those new residents, 2.8 million are Hispanic and more than half a million are African American. While those groups grew at a rate of 42 percent and 22 percent, respectively, the growth in white Texans was a meager 4.2 percent. In other words: without the minority growth, Texas—now officially a majority-minority state—would not have received a single new district. The possibility that a GOP map-drawer would use all those historically Democratic-leaning transplants as a means of gaining Republican seats might strike a redistricting naïf as undemocratic.
And yet that’s exactly what the Texas redistricting bosses did last year. Shrugging off the warnings of Tom Hofeller and other Washington Republicans, the Texans produced lavishly brazen maps that resulted in a net gain of four districts for Republicans and none for minority populations. The entirely predictable consequence is that the Texas maps have spent more than a year bouncing between three federal courts, including the Supreme Court. The legal uncertainty has had national ramifications. It meant, for example, postponing the Texas primary from March 6 until May 29, which cost Texas its role as a prominent player in the Super Tuesday presidential sweepstakes—a very lucky break for the eventual nominee, Mitt Romney, who likely would have lost the state to Newt Gingrich or Rick Santorum.
But the chaos produced by the overreach in Texas isn’t anomalous. Rather, it is very much in keeping with the new winner-take-all culture of redistricting, an endeavor that has somehow managed to grow in both sophistication and crassness, like an ageless strain of cancer that inhabits a host body for so long that the two seem inseparable, even as the former quietly destroys the latter from the inside out.
How ingrained is the practice of politically motivated redistricting in America? So ingrained that it existed even before Congress did. Late in 1788, just after Virginia voted to ratify the Constitution and thereby join the Union, Patrick Henry persuaded his state’s legislature to fashion the nascent 5th Congressional District in such a way as to force Henry’s political enemy James Madison, of Montpelier,
4 to run against the formidable James Monroe, of Highland. Madison prevailed and later went on to become America’s principal author of the Bill of Rights as well as its fourth president. Serving as his second vice president was Elbridge Gerry, who as the governor of Massachusetts in 1812 had presided over a redrawing of the state map so blatant in its partisan manipulations that the curiously tailored shape of one Boston-area district resembled a salamander. The term gerrymander has been used ever since to describe the contorting of districts beyond all reason save political gain.
Though the constitutionally intended purpose of redistricting is to maintain proper apportionment of elected representatives, several states, for much of the 20th century, didn’t bother to adjust their district boundaries at all. The result, in Texas for instance, was that a powerful rural legislator like House Speaker Sam Rayburn could represent some 200,000 voters, while in the adjacent Dallas district, Bruce Alger represented roughly 900,000. In 1962, the Supreme Court ruled that such malapportionment violated the Fourteenth Amendment’s guarantee of equal protection under the law. One of the dissenters, Justice Felix Frankfurter, warned against judges’ entering a “political thicket.” The high court subsequently ignored him. In the 1980s, the Court took umbrage at the redistricting orchestrated by Georgia Democrats and their leader, state Representative Joe Mack Wilson, who flatly declared, “I don’t want to draw nigger districts.” A decade later, the Court argued that efforts to boost minority representation could also go too far, citing Mel Watt’s North Carolina district, a wormy creature of such narrowness that, so it was said, a person driving down Interstate 85 with doors open on both sides could kill people in two districts. Justice Sandra Day O’Connor tsk-tsked that “appearances do matter,” and the Supreme Court decreed in 1996 that even districts drawn so as to maximize minority representation should retain “compactness, contiguity and respect for political subdivisions."
O’Connor’s admonition notwithstanding, as works of art, redistricting maps continue to evoke a crazed but symbolically rich dreamscape of yearnings, sentimentality, vendettas, and hyper-realism in American political life. Districts weave this way and that to include a Congress member’s childhood school, a mother-in-law’s residence, a wealthy donor’s office, or, out of spite, an adversary’s pet project. When touring Republican strongholds, Tom Hofeller enjoys showing audiences the contours of Georgia’s 13th District, as proposed after the 2010 census, which he likens to “flat-cat roadkill.” (The map that was ultimately approved is shaped more like a squirrel that hasn’t yet been hit by a car.) This redistricting cycle’s focus of wonderment, in Hofeller’s view, is Maryland’s splatter-art 3rd District, which reminds him of an “amoeba convention.” He tends not to mention the gimpy-legged facsimile that is his own rendition of North Carolina’s 4th District.
The byzantine trade of redistricting was long dominated by brainy eccentrics like Hofeller and his Democratic counterparts Mark Gersh and Michael Berman. But that began to change in the 1990s, when the availability of mapping software (such as Maptitude, RedAppl, and autoBound) and block-by-block census data for the whole country opened up the field to a waiting world of political geeks. The democratization of redistricting—made manifest last year in Virginia, which held a student competition, complete with cash prizes, to draw the best maps—is a lovely thing, perhaps. But as one redistricting veteran told me, “There’s an old saying: Give a child a hammer, and the world becomes a nail. Give the chairman of a state redistricting committee a powerful enough computer and block-level census data, so that he suddenly discovers he can draw really weird and aggressive districts—and he will.”
This amateur-hour dynamic presaged the Texas redistricting fiasco. My native state has a long heritage of bellicose gerrymandering, which began with pronouncedly racist maps drawn by Democrats more than half a century ago and continued with Tom DeLay’s knee-capping of Democratic incumbents in his notorious mid-census redistricting in 2003. But no one ever accused the DeLay machine of being out of
5 its depth. In 2011, by contrast, the individual principally responsible for drawing the state’s congressional district maps, Ryan Downton, was a lawyer and co-owner of a medical-imaging firm. The seemingly random hiring of a relative novice like Downton (who was defeated in May 2012 as a Republican candidate for the state legislature) was in keeping with a willful ignorance embraced by the state legislature’s two appointed redistricting chiefs, neither of whom had the slightest experience in this arcane field. (Downton says he was hired because of his litigation expertise, since so many redistricting cases end up in court.) As the veteran Texas Democratic redistricting strategist Matt Angle told me, “People who actually have an understanding of the Voting Rights Act—like Hofeller, who’s 10 times more competent than the people who drew these maps—they wouldn’t have been part of this.”
According to one of the Texas Republicans intimately involved in the map-drawing project, “Tom [Hofeller] and [Republican National Committee counsel] Dale Oldham created an adversarial relationship with the leadership here in Texas. Incredibly brilliant people who tend to think they’re right, and if you don’t agree with them, they don’t put much effort towards convincing you. And that rubbed raw with the leadership here in Texas."
Whether through personality conflicts or out of hubris, the Texas Republicans decided to do things their own way, with no guidance from Hofeller or other Washingtonians. When I asked Lynn Westmoreland, the House redistricting vice chair, to describe his role in the state’s redistricting process, he replied in a weary voice, “Well, the Texas legislature basically told me, ‘We’re Texas, and we’re gonna handle our maps.’ You know, I’m just saying that when you have a population increase of 4 million, and the majority of that is minority, you’d better take that into consideration."
These statistical realities left the Republican-controlled state legislature and Governor Rick Perry with three choices when it came to redistricting. They could bow to the demographics, draw three or four new “minority-opportunity districts”—in which Latino and/or African American voters would have the opportunity to elect the candidate of their choice—and then set themselves to the task, as Governor George W. Bush once did, of appealing to the state’s fastest-growing population. Or they could opt for the middle ground and create one or two such districts. Or, says Gerry Hebert, a lawyer who has handled numerous election and redistricting cases for Democrats, “they could use the redistricting process to cling to what power they have and hang on for as long as they can."
Earlier this year, I had a breakfast of waffles and fried chicken wings at the Poly Grill, a Fort Worth diner in the heart of a formerly Anglo east-side neighborhood named Polytechnic Heights, which, as a testament to the region’s fluid demographics, is now thoroughly black and Hispanic. With me was Marc Veasey, a 41-year-old African-American Democrat and lifelong Fort Worth resident. Veasey is the community’s representative in the state legislature and would like to be its U.S. congressman. Specifically, Veasey has been expecting one of Texas’ four new districts to be placed here, because of the explosive population growth of blacks and Latinos in the area.
Many House Republicans, like the Texan and House Judiciary Committee Chairman Lamar Smith, reportedly agreed with Veasey that a new minority-opportunity district belonged here—though for different reasons. Failing to create such a district would mean that each of the half dozen–plus Republican members of Congress in the Metroplex would have to absorb increasing numbers of minority voters. Several once-safe GOP districts might thereby become swing districts by the end of the decade. Better, as Smith and others saw it, to preserve the existing seats by funneling the minority population into a new district.
6 But the Texas map-drawers refused to create such a district in the area. Over breakfast, Veasey explained to me what that lack of minority representation meant. Presently, Polytechnic Heights—one of many minority enclaves in the Metroplex that DeLay’s redistricters spread across five Republican districts, thereby “cracking” a potent voting bloc—falls in the district of Michael Burgess, a white Republican who last year told a local Tea Party group that he favors impeaching President Obama. “[Burgess] goes around saying ‘I represent more African Americans than any other Republican in the entire U.S. Congress. Look at me, look at my outreach,’ ” Veasey said. “There’s no way African Americans would ever have any influence in this district at all. His votes prove it. His rhetoric proves it.”
In February, after court testimony in San Antonio and Washington, D.C., Veasey and his fellow Democrats prevailed in a suit charging the state of Texas with producing maps that discriminated against blacks and Hispanics. A three-judge panel ordered that the new 33rd District be drawn into Veasey’s stomping grounds—and Veasey promptly entered the race. He won the primary, and in November he’ll likely capture what will presumably be a safe Democratic seat.
While the San Antonio court awarded the 33rd District to the Democrats, it also left largely intact the state’s drastic redrawing of the 27th District, a territory that includes Corpus Christi, the home of Congressman Blake Farenthold. In the 2010 election, despite being an Anglo Republican who does not speak Spanish in a district that’s 74 percent Hispanic, Farenthold upset the longtime Democratic incumbent, Solomon Ortiz, by a margin of about 800 votes. “I won, which disproves the fact that all Hispanics vote Democrat,” Farenthold told me. “I go back to my premise that most Hispanics, especially in south Texas, if given a test on the issues that would place you as Democrat or Republican, would fall into the Republican category.”
In fact, Farenthold’s opponent, Ortiz, received 86.6 percent of the Latino votes cast. But Hispanic turnout in the 27th was abysmal that year. The Tea Party–backed Farenthold garnered more than 80 percent of the non-Latino vote, which put him over the top.
Over freshly shucked oysters at a Corpus Christi restaurant one afternoon, I relayed to Farenthold the testimony of the state GOP’s map-drawers: basically, they all acknowledged that Farenthold would have had a hard time being reelected in 2012 if they hadn’t drawn him a friendlier map. District 27, which they obligingly constructed for him last year, sheds the border city of Brownsville, climbs up the coast and swallows portions of Ron Paul’s existing district, then abruptly hooks westward into the deeply conservative Bastrop County. The new configuration resembles a Glock pistol held at a 45-degree angle. If Farenthold was so sure he had a Hispanic following, I asked him, then why hadn’t he insisted on keeping his district as it was?
Farenthold, whom I find to be one of the more charmingly plainspoken members of Congress, laughed. “Listen,” he said of the new map, “I’ll take a 60-plus [percent] Republican district over a swing district any day. Duh!”
Given Congress’s low standing, I wondered aloud to Farenthold whether allowing incumbents like him to escape the wrath of his constituents by installing him in a safer district wasn’t thwarting democracy.
“I’m willing to run on my record in any district I live in,” the freshman maintained. He pointed out that “at least 50 percent” of his new district would be composed of his present constituents. He added, “On a
7 metaphysical level, sure, there’s gonna be some politics in it. But elections have consequences. You elect a Republican legislature, you’ll get more Republican-drawn districts. It works both ways.”
I asked Farenthold if being in the new district would in any way change how he conducted himself. “The district I’m in now is a swing district,” he said. “This [new] district is a much stronger Republican district. You say the same thing, but you use different words. Immigration would be an issue—you’re probably not going to change your mind on your core immigration issues, but you’ll be a little softer about how you talk about it in a swing district than in a harder-core Republican district.”
During his last few years in the House, John Tanner of Tennessee pursued a lonely quest to interest his colleagues in a redistricting-reform bill. Tanner was a co-founder of the fiscally conservative Blue Dog Democrats, who were all but wiped out in 2010, the year Tanner himself decided to head for the sidelines. He had introduced his bill first in 2005, when the Republicans controlled the House, then in 2007 and again in 2009, when Democrats were in charge and Nancy Pelosi was the speaker. “She and Steny [Hoyer, then the majority leader,] said, ‘That’s a good idea, we’ll take a look at it,’ ” he recalled with a smirk. “But the hard left and the hard right don’t want it.”
Tanner says that redistricting’s impact has evolved over time, from simply creating safe seats for incumbents to creating rigid conservative and liberal districts, wherein the primary contests are a race to the extremes and the general elections are preordained. “When the [final] election [outcome] is [determined] in the party primary—which now it is, in all but less than 100 of the 435 seats—then a member comes [to Washington] politically crippled,” the retired congressman told me. “Look, everyone knows we have a structural deficit, and the only way out of it is to raise revenues and cut entitlements. No one who’s reasonable thinks otherwise. But what happens? The Democrats look over their left shoulder, and if someone suggests cutting a single clerk out of the Department of Agriculture, they go crazy. Republicans look over their right shoulder, and if someone proposes raising taxes on Donald Trump’s income by $10, they say it’ll be the end of the world. So these poor members come to Washington paralyzed, unable to do what they all know must be done to keep the country from going adrift, for fear that they’ll get primaried.
“It’s imposed a parliamentary model on a representative system,” Tanner went on. “It makes sense for Democrats to vote one way and Republicans to vote another in a parliamentary system. It’s irrational in a representative form of government. So what that’s done is two things. First, it’s made it virtually impossible to compromise. And second, as we’ve seen in this past decade, it’s damn near abolished the ability and responsibility of Congress to hold the executive branch of the same party accountable. The Bush years, we were appropriating $100 billion at a time for the Iraq War with no hearings, for fear that [those would] embarrass the administration. Hell yeah, that’s due to redistricting! The Republicans in Congress and the Bush administration became part of the same team. We’re totally abdicating our responsibility of checks and balances.
”Tanner’s bill (which fellow Blue Dogs Heath Shuler and Jim Cooper reintroduced last year, to similar non-effect) would have established national standards for redistricting and shifted the map-drawing duties from state legislatures to bipartisan commissions. Such commissions already exist in a handful of states, while Iowa relies on nonpartisan map-drawers whose end product is then voted on by the state legislature. Tom Hofeller points to the California citizens’ commission as evidence that politics will inevitably find its way back into the process. “There’s no such thing as nonpartisan,” he told me.
8 Perhaps unsurprisingly, Hofeller insists that the dire consequences of his vocation are overblown. “We’ve had gerrymandering all along, so there’s no proof that that’s the cause of all the polarization,” he told me. “I’m here to tell you that there are two other major factors that are much, much more prevalent than redistricting. One is the 24-hours-a-day, 7-days-a-week news media, where you only get noticed if you’re extreme. And the other is McCain-Feingold, which pushed a great deal of money to the extremes.” In limiting the size of financial contributions to national parties, the campaign finance– reform law encouraged donors to funnel their cash to opaque outside groups. (See James Bennet’s cover story on this subject.)
“That’s part of the problem,” Tanner conceded when I asked him about the super-PAC ads flooding the airwaves. “But you can trace how the members got here back to gerrymandering. I don’t give a damn how much money you spend. These guys are gonna be responsive to the people that elected them, to avoid a party primary. And so they come here to represent their political party, not their district or their country. That attitude has infected the Senate, too. Look at Orrin Hatch,” he said, referring to the veteran Utah senator who fought off a primary challenge from an ultraconservative. “Now you’d think he was an original member of the Tea Party. It makes you sick to see him grovel.”
Some redistricting experts argue that Americans have polarized themselves, by gravitating toward homogenous communities, a demographic trend observed in Bill Bishop and Robert Cushing’s 2008 book, The Big Sort. But, says one Texas Republican map-drawer, “redistricting has amplified the Big Sort by creating safe Republican and safe Democratic districts. Look at Texas. If you count [Blake Farent- hold’s] 27th as the result of a fluke election, the [racially polarized West Texas] 23rd is the only swing district in the state.” In this sense, the only difference that the new maps will make is that instead of one swing district out of 32, there will now be one out of 36. As to what this portends, former Texas Congressman Martin Frost, a Democrat, told me, “I won’t mention anyone by name, but I know certain Republicans in the Texas delegation who would be inclined to be more moderate, if they didn’t have to fear a primary challenge.”
One Texas Republican who dipped his toe in the moderate waters, by voting for last summer’s debt- ceiling deal, was Congressman Michael Burgess. Tea Partiers lambasted him to his face, saying, “You caved.” An analysis by National Journal found that politicians like Burgess were the exception—that most House members who voted to raise the debt ceiling were from swing districts, while “the further a member’s district is from the political center, the more likely it is that he or she opposed the compromise.”
We know what happened after that whole debacle: the Dow Jones plummeted, Standard & Poor’s downgraded America’s credit rating, and Congress’s approval rating sank to an unprecedented low of 9 percent. That intensity of public disgust has hardly abated, and it is felt across the political spectrum: according to an NBC/Wall Street Journal poll released this past January, at least 56 percent of all liberals, moderates, and conservatives would like to see everyone in the legislative branch fired this November.
If this is so, then perhaps Tom Hofeller is right. Perhaps redistricting reform is unnecessary. Perhaps instead the system is self-correcting: the extremists whom the map-drawers have helped to create will be judged as obstructionists unworthy of their safe seats and, by means of electoral laxative, flushed out of the body politic. Thus cleansed, America can then slowly return to what James Madison called “this propensity of mankind to fall into mutual animosities.” When that happens, we know who will be there to draw the battle lines.
9 II. Garrett Epps, “Will the Supreme Court Let Arizona Fight Gerrymandering?”, The Atlantic, September 15, 2014, accessed December 18, 2014, http://www.theatlantic.com/politics/archive/2014/09/can-the- voters-take-politics-out-of-redistricting/380150/.
Will the Supreme Court Let Arizona Fight Gerrymandering?
Voters cut their legislature out of the redistricting process. Now legislators want the Supreme Court to deal them back in.
Constitutional disputes sometimes turn on technical legal terms: What is “due process of law,” for example, or “double jeopardy”? But most of the Constitution isn’t written in legalese, and some important cases are about the meaning of ordinary language. National Labor Relations Board v. Noel Canning, last year’s “recess appointment” case, had been decided by the court below by citing an 18th century dictionary on the meaning of “the.” (The Supreme Court majority didn’t decide the case on dictionary grounds, though Justice Antonin Scalia in his angry concurrence managed to kick up quite a row about the meaning of “happen.”)
Here’s another constitutional conundrum: What does “legislature” mean?
The answer could determine an issue at the heart of our current poisonous politics. Can the voters of a state take control of drawing House districts out of the hands of their elected legislators and entrust it to a bipartisan commission? That’s what Arizona voters did in 2010. Now the legislature is demanding to be allowed back in.
Article 1, section 4, clause 1 of the Constitution says that “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations ....” No one questions that state governments can draw their own legislative districts. But what does “legislature” mean? Does it mean “the legislative power of a state,” or “the bunch of politicians with bad haircuts who meet at the state capitol every year or so”?
Briefs filed with the Supreme Court recite this question in the elevated language of original understanding, Madisonian theory, and the Federalist. But like many, if not most, important constitutional cases, Arizona State Legislature v. Arizona Independent Redistricting Commission is really comic-opera politics in knee britches.
In 2000, civic groups in Arizona—including the League of Women Voters, Common Cause, and the Arizona School Boards Association—joined a bipartisan group of political leaders to propose a voter initiative, Proposition 106. Approved by 56 percent of the voters, it created a new, bipartisan panel called the Independent Redistricting Commission. The commission’s job is to create new districts for the legislature and Arizona’s nine members of the U.S. House. It is not permitted to consider protection of incumbents; it is, however, under a duty to make as many districts “competitive” as possible. The legislature may not approve or disapprove the commission’s maps.
10 The appointment process is labyrinthine: First a commission on appointments proposes names, then officials of the legislature choose two Republicans and two Democrats to serve. These two then select an independent to serve as chair. The governor can remove a member for neglect of duty or misconduct, but otherwise, political control is nonexistent.
Despite its good-government origins, the commission broke into partisan squabbling; the chair, a political independent, often sided with the two Democrats. Governor Jan Brewer, a Republican, fired her. The state supreme court reinstated the chair, saying she hadn’t neglected or abused her office.
The Arizona Republican Party bitterly protested the commission’s 2012 maps. In the most recent legislative elections, the voters picked Republicans by a 17-13 margin in the state Senate and 36-24 in the House. In the U.S. House, the margin flipped from 5-4 Republican to 5-4 Democratic. A partisan districting plan, however, could have given the Republicans a supermajority in the statehouse and kept one or more additional House seats for the GOP.
Now the GOP-controlled legislature has sued, arguing that the Constitution doesn’t allow redistricting of a state by to any official body not controlled by “the legislature thereof.” A three-judge panel below dismissed the suit. The Court will decide, as soon as September 29, whether to affirm the three-judge court or put the case down for a full hearing. The constitutional issue is a close one; the political division underlying it is stark.
Arizona voters decided to take politics of redistricting. The question is whether the Constitution allows them to do so.
Our political system, as we all know, has degenerated into a partisan abattoir; in Congress and in many state capitals, compromise and conciliation are as out of fashion as the straw boater. One major reason is partisan gerrymandering, which produces legislators (on both sides of the aisle) who respond to no one except their wealthy funders and their partisan base. In a 2004 case called Vieth v. Jubelirer, the Supreme Court ducked the chance to put the brakes on this odious practice. Writing for four members of the Court, Scalia scoffed at the idea that partisan thimblerigging was worthy of the Court’s attention: “‘Fairness’ does not seem to us a judicially manageable standard.”
By the time of Vieth, the voters of Arizona had already decided to take politics out of redistricting themselves. The question then becomes whether the Constitution allows them to do so.
The Court has decided a few cases—the most recent nearly 80 years ago—approving the involvement of a state’s governor, courts, and voters in the redistricting process. In a 1916 case called Ohio ex rel. Davis v. Hildebrandt, Ohio voters by referendum disapproved a legislature’s new district map; when the legislature sued, the Court said that “the referendum constituted a part of the state Constitution and laws, and was contained within the legislative power.” Article IV of Arizona’s state constitution sets up the legislative branch with this declaration: “The legislative authority of the state shall be vested in the legislature ... but the people reserve the power ... to approve or reject at the polls any act, or item, section, or part of any act, of the legislature.” Since statehood, the commission argues, the “legislative power” has been vested in the people.”
Lawyers for the legislature respond with Supreme Court caselaw suggesting that “legislature” means “the representative body which made the laws of the people,” not the entire legal apparatus of a state.
11 And they note correctly that none of the previous cases involved a system in which the legislature had no role at all in drawing district maps.
The law in this area, sparse as it is, seems to be relatively settled—the legislature lost below because of these precedents. This case, however, comes to the Court as an “appeal”—that is, directly from a decision by a three-judge district-court panel below. The Court is more likely to hear appeal cases than cases brought to it by petition. In theory, it’s supposed to hear all appeals, but in fact it can reject an appeal for lack of a “substantial question,” meaning in essence that there’s nothing in the case that interests the justices.
The valence of this case from day one has been sharply partisan. Republican conservatives and dark- money groups hate the very idea of “non-political” redistricting. And of course Democrats misuse their legislative majorities to the same end. The ill effects of this scorched-earth strategy are easy to see. The Court has refused to prevent gerrymanders. To insist that the people of a state can’t do it either would be something else again.
12 III. Garance Franke-Ruta, “How Gerrymandering Has Created a Segregated House”, The Atlantic, August 26, 2013, accessed December 18, 2014, http://www.theatlantic.com/politics/archive/2013/08/how- gerrymandering-has-created-a-segregated-house/279041/. How Gerrymandering Has Created a Segregated House
A mid-century solution to the lack of African-American representation in Congress looks to be less effective in the years ahead.
Rick Bloom/National Journal
Reading Robert Penn Warren's 1964 interview with Martin Luther King Jr. along with Beth Reinhard's piece on how African-Americans still lack clout in Congress makes clear a conundrum at the heart of the unfinished revolution King helped lead. Namely, the minority-vote protections locked in by Section 2 the Voting Rights Act of 1965 worked best to ensure minorities had a voice in their own self- government at the federal level in an environment in which the party that elected African-Americans also controlled the House of Representatives, as Democrats did from 1955 to 1995 and again from 2007 to 2011.
King spoke about how inequality is fostered by physical segregation, which leads to segregated conversational communities. "Our society must come to see that this whole question of, of integration is not merely a matter of quantity -- having the same this and that in terms of a building or a desk or this -- but it's a matter of quality. It's, if I can't communicate with a man, I'm not equal to him. It's not only a matter of mathematics; it's a matter of psychology and philosophy," he told Penn Warren. It's an important point, and one we consider too infrequently these days, in which a more numbers-based approach to questions of equality often reigns supreme.
Meanwhile, the Voting Rights Act didn't just work to strengthen the right to vote, but the right to be represented, under Subsection (b) of Section 2.
A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
What that meant in practice the rise of majority-minority districts in states where African-Americans or other minorities would otherwise have been unable to win office. When King spoke 50 years ago at the March on Washington, Reinhard points out, there were only five African-Americans in Congress. Today, 48 years after the Voting Rights Act passed, there are 44.
"But," she writes, "those numbers mask a hard reality: Even with an African-American in the White House, blacks arguably have less clout in Congress than they did in 1963."
13 She continues: "One key hurdle is obvious: All of the African-Americans in the House are Democrats serving in the minority, with scarce hope for a takeover in 2014 .... Another reason for their limited influence is that most come from relatively safe voting districts. Party leaders tend to dole out plum assignments and opportunities to carry legislation to members facing competitive elections."
And Republicans redrew House districts in 2012 to be even safer on their end.
So today we have set-up where minority voters are clustered in districts represented by the minority party in the House, while whites are over-represented in districts represented by the majority party. As Charlie Cook observed in March, "in the process of quarantining Democrats, Republicans effectively purged millions of minority voters from their own districts" with the result of "drawing themselves into safe, lily-white strongholds."
These substantially segregated congressional districts reflect a legacy of, on one side, a fear of contending for the votes of minorities and, on the other, certainty of defeat when contending for the votes of certain whites.
But this mid-century arrangement, strengthened since the 1990s and now hardened into place, is hardly ideal for ensuring minorities have a real say in the federal legislative branch during this extraordinarily partisan era. At the level of the presidential electorate, where everyone is potentially a part of the voting population, it's also not great for Republicans to be seen as the party of white people. (Republican Party leaders in Washington know this, and are working to change such perceptions, though leaders in key states, such as North Carolina, may have different views.)
To return to King's comments, one wonders how much real conversation there is when one party does not, in many districts, have to contend for the votes of minorities, and the other can only elevate minorities into positions of power when the political wind is blowing in its direction.
14 IV. Steven Hill, “How the Voting Rights Act Hurts Democrats and Minorities”, The Atlantic, June 17, 2013, accessed December 18, 2014, http://www.theatlantic.com/politics/archive/2013/06/how-the-voting- rights-act-hurts-democrats-and-minorities/276893/. How the Voting Rights Act Hurts Democrats and Minorities
Though conservatives hope the Supreme Court will strike part of the law this month, the 1965 act has become central to GOP control of the House.
Civil rights are on the nation's docket in a major way. Sometime this month, the U.S. Supreme Court will decide an important voting-rights case, Shelby County v. Holder, in addition to another case involving racial discrimination in higher education and two potentially landmark cases on gay marriage. By the end of June, the nation's civil-rights profile may look quite different.
In Shelby County, the justices are weighing whether the 1965 Voting Rights Act should continue to apply specially to designated regions of the country with ugly histories of racial discrimination. These regions, including the entire state of Alabama as well as eight other states and more than 60 counties, currently must seek "preclearance" from the Department of Justice for any changes to their voting laws and practices (changes can still be challenged after enactment). Officials in Shelby County, Alabama, say "times have changed," that Shelby County is no longer the cesspool of Jim Crow racism it once was, and so the high court should overturn the preclearance requirement, known in legal parlance as Section 5.
Despite the protestations of Shelby County and other jurisdictions, mountains of evidence show that there is little doubt that Section 5 is still needed, including in Shelby County. If anything, preclearance requirements should probably be extended to more parts of the country. Every election reveals new and deviously crafted efforts at voter suppression, from voter-ID laws to intimidation and long lines at the polls that by coincidence seem to afflict minority precincts more than others. Republican legislators in various states continue to push laws that will clearly have a disproportionate impact on minority voters. Section 5's preclearance has been a powerful disincentive against discrimination in elections that, sadly, is still very present today. If the Supreme Court guts Section 5 -- as voting-rights advocates fear will happen, given the Court's conservative majority -- the nation will be jumping off a cliff into unknown territory.
But it would be a mistake to think that, though many Republicans want to see Section 5 struck down, they oppose other sections of the Voting Rights Act. Quite the contrary: The GOP has found the VRA to be a great ally. It turns out the act, as traditionally applied, has helped the party win a great number of legislative races. It also has become a potent obstacle to the Democrats retaking the U.S. House of Representatives.
Beginning in the civil-rights era in the 1960s, the Republican Party -- the party of Lincoln -- became the loudest opponent of race-based remedies to discrimination, whether in school admissions, hiring, or minority representation. The Democrats, once the party of segregation (some people forget that segregationists George Wallace and Strom Thurmond were elected governors of Alabama and South Carolina, respectively, as Democrats) did a dramatic about-face in the 1960s and became the party of
15 civil rights. Acting under the legal strength and moral authority of the Voting Rights Act, the Democrats led the charge to draw so-called "majority-minority districts" -- ones packed so full of minority voters that they usually resulted in electing a minority representative, as intended. The number of minority representatives jumped exponentially from the 1960s through the 1980s, with the number of black House members increasing from five to 24 by 1989.
It would be a mistake to think that, though many Republicans want to see Section 5 struck down, they oppose other sections of the Voting Rights Act. Quite the contrary: The GOP has found the VRA to be a great ally.
But just in time for the redistricting in 1990, some enterprising Republicans began noticing a rather curious fact: The drawing of majority-minority districts not only elected more minorities, it also had the effect of bleeding minority voters out of all the surrounding districts. Given that minority voters were the most reliably Democratic voters, that made all of the neighboring districts more Republican. The black, Latino, and Asian representatives mostly were replacing white Democrats, and the increase in minority representation was coming at the expense of electing fewer Democrats. The Democrats had been tripped up by a classic Catch-22, as had minority voters: Even as legislatures were becoming more diverse, they were ironically becoming less friendly to the agenda of racial minorities.
Newt Gingrich embraced this strategy of drawing majority-minority districts for GOP advantage, as did the Bush Administration Justice Department prior to the 1991 redistricting, even as GOP activists like now-Chief Justice John Roberts campaigned against the VRA because they opposed any race-based remedies. The tipping point was the 1994 midterm elections, when the GOP captured the U.S. House of Representatives for the first time in 35 years and Gingrich because speaker. Many experts on both the left and the right, from The Nation's Ari Berman and prominent GOP election lawyer Ben Ginsberg (who spearheaded the 1991 effort to maximize the number of majority-minority districts), attribute the Republican success that year to the drawing of majority-minority districts; indeed, African-American membership in the House reached its highest level ever, at 40.
VRA districts undoubtedly played a role in the GOP takeover, but they were not the only factor, since Republicans made big gains that year in lots of places outside the South. But in the hardscrabble battles of the 50-50 nation, any advantage at all was embraced, and prominent Republicans like Ginsberg and Gingrich became the loudest proponents of drawing majority-minority districts. Many Republicans still promote this strategy today, and it's the only race-based remedy the GOP has supported in the modern era. The party has been more than willing to shelve its ideology when it suited their naked political interests.
So in Shelby County, many Republicans are trying to have their cake and eat it too. They want the Supreme Court to gut Section 5 of the Voting Rights Act, which prevents them from enacting various voter-suppression laws. But they want to preserve the other parts of the VRA that provide the legal impetus for drawing majority-minority districts. One can't help but admire their cleverness.
Meanwhile, it's only going to get worse for the Democrats. Not only has the drawing of majority- minority districts led to fewer elected Democrats, but today single-seat districts themselves have become a huge barrier to Democrats retaking the House. That's because shifting partisan demographics have left Democratic voters more geographically concentrated than Republican voters. The problem is easy to see in urban areas, where Democratic votes are heavily concentrated. Urban Democrat House members -- a large number of whom are minority -- win with huge majorities, but winning a district with
16 80 percent doesn't help the party gain any more seats than winning with 60 percent. It just bleeds more Democratic voters out of the surrounding districts.
Yet it's not just urban districts that reflect the tilted partisan landscape. Election simulations have shown that partisan demographics -- even more than the gerrymandering of district lines -- give the GOP a natural, built-in edge in a majority of House districts. Those simulations predict that in 2014 the GOP will maintain control of the House even if Democrats win the nationwide House vote by nearly 10 percentage points. This dynamic was illustrated in the 2012 election, when President Obama defeated Mitt Romney by nearly five million votes nationwide, but Romney's vote was more efficiently dispersed - - he won 226 House districts to Obama's 209. That means Democrats can win a House majority only if their candidates win numerous districts won by Romney, a steep uphill climb. This explains the oddity of 2012, when the Democrats won the most votes nationwide in House races but still ended up with a minority of seats.
Many analysts incorrectly blame this partisan tilt on the extreme gerrymandering of legislative districts for partisan advantage. While gerrymandering contributes a bit to this bias, its impact is marginal -- the big culprit is single-seat, winner-take-all districts themselves, combined with the over-concentration of Democratic voters. These partisan demographics have made it far easier for GOP map drawers in Georgia, Ohio, Pennsylvania, and elsewhere not only to pack Democratic voters into fewer districts but also to pick off many white Democratic House members and "racialize" the Democratic Party. In 1991, white Democrats held 81 of 133 House seats in the South, but today that number has dwindled to 18 out of 145. This is why some zealous GOP activists have mounted a campaign to award presidential electors by congressional districts instead of on a statewide basis. Doing so would have resulted in Romney winning the presidency, even though he lost the national popular vote by a sizable margin.
This Republican edge also exists in most state legislatures, and it has been consistent for decades. But it was masked by the previous success of Southern Democrats in conservative districts, which was a legacy of Jim Crow and of Democrats being the party of segregation. Today, it's like having a footrace in which one side (the Republicans) starts out 10 yards ahead of the other (the Democrats).
Democratic leaders have tried to address this asymmetrical battlefield by controlling redistricting wherever and whenever they can, but they've had decreasing success as these partisan demographics have become more deeply rooted into the political landscape. Unfortunately for the Democrats, this fundamental dilemma over majority-minority districts strikes at the heart of its identity as a political party. It's to the party's credit that it walked away from its segregationist past and became the party of civil rights, but in 2013 the reality is that majority-minority districts and the continued use of one-seat, winner-take-all districts have painted the Democrats into a corner.
The most mutually beneficial arrangement for the Democrats and racial minorities would be for the electoral system to evolve from the current single-seat blueprint to a multi-seat system elected by proportional representation. With proportional voting, parties win seats in proportion to their vote share -- in a five-seat district, a party winning 40 percent of the vote wins two seats instead of nothing, and a party with 60 percent of the vote wins three seats instead of everything.
Many analysts incorrectly blame gerrymandering for the GOP advantage. But the big culprit is single- seat, winner-take-all districts themselves, combined with the over-concentration of Democratic voters.
17 That would allow minorities to win their fair share of representation without gerrymandering any districts, and to do so without hurting the electoral chances of other Democratic Party candidates. In the South, such a plan would elect more black and white Democrats; it also would enfranchise more minority voters, since in every southern state a majority of the state's black voters continue to live in white majority districts where they have little to no influence. A proportional system would make these voters influential no matter where they live.
Interestingly, the U.S. has not always used single-seat districts to elect House members. In 1967 the Democrats controlling Congress passed a law that mandated the use of single-seat districts for federal House races, both to prevent some recalcitrant southern Democrats from going to statewide winner- take-all elections to dilute the black vote and also as a way to facilitate the gerrymandering of majority- minority districts. Ironically, now it's that very same district-based system that is dragging the Democrats underwater. Passing a proportional representation method looks unlikely in the short term, but it can be done by mere statute without a constitutional change. Rep. Mel Watt, a North Carolina Democrat, introduced legislation to allow states this option not that long ago. Democrats could partially outfox the GOP by embracing Watt's approach and pushing for a "home-rule" option within the 50 states for the use of proportional systems in U.S. House races as a voting-rights remedy.
In the meantime, the GOP must be cackling with glee at the Democrats' dilemmas, even as Republicans champion more majority-minority districts while fighting against every other race-based remedy to historical discrimination. Politics is often like a game of chess -- a very down and dirty version -- and one can't help but conclude that the Republicans are outsmarting the Democrats in this gambit.
18 V. David A. Graham, “How to Win States and Disenfranchise People: The GOP’s Electoral Vote Plan”, The Atlantic, January 23, 2013, accessed December 18, 2014, http://www.theatlantic.com/politics/archive/2013/01/how-to-win-states-and-disenfranchise-people-the- gops-electoral-vote-plan/272456/.
How to Win States and Disenfranchise People: The GOP's Electoral-Vote Plan
A proposed change would radically rework the way presidential voting works and give rural districts disproportionate new clout.
Let's play a game. Let's say, hypothetically, that your party has lost the popular vote in five of the last six presidential elections. Even worse, long-term demographic trends suggest that your chances are only going to get worse. What do you do?
One option might be to revamp your policy proposals, improve the technical operational side of your party, and think about ways to improve your candidate pool.
Or you could try to find ways to make sure fewer people's votes matter.
That's exactly the dilemma facing the Republican Party. And there are some folks who are taking the first path. Senator Marco Rubio, for example, has been outspoken about the GOP's need to do better outreach to minorities. Strategists like Patrick Ruffini want to close the technology gap with Democrats.
But another faction, backed by RNC Chair Reince Priebus, is taking the second route. The idea is to get state legislatures to change the way they allocate electoral votes. Instead of a winner-take-all scheme, which most states use, they want to institute a system where votes could be split between candidates. Now, on face, that might not seem so bad. It would mean that very Republican areas in very Democratic states -- think Orange County, California -- and very Democratic areas in Republican states -- think Austin, Texas -- wouldn't be essentially throwing their presidential votes away.
Certainly, there are longstanding critiques of the Electoral College. Recently they've mostly come from the left. The 2000 election, in which Al Gore won the popular vote but lost the electoral vote, was a galvanizing moment. And there are plans to try to rectify the oddness of the Electoral College. For example, the National Popular Vote plan is a push to get states to sign on to a scheme in which they'd award all their electors to the winner of the most votes nationwide. The plan would only take effect once states representing at least half of the electoral votes have joined, guaranteeing its effectiveness.
So this GOP plan is a smart move, driven by politics but with a result that would better reflect the will of the majority, right? Not quite. Here's the twist: The proposal would award electoral votes based on who wins Congressional districts. (That's already how Maine and Nebraska work, but the two states only account for nine of the 538 total electoral votes.)
From a Republican perspective, this is genius, but it's evil genius. It would allow the party to gain electoral votes in swing states and near swing states like Ohio, Colorado, and Michigan that went for
19 Obama in the last two elections but have large Republican constituencies. But you may also recall that the GOP maintained its majority in the House in November but actually won fewer votes than Democrats did in congressional elections overall. This is because the GOP has been extremely effective at gerrymandering House districts. One reason the 2010 election mattered so much is that the Tea Party wave handed control of redistricting after the 2010 Census to Republican-led legislatures in many states. And they didn't waste the opportunity. Now the lines won't be redrawn again until after the next census, in 2020. For more on this, read Robert Draper's story from the October issue of The Atlantic.
At The Washington Post, Aaron Blake shows how destabilizing these vote-allocation proposals could be to the status quo.
In fact, if every state awarded its electoral votes by congressional district, it's likely that Mitt Romney would have won the 2012 presidential election despite losing the popular vote by nearly four percentage points. (According to Fix projections and data from Daily Kos Elections, Romney won at least 227 congressional districts and 24 states, giving him 275 electoral votes -- more than the 270 he needed.)
In addition, if just the five states mentioned above changed their systems, Obama's 126-electoral-vote win would have shrunk to a 34-vote win -- close enough where a different result in Florida (which Obama won by less than one point) would have tipped the 2012 race in Romney's favor.
And there are even more draconian ideas elsewhere. Dave Weigel, one of the few journalists who's been tracking this movement as it slowly bubbles up nationwide, notes that while most versions of this bill assign the two electors who correspond to a state's senators to the winner of the state's popular vote, the bill that Virginia Republicans have proposed would award them to the candidate who won the most congressional districts. Although the Old Dominion was until recently a comfortably red state, Obama won it in 2008 and again in 2012. Weigel:
Mitt Romney won the 1st (53%), 4th (50%), 5th (53%), 6th (59%), 7th (57%), 9th (63%), and 10th (50%) districts. Barack Obama won the four remaining districts -- the 2nd (50%), 3rd (79%), 8th (68%), and 11th (62%). Had the Carrico plan been in place in 2012, Mitt Romney would have won nine of Virginia's electoral votes, and Barack Obama would have won four -- even though Obama won the popular vote of the state by nearly 150,000 ballots, and four percentage points. So clearly this isn't a plan that would solve the problem of an undemocratic Electoral College. But it is a plan that would forestall Republican demographic doom. Now, whether instituting these laws would be politically viable is a different question. Even if a few states adopted it, it could change the political landscape.
And moreover, the plan would disenfranchise voters. Which ones? Mostly the minority ones in cities who helped Obama win this year. Most urban districts are going to vote Democratic, and most rural ones will go Republican. But if votes are quarantined in a single Congressional district, it doesn't matter if the turnout in a city is 50 percent, 70 percent, or 100 percent; there's only one electoral vote on the table, plus the two at-large electoral votes. This takes almost all the venom out of the formidable Democratic get-out-the-vote operation.
There's a certain nihilism here. One of the major storylines of the 2012 election was voter-ID laws and voting hours. While ostensibly formulated to stop voter fraud, there wasn't much voter fraud to stop, and the changed hours tended to affect mostly poorer and urban (and therefore Democratic) voters. In
20 some cases, Republican officials put the changes in starkly honest ways. A Pennsylvania legislator said a voter-ID law would help Mitt Romney win the state (he was wrong), while an Ohio official said voting hours shouldn't be shaped to accommodate the "urban -- read African-American -- voter-turnout machine." For a variety of reasons, however, these pushes didn't work: courts struck down some laws, and voters were willing to wait in long lines to cast their ballots.
But hey, if disenfranchisement didn't work once, just try it again, right? It's not like the GOP's standing with minority and urban voters can get much worse.
21 VI. Heather Ann Thompson, “How Prisons Change the Balance of Power in America”, The Atlantic, October 7, 2013, accessed December 18, 2014, http://www.theatlantic.com/national/archive/2013/10/how-prisons- change-the-balance-of-power-in-america/280341/.
How Prisons Change the Balance of Power in America
The 14th Amendment, when combined with the War on Crime, has paradoxically disenfranchised vast swaths of the population and given the rural, white areas surrounding the prisons unforeseen political power.
What has it really cost the United States to build the world’s most massive prison system?
To answer this question, some point to the nearly two million people who are now locked up in an American prison—overwhelmingly this nation’s poorest, most mentally ill, and least-educated citizens— and ponder the moral costs. Others have pointed to the enormous expense of having more than seven million Americans under some form of correctional supervision and argued that the system is not economically sustainable. Still others highlight the high price that our nation’s already most-fragile communities, in particular, have paid for the rise of such an enormous carceral state. A few have also asked Americans to consider what it means for the future of our society that our system of punishment is so deeply racialized.
With so many powerful arguments being made against our current criminal justice system, why then does it persist? Why haven’t the American people, particularly those who are most negatively affected by this most unsettling and unsavory state of affairs, undone the policies that have led us here? The answer, in part, stems from the fact that locking up unprecedented numbers of citizens over the last forty years has itself made the prison system highly resistant to reform through the democratic process. To an extent that few Americans have yet appreciated, record rates of incarceration have, in fact, undermined our American democracy, both by impacting who gets to vote and how votes are counted.
The unsettling story of how this came to be actually begins in 1865, when the abolition of slavery led to bitter constitutional battles over who would and would not be included in our polity. To fully understand it, though, we must look more closely than we yet have at the year 1965, a century later—a moment when, on the one hand, politicians were pressured into opening the franchise by passing the most comprehensive Voting Rights Act to date, but on the other hand, were also beginning a devastatingly ambitious War on Crime.
From Voting Rights to the War on Crime
The Voting Rights Act of 1965 gave the federal government a number of meaningful tools with which it could monitor state elections and make sure that states with a particularly grim history of discriminatory voting practices would make no voting policy without its approval. The act had been intended to combat the intimidation and legal maneuvers—such as passage of poll taxes, literacy requirements, and so- called “Grandfather clauses”— that had left only 5 percent of black Americans, by the 1940s, able to vote, despite passage of the 14th and 15th amendments after the Civil War.
22 But the very same year that Lyndon Johnson signed the Voting Rights Act of 1965, he also signed another Act into law: the Law Enforcement Administration Act (LEAA), a piece of legislation that, well before crime rates across America hit record highs, created the bureaucracy and provided the funding that would enable a historically and internationally unparalleled war on crime.
So, at the very same moment that the American Civil Rights Movement had succeeded in newly empowering African Americans in the political sphere by securing passage of the Voting Rights Act of 1965, America’s white politicians decided to begin a massive new war on crime that would eventually undercut myriad gains of the Civil Rights Movement—particularly those promised by the Voting Rights Act itself.
From the War on Crime to Mass Incarceration
Thanks to LEAA and America’s post-1965 commitment to the War on Crime, and more specifically, thanks to the dramatic escalation of policing in cities across the nation as well as the legal changes wrought by an ever-intensifying War on Drugs, between 1970 and 2010 more people ended up in prison in this country than anywhere else in the world. At no other point in this nation’s recorded past had the economic, social, and political institutions of a country become so bound up with the practice of punishment.
At no other point in this nation’s recorded past had the economic, social, and political institutions of a country become so bound up with the practice of punishment.
By the year 2007, 1 in every 31 U.S. residents lived under some form of correctional supervision. By 2010, more than 7.3 million Americans had become entangled in the criminal justice system and 2 million of them were actually locked up in state and federal prisons. By 2011, 39,709 people in Louisiana alone were living behind bars and 71,579 were either in jail, on probation, or on parole. And this was by no means a “southern” phenomenon. In Pennsylvania, 51,638 people were actually locked behind bars in 2011 and a full 346,268 lived under some form of correctional control by that year.
The nation’s decision to embark on a massive War on Crime in the mid-1960s has had a profound impact on the way that American history evolved over the course of the later 20th and into the 21st centuries. As we now know from countless studies, such staggering rates of incarceration have proven both socially devastating and economically destructive for wide swaths of this country—particularly those areas of America inhabited by people of color. This nation’s incarceration rate was hardly color blind. Eventually one in nine young black men were locked up in America and, by 2010, black women and girls too were being locked up at a record rate.
Diluting our Democracy
So how did this overwhelmingly racialized mass incarceration end up mattering to our very democracy? How is it that this act of locking up so many Americans, particularly Americans of color, itself distorted our political process and made it almost impossible for those most affected by mass incarceration to eliminate the policies that have undergirded it at the ballot box? The answer lies back in the 1870s and in a little-known caveat to the 14th Amendment.
23 Ratifying the 14th Amendment was one of Congress’s first efforts to broaden the franchise after the Civil War. A key worry among northern politicians, however, was that since white southerners could no longer rely on the notorious “three-fifths” rule to pad their own political power, they would now try to inflate their census population for the purposes of representation by counting African Americans as citizens while denying them to access the ballot.
So, to prevent any power grab on the part of ex-Confederates, Congress decided to add so-called Section 2 to the 14th Amendment. Firstly it stipulated that any state that “denied” the vote “to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States” would have its representation downsized in proportion to the number of individuals being disenfranchised. Secondly, Section 2 allowed for the disenfranchisement of otherwise eligible citizens— without affecting representation—if they had participated “in rebellion, or other crime.” The idea here was to keep those who had committed crimes against the Union and those who might still be in rebellion against the Union from wielding political power in the wake of the Civil War.
This latter provision of Section 2, however, proved damaging to black freedom—political and otherwise. Almost overnight, white southerners began policing African Americans with new zeal and charging them with “crimes” that had never before been on the books. Within a decade of the Civil War, thousands of African Americans found themselves leased out and locked up on prison plantations and in penitentiaries.
Southern whites, of course, profited from these new laws politically as well as economically. By making so many blacks into convicts, whites could deny them the right to vote under Section 2 without undermining their state’s census population for the purposes of political representation. And, because of another clause of another Amendment, the 13th, which allowed the continuation of slavery for those who had committed a crime, these same white southerners were able to force thousands of newly imprisoned black southerners to work for free under the convict lease system.
Fast-forward 100 years when, in the wake of the Civil Rights movement, another War on Crime began that also, almost overnight, led to the mass imprisonment of this nation’s African American citizens.
In 1974, as the numbers of imprisoned Americans was rising precipitously and when states once again began to disfranchise individuals with criminal convictions, the U.S. Supreme Court was asked in a landmark case, Richardson v. Ramirez, to rule explicitly on the issue of whether it was constitutional under the 14th Amendment to disfranchise those serving, or who have served, time in prison. The court did the same thing that many southern states did after the Civil War—it interpreted Section A of the 14th amendment very, very differently than it was intended to be interpreted. It, too, decided that disenfranchisement would be permitted when a citizen was convicted of any crime, without regard to whether such crimes might be thought of as ideologically analogous to rebellion or were more likely to affect African Americans than others.
Notably, Justice Thurgood Marshall dissented vigorously in this case. The purpose of Section 2, he argued, was clearly to enfranchise, not disenfranchise, former slaves and their descendants. Marshall’s fellow members of the bench, though, felt that their decision would not have any discriminatory effect because the nation already had the Voting Rights Act of 1965 to handle this issue.
24 And yet, the negative impact of Richardson v. Ramirez on African American voting was vast and immediate. By the year 2000, 1.8 million African Americans had been barred from the polls because so many felon disfranchisement laws had been passed in states across the country after 1974. Not only were their votes not counted in that year’s hotly contested presidential election, but by the next presidential election a full ten states, according to The Sentencing Project, had "African American disenfranchisement rates above 15%," which clearly affected the outcome of that contest as well.
By 2006, 48 out of 50 states had passed disfranchisement laws and, with more than 47 million Americans (1/4 of the adult population) having criminal records by that year, the nation’s political process had been fundamentally altered. By 2011, 23.3% of African Americans in Florida, 18.3% of the black population of Wyoming, and 20.4% of African Americans in Virginia were barred from the ballot.
According to sociologists Jeff Manza and Christopher Uggen, not only did African Americans pay a high price for the disfranchisement policies that accompanied the nation’s War on Crime, but so did liberal voters in general. According to their research, such policies “affected the outcome of seven U.S. Senate races from 1970 to 1998 . . . [and] in each case the Democratic candidate would have won rather than the Republican victor” and these outcomes likely “prevented Democratic control of the Senate from 1986 to 2000” as well.
Distorting our Democracy
Disfranchising thousands of voters is only part of the story of how mass incarceration has distorted American democracy. Today, just as it did more than a hundred years earlier, the way the Census calculates resident population also plays a subtle but significant role. As ex-Confederates knew well, prisoners would be counted as residents of a given county, even if they could not themselves vote: High numbers of prisoners could easily translate to greater political power for those who put them behind bars.
High numbers of prisoners could easily translate to greater political power for those who put them behind bars.
With the advent of mass incarceration, and as the number of people imprisoned not only rose dramatically, but also began moving urbanites of color into overwhelmingly white rural counties that housed prisons, the political process was again distorted. In short, thanks to this process that we now call “prison- gerrymandering,” overwhelmingly white and Republican areas of the United States that built prisons as the War on Crime escalated got more political power, whereas areas of country where policing was particularly concentrated and aggressive, areas in which levels of incarceration were, as a result, staggering, lost political power.
Consider research by the Prison Policy Initiative showing how voters across the country gain political power from housing a penal facility. In Powhatan County, Virginia 41% of the 5th Board of Supervisors District that was drawn after the 2000 Census were actually people in prison and in both the First and Third Supervisory Districts of Nottoway County, approximately ¼ of their population comes from large prisons within the county. In the case of Southampton County, such prison-based gerrymandering means that votes of those citizens who live there are worth almost more than twice as much as votes cast in other districts that have the required number of actual residents.
25 In Michigan as well, mass incarceration has meant distorted democracy. A full four state senate districts drawn after the 2000 Census (17, 19, 33 and 37), and a full five house districts (65, 70, 92, 107 and 110) meet federal minimum population requirements only because they claim prisoners as constituents. Similarly in Pennsylvania, no fewer than eight state legislative districts would comply with the federal "one person, one vote" civil rights standard if non-voting state and federal prisoners in those districts were not counted as district residents.
Why We Should Care
As Americans go to the polls this November to vote on criminal justice issues that directly affect our lives—ranging from proposals to decriminalize marijuana, to roll back three strikes laws, to fund more prison construction—the massive carceral state that we are trying to shape at the ballot box has already distorted our democracy. Americans’ power to even rethink, let alone undo, the policies and practices that have led to mass incarceration via the franchise has been severely compromised—in no small part due to the fact that the parties that benefitted the most from the rise of this enormous carceral state are now empowered, seemingly in perpetuity, by its sheer size and scope.
There are, of course, other ways to dismantle the carceral state. Indeed, history shows us that we ended the brutal convict leasing system of the Post-Civil War era not by going to the polls but by grassroots and legal activism. Nevertheless, we should all be concerned about the ways mass incarceration has eroded our democracy. Even if we don’t care about the record rate of imprisonment in this country—despite its myriad ugly consequences, its unsustainable cost, and its particularly devastating fallout on communities of color—when the principle of “one person, one vote” no longer has real meaning in a society, and when political power is no longer attained via its people but rather through a manipulation of their laws, we must all question the future of our nation.
26 VII. Unknown author, “Districting by Pigmentation”, Newsweek, July 11, 1993, accessed December 18, 2014, http://www.newsweek.com/districting-pigmentation-194474.
Districting By Pigmentation
North Carolina's 12th Congressional District straggles 160 miles down Interstate 85 and for most of its length is no wider than the highway. Says a state legislator, "If you drive down the interstate with both car doors open, you'd kill most of the people in the district."
The district was drawn to sweep together enough blacks to guarantee a black member of Congress if all the blacks (a slender 53 percent majority) do as the government obviously thinks they should-vote as a herd. The state drew the district under duress from Bush's Justice Department, which thought it was applying the Voting Rights Act. It is read to require the creation of many "majority minority , districts, the boundaries of which veer hither and yon, gathering in blacks or Hispanics. (Below is Illinois's "earmuff district designed to corral Hispanics.)
Twenty percent of North Carolina voters are black. When redistricting after the 1990 census, North Carolina created one "safe" black district. Not enough, said Washington. Hence the 12th District.
Now the Supreme Court has ruled, 5-4, that the l2th District may amount to unconstitutional racial gerrymandering. Why.? Perhaps whites are denied the "equal protection" right to "race neutral" electoral processes? But the Court has never affirmed any such right, and hardly can without finding the VRA unconstitutional. Justice O'Connor's opinion (joined by Rehnquist, Scalia, Kennedy and Thomas) contains political maxims more convincing than its constitutional reasoning. It is less an argument than an aesthetic recoil from a political act-District 12. O'Connor's opinion sows confusion about what is permitted, or required, by the VRA in the way of racial gerrymandering.
"It is unsettling," says O'Connor, "how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past." Such as Mississippi's "shoestring" district during Reconstruction, which swept enough blacks into one narrow district along the river to leave five other districts with white majorities. Or such as Alabama's redrawing of the city borders of Tuskegee in the 1950s to turn a square city into a 28-sided entity excluding many black voters from the city. However, O'Connor feeling "unsettled" does not constitute a constitutional argument. What should unsettle her, and us, is the many "race conscious" government actions that have brought us to monstrosities like North Carolina's 12th.
O'Connor says the bizarre shape of the 12th is "unexplainable on grounds other than race" and "reapportionment is one area in which appearances do matter." Actually, the 12th District appears compatible with the VRA, as currently construed (or misconstrued), and not incompatible with any constitutional principle of government action that the five justices affirm. They do not affirm the principle that government actions must be colorblind.
Courts have construed the VRA to mean that for blacks and Hispanics the right to vote implies some sort of right to a certain level of desired results: The Act effectively entitles blacks and Hispanics to a certain percentage of congressional seats.
27 O'Connor cites former Justice Brennan's warning that even in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society's latent race consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bears no relationship to an individual's worth or needs." But for two decades the government, responding to the civil rights industry's lobbying for a racial spoils system (always called "remedial"), has made race consciousness not latent but conspicuous in policymaking. And the VRA obviously assumes the "utility and propriety" of basing voting decision on skin pigmentation.
_B_'Categorical representation':_b_O'Connor says that a congressional district that is obviously created solely to effectuate the perceived common interest of one racial group "reinforces the perception that members of the same racial group--regardless of their age, education, economic status, or the community in which they live-think alike, share the same political interests, and will prefer the same candidates at the polls." But the VRA promotes that "perception" as a normative rule. The five justices do not say that an act promoting that perception is unconstitutional. They say only that when redistricting is obviously driven by racial calculations, there must be the "compelling" justification of remedying past discrimination.
The Act implicitly affirms the doctrine of "categorical representation," which holds that the interests of a particular racial, ethnic or sexual group can only be understood, sympathized with, articulated and advanced by members of those groups. This doctrine threatens the core tenet of the nation's public philosophy--the principle that rights inhere in individuals, not groups. That leads to this Balkanizing proposition: group thinking is natural and admirable.
The Court majority offers the muddy suggestion that racial gerrymandering will pass muster if the resulting districts are not too aggressively indifferent to "compactness, contiguousness, geographical boundaries, or political subdivisions." Those are nice attributes of districts but are neither mandated by the Constitution nor respected by the VRA. American politics and law will continue to be disfigured by stains like the 12th District as long as we pursue the chimeric "justice" that is produced by "race- conscious remedies" for race-conscious injustices in the past.
The five justices' sensible political philosophy makes them squeamish about the VRA's promotion of particular racial results. But until the justices are prepared to find the VRA, as currently construed, they, and we, will be troubled.
28 VIII. George F. Will, “The Voting Rights Act at 30”, Newsweek, July 9, 1995, accessed December 18, 2014, http://www.newsweek.com/voting-rights-act-30-184584. The Voting Rights Act At 30
When Sir Arthur Stanley Eddington (1882-1944), the astrophysicist, was asked how many people understood his theory of the expanding universe, he paused, then said, "Perhaps seven." That may be more people than fully understand how we got from the Voting Rights Act of 1965 to the notion that racial gerrymandering is not only virtuous but also mandatory under that Act.
Such gerrymandering to create "minority-majority" electoral districts is the quintessential "outcome- based" racial policy and a provocative political entitlement. The purpose of drawing lines to create districts in which minorities constitute a majority of the voters is to assist, virtually to the point of ensuring, the election of minorities to offices to which they presumably are entitled by virtue of their race or ethnicity. The result is "political apartheid," to use Justice O'Connor's phrase from the 1998 ruling invalidating North Carolina's districting scheme that produced the 160-mile-long district that straggled down Interstate 85 and for most of its length was no wider than the highway. Other racially concocted districts have shapes like road kill -- like raccoons that have had run-ins with 18-wheelers. All such districts rest on the assumption that people of a particular race will and should think and act alike. This assumption undergirds the doctrine of categorical representation, which holds that the interests of people in certain racial, ethnic or sexual categories can be understood, sympathized with, articulated and advanced only by other people in those categories.
The 1965 Act was written to guarantee to blacks the right to vote, a right long denied by many devices such as discriminatorily administered registration requirements or literacy tests, or naked violence.The Act was passed after the civil rights march to Montgomery from Selma, a town where the population was 58 percent black but only 3 percent of voters were black. The Act was a swift success. Between 1964 and 1969 the number of blacks registered to vote in the 11 states of the former Confederacy more than doubled. In 1963 there had been fewer than 100 black elected officials in those states. In 1978 there were 191 in Mississippi.
But in the hands of lawyers who regard legislation as merely the launching pad for litigation, the Act was increasingly construed to mandate government measures to ration political power among certain preferred groups. Amended with opaque language in 1982, it was subsequently read to entitle certain groups to political set-asides -- offices they were sure to win. It was read to guarantee not just each individual's right to vote but certain groups' entitlements to win quotas of offices. It was read to mean that for blacks and Hispanics the reality of the right to vote could be proven only by certain electoral results. Republicans, particularly President Bush's Justice Department, connived at this misconstruction of the Act for partisan advantage: When blacks, who generally are reliable Democratic voters, are swept from many districts into one district, all the districts contiguous to that new "minority-majority" district become easier for Republicans to carry. The liberal transformation of the Act since 1965, recently abetted by cynical Republicans, is one reason Newt Gingrich is Speaker of the House on the 30th anniversary of the Act.
The transformation was somewhat reversed last week when the Supreme Court held, 5-4, that the Act cannot compel what the Constitution forbids. At issue was Georgia's 11th Congressional District, a
29 splatter on the map from Atlanta all the way to Savannah (to within a few miles of Justice Thomas's birthplace in Pin Point). The Court held that the district violates the 14th Amendment's guarantee of equal protection of the laws because race was the "predominant" factor when the state legislature drew the district's meandering lines -- lines that can have no other explanation. Under pressure from the Justice Department, which was supporting the ACLU's "Max-Black" plan to produce a third black majority district, Georgia's Legislature subordinated to racial considerations such traditional race-neutral districting principles as compactness, contiguity and respect for political subdivisions and communities defined by actual shared interests.
Justice Kennedy, writing for the majority and joined by Justices Rehnquist, O'Connor, Scalia and Thomas, detected in Georgia's districting "the offensive and demeaning assumption" that voters of a particular race will, because of their race, have the same political preferences. But to give Georgia its due, the state did not claim to be acting to implement any theory, such as categorical representation, or to remedy past discrimination. It did what it did just to get the Justice Department off its back. Makes you wonder why it is called Justice.
Justice Ginsburg, joined in dissent by Justices Stevens, Souter and Breyer, correctly notes that legislatures have often been respectful of ethnic bonds in drawing district lines that produce such entities as are routinely referred to as "the predominantly Italian wards of South Philadelphia" or a "Polish district in Chicago." But what the dissenters elide is the distinction between somewhat trimming a district's lines to conform to a compact racial or ethnic community, and drawing race-driven lines to create an illusory political "community" that the organic life of society has not created.
The creation of "minority-majority" districts expresses the ideology of "identity politics": you are whatever your racial or ethnic group is. But that ideology, promulgated by political entrepreneurs with a stake in the racial and ethnic spoils system, is false regarding the facts of human differences, and bad as an aspiration and an exhortation. Furthermore, such districts are bad for the public weal because they reduce the incentive for politicians to form coalitions by reaching across racial lines.
Last week's ruling will make the Justice Department and courts less involved in allocating political offices by predetermining election results. As a result there may be fewer "minority-majority" districts. But that does not necessarily mean there will be fewer minority members of Congress. One of Speaker Gingrich's loyal soldiers in the House is J. C. Watts, a freshman from Oklahoma's fourth district. Watts is black. Only 7 percent of the fourth district is black. Obviously the people of that healthy district have not embraced the principle of categorical representation.
30 IX. Steve Coll, “Building a Better Democracy”, The Economist, January 9, 2013, accessed December 18, 2014, http://www.newyorker.com/news/daily-comment/building-a-better-democracy. Building a Better Democracy
Media narratives of the fiscal-cliff negotiations and the upcoming debt-ceiling brinksmanship often seem premised on the idea that the American people have voted for a divided government and are demanding that President Obama and the Republican House split their differences in a responsible bipartisan bargain, grand or otherwise. But what if the voters, properly understood, haven’t actually sent such a message?
Obama won the popular vote by a comfortable margin and secured a second term in the White House. That same day, more Americans voted for Democratic Senate candidates than Republicans; this led to the inauguration, last week, of a Senate led by Democrats. And a million more Americans voted for Democratic candidates for the House of Representatives than voted for Republican candidates. Yet the new House has a thirty-three-seat Republican majority.
There is one main reason for the electoral anomaly in the House: gerrymandering. Every ten years, following the decennial census mandated by the United States Constitution, state governments redraw legislative and congressional districts. Republicans have done well at capturing statehouses in recent years, even in states that have gone Democratic in Senate and Presidential votes, such as Virginia. In some of these states, Republicans have redrawn district lines with ruthless self-interest to ensure that voters elect the maximum conceivable number of Republicans to the House.
Organizational theory and common sense would suggest that both major political parties engage in such shenanigans equally, when given the opportunity. That may be so over long periods of time; there is no especially convincing reason to ascribe to the Democratic Party any self-effacing idealism about getting its people elected. And yet, in a series of compelling posts recently, the statistical election-modeller Samuel Wang, of the Princeton Election Consortium, has argued that we are in an “asymmetric” period of Republican manipulation of electoral maps.
According to Wang’s math, twenty-six seats out of the thirty-three-seat Republican advantage in the House can be attributed to gerrymandering in states with legislatures controlled by Republicans. He estimates that, in 2012, the number of American voters disenfranchised by this mapmaking—that is, the number of voters whose ballots were effectively rendered meaningless by various forms of stuffing Republican majorities into safe districts—was in the neighborhood of four million.
Even without gerrymandering, by this estimate, the November vote might have produced a Republican majority in the House. But the margin would have been so narrow that Democrats would have been able to get bills passed if they could hang together and get a handful of defectors from the other side.
Also, because many of them run in super-safe conservative districts, Republican congressional candidates often fear radical-right primary challengers more than the Democrats they will face in the general election. So they vote against taxes and for spending cuts with an adamancy that voters in more competitive districts would not long countenance. This ornery radicalism now threatens to produce shutdowns of the federal government. House Republicans refuse to raise the debt ceiling, and the
31 Obama Administration will run out of tricks to remain under that ceiling some time around March 1st. This would be a frustrating episode of governance to endure even if it were fully legitimized by a truly democratic election. Yet the House Republicans’ check on Obama’s power is not truly democratic; indeed, it is based on extreme ideas that would be marginalized if not for the creative drawing of districts.
Of course, nobody can unseat the Republicans who have been clever enough—or lucky enough—to win seats through gerrymandering, even if they are serving constituents in districts that, from a bird’s-eye view, look like a figure eight or a stick figure. Gerrymandering is unseemly, even illegitimate, but it is not usually illegal, and court reviews around the country have upheld some crazy-looking district maps.
The question here is not, What if Democrats ruled the world, free from Republican perfidy? No large political party in a money-fuelled, patronage-protecting electoral system such as ours can be best understood as an entirely moral entity, or as inherently righteous. (Within living memory, at least for some of us, the Democrats were the party of Jim Crow and the escalation of indiscriminate aerial bombing in Vietnam.) If the question of voter disenfranchisement that Wang highlights is framed only as the disenfranchisement of our side, then the issue is not really about disenfranchisement in a constitutional or political-theory sense; it is about electoral competition, in which disenfranchisement is just a tactic.
A better form of the question might be, If voters were fully enfranchised, unburdened by gerrymandering, how would legislating and politics be different—or, perhaps, better? As it happens, this is not a theoretical question. There are embryonic experiments in redistricting reform currently underway.
In 2010, California voters approved a ballot initiative that empanelled a somewhat randomly selected commission of ordinary citizens to redraw legislative and congressional districts as their common sense guided them. The result went forward in the 2012 election cycle and it had disruptive consequences. At the time the commission acted, Democrats controlled the California legislature—without this good- government band of citizens redrawing maps, Sacramento Democrats would surely have protected their own. But the citizens’ commission forced two long-serving Democratic congressmen from Southern California, Howard Berman and Brad Sherman, to run against one another; Berman, the able chairman of the House Foreign Affairs Committee, lost. At the same time, however, Democrats stormed to a super-majority in the California legislature. Citizen-drawn maps had a role in that, too.
The result is that California no longer has divided, gridlocked government, as it has had for the past decade. It has a Democratic governor, Jerry Brown, and in the legislature the Democrats are fully in charge. Will they solve the state’s yawning fiscal and educational crises? Possibly—probably—not. Yet, for the first time in years, the Democrats will be fully accountable to voters for California’s governance. If they fail, everyone will know whom to blame.
At the national level, there are reforms bubbling around to ensure greater democratic enfranchisement and accountability. The most important, championed by my colleague Rick Hertzberg, is a movement to ensure that no President is ever again elected without winning the national popular vote. Lashing the electoral college’s outcome to the national-vote total would destroy the distorting concept of “swing states” and enfranchise Republican voters in California alongside Democratic voters in South Dakota.
32 Another idea—possibly within reach in this Congress—is to eliminate the filibuster in the Senate. That would end the distorting sixty-vote super-majority threshold, which misuse of the filibuster has created. It would increase the power of the current Democratic majority in the Senate but assure that the next Republican majority would be more powerful, too.
Then there is the redistricting itself. If the California citizen-led experiment and a few others like it work over the next few years, reformers who have previously spent their money and time fostering failed third-party Presidential candidacies in a broken system might be drawn to a national campaign to stir a citizens’ revolt against the system itself—to end gerrymandering.
The result would a more partisan, more decisive, and more inclusive system of national government. It would likely be less predictable and less stable, and perhaps even a little dangerous. Absent public- financing reforms, it would probably generate even higher levels of election spending by private interests than 2012’s record levels, because during Presidential elections, every vote in every state would matter. Yet it would be more accountable, more decisive in the punishment of failure and the rewarding of success. And it would be more democratic. Surely, it could not be worse than what we have.
33 X. Jens Erik Gould, “California versus the Gerrymander: Why Republicans are Quaking”, Time, July 19, 2011, accessed December 18, 2014, http://content.time.com/time/nation/article/0,8599,2083189,00.html. California vs. the Gerrymander: Why Republicans Are Quaking
Redistricting. The word doesn't sound exciting. The dictionary doesn't spice it up too much either: "to divide anew into districts; specifically: to revise the legislative districts of." To the average person, this might be the "single least interesting word in the English language," says Dan Schnur, director of the Jesse M. Unruh Institute of Politics at the University of Southern California. "But if you're a politician, those lines are a matter of life and death."
And so it is in the U.S.'s most populous state, where efforts to redraw the political map may mean Republicans will face more peril than their counterparts in the next elections. Some analysts predict the changes will cost them seats in the U.S. House, which would help Democratic efforts to win back control of the body next year. They say Democrats may increase their majority in Sacramento as well.
A 14-member citizens' committee in charge of the effort has an Aug. 1 deadline to submit its final version of how California's new districts will look in the 2012 election. The independent committee, known as the California Citizens Redistricting Commission, comprises a wide range of people including business owners, professors and even a chiropractor. It's a new venture for the state, which took the task away from lawmakers after they used to draw lines that helped keep incumbents in power, gerrymandering bizarrely shaped district maps for political advantage. The committee's mission is to refashion district lines in a nonpartisan way that reflects the demographic changes the state has seen in the past decade, including an increase in Latino residents and a population shift inland from the coast.
Matt Rexroad, a Republican consultant in California who has run numerous campaigns, says a draft released last month by the commission suggests Republicans may lose as many as five seats in the U.S. House in 2012. Incumbents who had relatively safe districts may find themselves in areas with more Democrats and independents, especially because of the expansion of a Latino population that tends to oppose Republican candidates.
That may have an important impact on Washington, Rexroad says. "In California, because of the demographics of the state, it's highly likely that there will be fewer safe Republican seats in Congress. It's really a question of the magnitude of that number: whether it's one or two or five," says Rexroad, who is also a partner at political consulting firm Meridian Pacific. "A net swing of five is critical for the outcome of the speakership and tight votes on debt limits and all kinds of other things." This means that to have a chance, Republicans who find their seats threatened will need to run campaigns that target Latino, female and young voters more than they have in the past, Schnur says.
Still, Democrats shouldn't claim victory just yet, says Bruce Cain, director of the University of California Washington Center. There's no guarantee that the committee's final plan will be the same as their draft, especially after special interests, including Latino groups, blasted it for not giving Hispanics enough influence. "We really don't know what the final lines are because the commission is bouncing all over the place trying to satisfy angry groups that objected to the first set of lines," Cain says. (The
34 commission's preliminary lines were released in June.) Democrats may also fail to gain from California's redistricting if the economy worsens and unemployment remains high, especially since their incumbents will also have to cater to new residents who don't know them as well, he says. "A lot of people have a lot of newly configured territory," says Cain, who helped the legislature redraw district lines in 1981. "In that first election after redistricting, incumbents are most vulnerable because they're not as well known."
What seems most certain is there will probably be more nail-biting races next year than the yawns we witnessed when lawmakers gerrymandered the districts in the past. That should make for a more exciting election season with candidates targeting more swing voters. "This forces politicians of both parties to be much more responsive to the voters," Schnur says. "And that can't help but to be a good thing."
35 XI. Megan Friedman, “Voting: Is Your Ballot Really Secret?”, Time, July 16, 2010, accessed December 18, 2014, http://newsfeed.time.com/2010/07/16/voting-is-your-ballot-really-secret/. Voting: Is Your Ballot Really Secret?
An investigation by the Associated Press found that if you live in New Mexico and a few other states, your election data could be compromised.
Ballot secrecy is a central principle of American democracy, and yet, according to the report, gerrymandering and political campaigning have compromised this for hundreds of voters.
In smaller precincts with single-voter turnout, it’s possible to identify who voted for whom by cross- checking ballots with public records. If you were the only person who voted in your precinct during a smaller election, it would be possible to determine how the precinct – meaning, you – voted, therefore violating your voting privacy. The state also divides voting results in precincts by types of ballots, so privacy might be threatened if you were the only person to vote absentee in your precinct, as well. In New Mexico, there were at least 370 single-vote precincts during the Republican and Democratic presidential primaries in 2008.
Why the breach? Politicians have demanded detailed voting information for campaigns and redistricting purposes. Though this is certainly a controversy, it is statistically rare, because few states break down voting by type of ballot cast. Plus, some states attempt to keep voting secure by merging the voting results from small precincts. This way, states can keep your vote your own business.
36 XII. Fareed Zakaria, “Will He Fight or Compromise?”, Time, February 18, 2013, accessed December 18, 2014, http://content.time.com/time/magazine/article/0,9171,2135713-1,00.html. Will He Fight or Compromise?
Obama has a chance to use the will of the majority to break the deadlock
One of the great political debates in Washington--and around the country--has been about whether Barack Obama is a highly partisan Democrat bent on a liberal agenda or a centrist searching for compromise. It's still early in his second term, but he has recently made moves that seem to answer the question. Obama could easily choose a partisan strategy that would be politically effective: Don't make deals with the Republicans on immigration or entitlement reform, and go into the 2014 congressional elections with those problems still live. A deal on either front would allow Republicans to share credit and, most important, take the issue off the table. With no deal, Democrats could campaign as the guardians of Medicare and advocates of immigration reform, both electoral winners. For this reason, some Democratic Senators have begun to make demands well beyond what Republicans can accept.
But Obama has chosen the second path. In late January, as soon as a group of Republican and Democratic Senators joined forces behind a unified approach to immigration reform, Obama signaled his support for it. And this week, in urging Congress not to allow the so-called sequestration process to force massive spending cuts, the White House said Obama's budget proposals to House Speaker John Boehner were "very much on the table." Those proposals include entitlement reforms that arouse immediate opposition from Democrats. Obama might be doing this because he wants to notch some legislative accomplishments and leave a legacy. Even if that's the case, the strategy might be good not only for Obama but also for the country.
The real question is, Will anyone follow him? Is Washington so polarized and dysfunctional that it will not be able to find a way to pass any compromise package on these--or other--issues?
There are many who argue that Washington, rather than being broken, simply represents a country that is deeply divided. If so, the issues at hand should provide a useful set of tests. Thumping majorities of Americans support immigration reform. Some 72% say undocumented workers should be given green cards or citizenship. A similar percentage wants to give more visas to high-technology workers. A solid majority opposes the sequestration cuts. On gun control, large majorities favor some commonsense controls: 85% of Americans support universal background checks; 80% support preventing those with mental illnesses from buying guns; 58% and 55%, respectively, would ban semiautomatic and assault- style weapons. Interestingly, even on energy policy, large majorities want more action. Seven out of 10 favor higher emissions and pollution standards; 69% want more funding for wind and solar energy.
In a large, diverse democracy, these are substantial national majorities. But will they translate into legislative majorities in Washington? If not, it suggests there is a real disconnect between the country and its capital.
In a recent set of posts on the Washington Post's invaluable Wonkblog, George Washington University scholar John Sides argues that the problem with Congress is not gerrymandering, as so many (including Obama) have maintained. It is instead that the political parties have become more ideological, nudged in
37 part by local party officials, who impose more-stringent litmus tests for candidates on spending, taxing and social issues. I would add to those factors the need for endless fundraising and today's partisan media, which also feed this process, though I would not discount gerrymandering. Many forces have created the current political system.
If Washington can tackle some of the outstanding issues facing the country, it could create a virtuous cycle. The American economy is recovering. The housing market is slowly re-emerging and will boom again as America's population grows over the next few decades. The energy revolution is lowering costs for manufacturing while adding jobs in the energy sector. America's financial sector is in better shape than those of most rich countries. And American households have rebuilt their balance sheets; our savings rate today is higher than that of frugal Canada. A new Congressional Budget Office report has deficits returning to precrisis levels in a few years.
We don't need a grand bargain. Even moderate reform--on immigration, gun control, energy policy and (most difficult) the budget--would give a powerful boost to the country, beyond the specific economic impact. Politicians could demonstrate that they can actually govern. Everyone would get some credit. America would have found its center.
38 XIII. Joe Klein, “It’s Not Race, It’s Longevity”, Time, August 2, 2010, accessed December 18, 2014, http://swampland.time.com/2010/08/02/its-not-race-its-longevity/. It’s Not Race, It’s Longevity
I have a certain weakness for Charlie Rangel. He’s a stone, flat-out war hero–his service in frigid Korea, during a terrible moment in that war, in an Army that was just learning how to integrate (in other words, an institution that was still racist in many ways)–has always earned him some extra tolerance from me, even if his brand of politics was classic, troglyditic inner city cronyism. I’ve also loved his gravelly New York accent–he’s family!–and his flash dress and his sly sense of humor (and his insistence on the restitution of the draft, so that rich and upper middle class kids help bear the brunt of the fighting in America’s endless wars–or, by using their class-based megaphone, end them).
But he’s a crook. No getting around it. And his brand of politics–the Harlem Clubhouse patronage and condescension machine–has, arguably, diminished the chances of success, and increased a culture of dependency, for many of his constituents over the past 50 years.
I know less about Maxine Waters–but I do know she’s cut from the same political cloth as Rangel and, at times, has been prone to make extreme racialist statements. But, as with Rangel, the most important thing about Waters isn’t her race, it’s the fact that she is perpetually unchallenged in her district. Rangel and Waters are exemplars of the greatest problem facing our Congress–and therefore our democracy– which is the high-tech gerrymandering of safe seats on both sides of the aisle. That is why they don’t give a fig about the Democratic Party’s fate in the fall. They haven’t had to trim their sails to meet the challenges of real democracy.
Imagine what sort of legislator Charlie Rangel would have been if his district ran north to south– incorporating Manhattan’s ritzy Upper East Side–rather than East to West, keeping him safe in Harlem. A different one–a more creative and responsive one–to be sure. And then extrapolate that across the breadth of the Congress: more than 15 years ago, I wrote a column about how inner city blacks and suburban Republicans in Georgia had colluded to create a map after the 1990 census that created safe seats for themselves, and destroyed those districts where Representatives (white Democrats, mostly) had to appeal to both constituencies to win. Cynthia McKinney, then a Congresswoman from Georgia whose seat had been carved out in the deal, accused me of racism. But the truth was that the deal– which her father, a power in the state legislature, helped to cut–had created a net gain of safe Republican seats.
Now we’re on the cusp of another redistricting. State legislators across the country will be using sophisticated computer programs across the country to do violence to natural geography, to create districts that look like spiders and neural clusters, in order preserve the fiefdoms of the current incumbents. The process will reinforce the sense of entitlement, and racial politics, of people like Rangel and Waters; it will increase the likelihood that suburban Republicans need only to play to the Tea Party know-nothings in their districts. It will increase the polarization and sense of gridlock–and anger–across the country.
It would be nice if we had a national legislature that was mapped out rationally, according to natural geographic borders. It would be, I believe, the most direct path to a political system run for the benefit
39 of the public, rather than for the regal longevity of its politicians. But, absent a Supreme Court ruling that strikes down racial gerrymandering, I don’t see that happening.
40 XIV. Adam Cohen, “Is This the End for the Core of the Voting Rights Act?”, Time, February 27, 2013, accessed December 18, 2014, http://ideas.time.com/2013/02/27/is-this-the-end-for-the-core-of-the-voting-rights- act/. Is This the End for the Core of the Voting Rights Act?
As the Supreme Court considers a new challenge to the 1965 Civil Rights law, questioning by conservative Justices suggests one of its central provisions may soon be struck down
At the Supreme Court argument Wednesday on the Voting Rights Act, Justice Anthony Kennedy – likely the deciding vote – had two potentially devastating words for those who want to see the landmark voting rights law upheld: “Times change.” It can be perilous to try to predict what the court will do based on the questions the Justices ask at oral argument. But those questions suggest that there may well be five votes — a majority — for striking down key parts of the act.
The Voting Rights Act was enacted in 1965 to ensure that black voters in the Jim Crow South were allowed to cast ballots. In the 48 years since, it has been a tool for the federal government to prevent states from racial gerrymandering — drawing district lines to stop minorities from getting elected — and election-day obstructions, like moving polling places at the last minute in minority neighborhoods.
Conservatives have long been at war with the Voting Rights Act. They argue that it gives an unfair preference to minority voters, infringes on states’ rights, and is an abuse of power by Congress. The case the court is considering, Shelby County v. Holder, challenges a key part of the act: section 5, which requires all or part of 16 states to “pre-clear” changes with the Justice Department to ensure that they do not unfairly burden minority voters.
Going into the argument, the court’s four most conservative Justices were all-but-certain votes against section 5, and that seems just as true now. At the argument, Chief Justice John Roberts — who has expressed skepticism about the Voting Rights Act for decades — took up the line being pushed by Shelby County, Alabama: that the act unfairly puts a heavier burden on southern states (even though it also covers some northern jurisdictions). Chief Justice Roberts asked: “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?”
Justice Antonin Scalia — as is his wont — was less subtle. He called the act “a perpetuation of racial entitlement.” Justice Alito echoed Chief Justice Robert’s concerns, asking why Congress did not make a “new determination” about which states and localities should be covered. Justice Clarence Thomas did not ask any questions — his longstanding practice — but four years ago he voted to strike down the act, and it is all but certain he will again.
The seeming solidity of those four conservative votes makes Justice Kennedy’s skeptical stance potentially decisive. At the argument, he said he saw the Voting Rights Act as “utterly necessary” in 1965, but it was now “not clear” to him. He added: “The Marshall Plan was very good, too — the Northwest Ordinance, the Morrill Act – but times change.”
41 The court’s four more liberal Justices used their questioning to underscore the reasons why the act is still needed – and why Congress had ample constitutional authority to enact it. Justice Sonia Sotomayor told the lawyer for Shelby County that even if parts of the South have changed “your county pretty much hasn’t.” Justice Stephen Breyer compared the racial discrimination that created the need for the act to a disease, and said that things may have changed to some degree “But we know one thing: the disease is still there in the state.” All these four liberal Justices can do without a fifth on their side, however, is write a dissent.
Cases do not always come out the way they appear headed in oral argument. Justice Kennedy, or one of the other conservative Justices, may ultimately balk at striking down a key part of a revered civil rights law that has been enacted repeatedly by Congress with bipartisan support. In the end, the court may use this case to give the Voting Rights Act a ringing endorsement. But right now, that is probably not the smart bet.
42 The articles by The Economist were openly published during the research process. However, a subscription to The Economist is now – June 29, 2015 – needed to display the full articles. This of course is an incredible inconvenience for this appendix. All articles can be accessed through the following URLs:
http://www.economist.com/blogs/democracyinamerica/2013/10/gerrymandering
http://www.economist.com/blogs/economist-explains/2013/10/economist-explains-17
http://www.economist.com/blogs/democracyinamerica/2010/11/evils_gerrymandering
http://www.economist.com/blogs/democracyinamerica/2010/06/gerrymandering
http://www.economist.com/node/18836108
http://www.economist.com/blogs/democracyinamerica/2012/11/congressional-representation-0
http://www.economist.com/blogs/democracyinamerica/2013/08/texas-and-voting-rights-act
http://www.economist.com/blogs/democracyinamerica/2012/03/fixing-democracy
43 Appendix B. Map of Granville County commissioner districts.
1
1 Source accessed May 14, 2015, http://www.granvillenc.govoffice2.com/vertical/sites/%7BF819B1A2-6E50-4666- BDD0-AE938210631C%7D/uploads/Revised_Commissioners_Dist_3_11_13.pdf.
44 Appendix C. Own calculations: North Carolina prison data and SPCOP.
All data on state prison capacities comes from: https://www.ncdps.gov/Index2.cfm?a=000003,002240, accessed May 7, 2015. Inmate population comes from: https://www.ncdps.gov/Index2.cfm?a=000001,002148, accessed May 7, 2015. Federal inmate population comes from: http://www.bop.gov/locations/institutions/but/, http://www.bop.gov/locations/institutions/buf/, http://www.bop.gov/locations/institutions/btf/, http://www.bop.gov/locations/institutions/buh/, all accessed May 7, 2015.
Carteret Correctional Center (inmate capacity 300) Craven Correctional Institution (inmate capacity 796) Eastern Correctional Institution (inmate capacity 429) Greene Correctional Institution (inmate capacity 616) Hyde Correctional Institution (inmate capacity 736) Maury Correctional Insititution (inmate capacity 896) Pamlico Correctional Institution (inmate capacity 552) Pasquotank Correctional Institution (inmate capacity 896) Tyrrell Prison Work Farm (inmate capacity 620) Bertie Correctional Institution (inmate capacity 1400) Caledonia State Prison Farm (inmate capacity 1038) Central Prison (inmate capacity 752) Franklin Correctional Center (inmate capacity 452) Johnston Correctional Institution (inmate capacity 612) Nash Correctional Institution (inmate capacity 512) Neuse Correctional Institution (inmate capacity 788) Odom Correctional Institution (inmate capacity 352) Polk Correctional Institution (inmate capacity 904) Tillery Correctional Center (inmate capacity 472) Wake Correctional Center (inmate capacity 414) Warren Correctional Institution (inmate capacity 809) Columbus Correctional Institution (inmate capacity 670) Hoke Correctional Institution (inmate capacity 502) Lumberton Correctional Institution (inmate capacity 768) Morrison Correctional Institution (inmate capacity 801) New Hanover Correctional Center (inmate capacity 384) Pender Correctional Center (inmate capacity 740) Sampson Correctional Institution (inmate capacity 452) Scotland Correctional Institution (inmate capacity 1652) Tabor Correctional Institution (inmate capacity 1402) Albemarle Correctional Institution (inmate capacity 816) Brown Creek Correctional Institution (inmate capacity 1204) Caswell Correctional Center (inmate capacity 460) Dan River Prison Work Farm (inmate capacity 620) Davidson Correctional Center (inmate capacity 258) Forsyth Correctional Center (inmate capacity 248) Harnett Correctional Institution (inmate capacity 954) Lanesboro Correctional Insititution (inmate capacity 1400)
45 Orange Correctional Center (inmate capacity 200) Piedmont Correctional Institution (inmate capacity 952) Randolph Correctional Center (inmate capacity 226) Sanford Correctional Center (inmate capacity 298) Alexander Correctional Institution (inmate capacity 1180) Avery Mitchell Correctional Institution (inmate capacity 816) Caldwell Correctional Center (inmate capacity 238) Catawba Correctional Center (inmate capacity 246) Craggy Correctional Center (inmate capacity 408) Foothills Correctional Institution (inmate capacity 858) Gaston Correctional Center (inmate capacity 242) Lincoln Correctional Center (inmate capacity 230) Marion Correctional Institution (inmate capacity 738) Mountain View Correctional Institution (inmate capacity 884) Wilkes Correctional Center (inmate capacity 262) Fountain Correctional Center for Women (inmate capacity 510) North Carolina Correctional Institution for Women (inmate capacity 1288) North Piedmont Correctional Center for Women (inmate capacity 136) Southern Correctional Institution (inmate capacity 624) Swannanoa Correctional Center for Women (inmate capacity 366)
Total capacity state prisons: 38379
Inmate population: 33169 Federal prisoners: 5538 State prisoners:27631
SPCOP: (27631/38379)*100% = 71,9951015%
46 Appendix D. Interview Peter Wagner, interview by Wijnand Kuijs, Skype, May 1, 2015.
Profile Peter Wagner
Peter Wagner is an attorney and the executive director of the Prison Policy Initiative, which he co- founded in 2001 in order to spark a national discussion about the negative side effects of mass incarceration. His early publications and work for Prison Policy Initiative started the national campaign against prison-based gerrymandering; making him on the pioneers in this field of work. In the following years Wagner and Prison Policy Initiative broadened the scope of their work by also focusing on other forms of criminal justice reform,2 and by popularizing the debate and Interviewinformation about prison-based gerrymandering. [WK] 3 Hi Peter, thank you for taking the time to talk to me. As you know I have already sent you my questions in advance, so that you would be given some time to read up on them and prepare anything if necessary. I’m not sure if we will cover them all, given the time, but anything we can [PW]cover will already be of tremendous help.
[WK] Yes of course, no problem at all. Where do you want to start?A person neither establishes nor loses legal residence in a state solely by reason of being imprisoned there. While a prisoner is not absolutely precludedThe fromNorth proving Carolina that State he orResidence she has changed Manual stateslegal residence, that: ‘ a person’s domicile generally is not changed by involuntary confinement in a penitentiary or other prison, and in such cases, the former domicile remains. As a practical matter, it is extremely difficult for a prisoner to demonstrate a change in legal residence since a prisoner cannot perform most of the actions indicating domiciliary intent and since any declarations of intent must be weighed against the fact that the prisoner is confined against his or her will.
’ Yet for redistricting purposes, prisoners are counted as residents of the district their correctional confinement is located at. How is this possible if state regulations say [PW]otherwise?
I am not familiar with this residence manual, could you send that to me? It does sound very similar to the language used in the state statute. Remind me to send that document to you too. Or [WK]better yet, I will right now, I am going to send you the state statute.
[PW] Okay thank you.
Which says basically the same thing. Their residence..the statute I sent you is about registration and voting; I’d say that’s the same as redistricting. Some people might cripple on that, but not terribly credibly. And those are the statutes on residence; a lot of states have those and most are in the same language, and if they’re not in the same language they boil down to the same principals. I have no idea why this residence manual was created; regulations typically have much more interesting stories as to why. So that said, not knowing anything about that, we have an expression here about one hand not knowing what the other hand is doing.
2 3 “Staff”, Prison Policy Initiative, accessed June 28, 2015, http://www.prisonpolicy.org/staff.html. In this transcription [WK] will be used for Wijnand Kuijs’ parts of the interview, and [PW] for Peter Wagner’s parts. 47 [WK]
[PW] Yeah.
[WK] That applies here.
Okay, so you genuinely think that those involved with redistricting itself are either unaware [PW]or turn a blind eye to these regulations that states write down?
[WK] Yeah.
[PW] Wow.
And when they start, because.. I’d say these three things: they don’t know, they choose not to know, or they say ‘well I don’t know what I can do about that’. And, that last one is important because it’s things like these regulations and other statutes that then become one of the prime reasons that people decide to fix this. And the way I look at it is very colloquially: these statutes and what these residents’ manuals and so forth all say is that: every time a smart person sits down and thinks about the question where an incarcerated person resides they come up with the same answer. But you don’t think about it and you get the CD-Rom from the Census Bureau..and that’s [WK]what you get.
[PW] So it’s more of a practical matter?
[WK] Yeah..and especially at the local government; these folks are overwhelmed.
Okay, something different for my second question: would you argue that this current situation in which prisoners are being counted as residents of a prison, rather than at their former [PW]address, is a violation of prisoners’ rights?
Eh..is it? Yes, although I don’t know how much; the harm is very indirect. The people who’s rights it dilutes much more clearly is their family, their friends, their loved ones, their neighbors, and it also dilutes the votes and rights of people who live elsewhere in the state but just not near a prison. But when you get down to thinking about the county level, or the school board level, there… I don’t know if it violates prisoners’ rights if they use them as pawns in this internal fight to ..what are you [WK]doing, Granville County?
[PW] Yes.
Yes like, they are being used as pawns, but I’m not sure that’s really relevant; I don’t know if [WK]they lose anything. Everybody else in the county does, but they don’t.
Yeah I was just thinking that even though they don’t lose something tangible themselves, usually human rights or prisoners’ rights are not necessarily something tangible, but more of a concept. Therefore I thought that since every prisoner except the ones in Maine and Vermont are not allowed to vote anyway it doesn’t affect their votes, but it does effect the votes of their former communities and obviously also the other communities within a state or county or other types of districts. Which led me to think that maybe this can be considered a violation of prisoners’ rights, because whatever is being done to them right now – counting them in the district where they are being incarcerated – goes against state statutes and regulations, so that is in conflict with one another. 48 [PW]
I mean it could be, as a philosophy question. As a political question or as an organizing question it doesn’t get you anything. Because incarcerated people are a group that has negative political clout. Like, being on the same side of prisoners puts you worse off than you were before. Or for the same matter, having prisoner support on your bill is worse than no support at all. So thinking about how to use that argument is something I haven’t done too much thinking about, [WK]because as a practical matter it doesn’t seem to add up; there’s easier things one can do.
That makes sense. Continuing then; shifting the focus from the problem to possible solutions. The ones that benefit most from this are those that represent local districts that include prison facilities, and their reasons for not stepping up against it seem kind of logical and obvious due to the political clout that their voters gain from it. However, on the national, or probably even state-wide, level the phantom constituents that inmates form as a non-voting bloc barely have any noticeable influence on the distribution of districts and votes, because they are so much smaller than let’s say a Congressional district. Why are there so few national politicians then, that step up against prison- [PW]based gerrymandering? Since it wouldn’t harm them directly if they would get rid of it.
Let me answer the last part of your question first and then let me go back and challenge one of your hypotheses earlier. There is a bunch of reasons why there has not been a lot of work nationally done on this by national election officials, and part of it is that our movement has been trying to keep this away from Congress. And it’s in part because even before this Congress, Congress was not known for being helpful on Census issues, and again..it’s partially criminal justice issues, it’s complicated.. It’s easier to organize people to oppose reform on this issue, because the misinformation spreads faster than the good information. So, we have historically been not really trying to keep Congress out of this, so but we’ve not been making it easy on Congress to get involved. Like, not getting out of our way to get urban representatives to work on this, because they don’t need to. Although, in the case of Representative Clay [……] the Census Bureau concession on 2010 […] We were going to publish the Census Bureau data early, that was of most value to local governments. But Representative Clay – who’s an African American from St. Louis – prioritized it because it was something that he could do to – I’m going to use an American football expression – move the ball. It was something he could get from the Census Bureau at the last minute, and there is only so much you can get at the last minute, but that’s what he could get. But standing up against it nationally doesn’t get you that much. So..that will change; the impact is greatest at the local level of government. And that’s very hard for members of Congress to understand; they are very focused on themselves and their own districts, therefore thinking about state legislative districting is difficult for them and thinking about city councils in rural areas is over their heads. The state Senators at least remember being a county official, or if they at least talk to county officials on a regular basis life is good. So that’s the other thing. The other thing is that historically, actually for the most part, almost everybody that wraps their head around it as a local official – around the problem of prison gerrymandering – opposes it. There is a bunch of stories from Oneida County and the city of Rome, NY where the newspaper does the story and they talk to somebody like ‘hey your district is 50% prisoners, you have twice the electoral power of people in other parts of the city’ and the person’s response is ‘oh my god, I didn’t do it, I’m not involved, that doesn’t sound fair’. Because that’s so extreme that they have to admit that it’s not fair. Yet on the other hand, the state Senator from that region who’s district is 3% prisoners will fight to the nail to maintain that influence, even though it’s much smaller. Because somehow it’s not obscene; it’s helpful but not obscene. And I never figured out how to explain that, so if you can…
49 [WK]
Haha, no guarantees there. Following up on that question.. the recent “victories” so to speak in the reforms of prison-based gerrymandering – NY for instance as a state that signed a bill (to outlaw prison gerrymandering) – what do you think it can be attributed to? Has awareness among “the people” increased, or has pressure by prisoners’ rights activists increased, have politicians [PW]become more willing to work towards change, or is it a combination of all three factors?
I think it is all of those, and it’s that people worked really really hard and that in Maryland and NY it was possible to do this; the facts were very compelling in those states. With the government.. the biggest reason not to pass a bill is the question of ‘why now?’. And here our answer was ‘because if you don’t do it now, you’re going to have to wait ten years’. Because with most things it’s like tomorrow is as good as today. And the other one is because it wasn’t just criminal justice people; it was the good government people. It was other sectors that really got involved in it; it [WK]really insisted upon it. That’s why.
So you would say that the general public, or the average day working man, in America also has an increased sense of what prison-based gerrymandering is and why they should be against it, [PW]compared to let’s say ten years ago?
Well yes, but we’re living in a country in which most people don’t know what gerrymandering is, most people don’t know what districting is, so prison gerrymandering is a pretty heavy lift to explain. On the other hand – I always loved this – there was a college poll – linked on our website, it’s somewhere if you search for is – where they actually surveyed people and explained what prison gerrymandering is in two sentences and they asked people what made more sense: count prisoners here or there. And it was very clear in the result that people were interested in fairness. But there is not a lot of literacy about these issues, even among elected [WK]officials; most elected officials could not explain redistricting to you.
[PW] That’s kind of sad..
[WK] Yeah! Although they are generalists..but that is sad yeah.
I also found it pretty hard to find sufficient literature on the topic at first. I started out with the whole project just focusing on gerrymandering itself, and then once you dig deeper and you get into prison-based gerrymandering the academic literature becomes less available; it’s not covered [PW]very well.
[WK] Yeah it’s pretty new.
I’m not sure whether you can go into depth into this following question, but do you think that prison-based gerrymandering impacts counties that are racially polarized in their voting behavior more, less, or do they not differ at all from counties that do not suffer from the same racial [PW]polarization in voting behavior?
[WK] So, you are talking about at the county level government?
Yeah, because I found out that Granville County (NC) is a highly racially polarized county as far as voting behavior goes; last elections basically all African-Americans voted Democrat and more or less all white Americans voted Republican within that county; and it was (therefore) dubbed a racially inelastic county as far as election outcomes go. And therefore, the question that came to me
50 was whether prison-based gerrymandering impacts those counties more or less than the ones [PW]which are not as polarized between two races.
Okay I’m going to say I don’t know, because there are lots of ways to cheat at the ballot box. Gerrymandering is one style of cheating, and prison-based gerrymandering is one option within that toolbox. And if you are going to cheat having all the options you can, I don’t know. Let me go backwards and then forwards. We have always been looking for places like Somerset County (MD) where there is what we call a false majority-minority district. We have spent like 8 years looking for that place. And most places are not that crazy. And Somerset happened by accident. So the story really quickly: in Somerset they didn’t have districts, they set the Votings Rights Act lawsuits to create districts and draw districts. One district is drawn so an African-American community can elect candidate of their choice, but due to bad luck a white guy gets elected. Then almost immediately a prison is opened in the district, then the Census is taken and they redistrict again. And that splits the black community into two pieces, and they end up in this false district and the [WK]incumbent is there for 20 years. And getting rid of incumbents is very difficult.
[PW] Yeah I read that nowadays there is a 96% incumbency rate.
Yeah, that sounds about right yeah. So I have been looking for other places like this and most places, when drawing majority-minority districts, are not this crazy. And also most places where majority-minority districts are important are in places that were covered by the VRA; which also generated a whole lot more supervision. So that’s my saying like I don’t know but I haven’t seen any examples of it, but I can also introduce you to Chris Ketchie at the Southern Coalition for Social Justice; he’s the data person there. And I don’t remember if Granville was on a county list that they were actively monitoring or not, but he might know something. Their priority is really state redistricting and then key counties where African Americans are not getting the representation that they need in county government. And then they do side things like prison gerrymandering, but they prioritize it if there is a direct overlap. I don’t know the specific story about Granville, but he’s a good person to talk to. Or just to say like ‘hey I’m doing this big picture research, I found something and Peter said you might find it interesting and if you are tracking this follow up question – if not don’t worry about it – maybe you’ll make a friend this way that’ll be able to tell you something you [WK]don’t know.
That sounds perfect, thank you. Okay, I’ll go to the next question. So Granville County has seven commissioner districts, with all inmates incarcerated in the third commissioner district. This district has 5000+ inmates that form a very large portion of the district’s counted population, which stands at 9000-. Therefore obviously, the political clout of the constituents in the third commissioner district is incredibly high in comparison to constituents in the other six districts. But numbers aside, how does this increased political clout show itself in a practical sense, in everyday life? Are there examples of this increased political clout that can be witnessed in the everyday life of [PW]the people in the third district and those in the others?
This is the great challenge for local governments. Let me answer this in a big picture; like not just this county. It is really hard to prove because most decisions don’t come up for a vote unless they’re going to pass. That’s very true at the state level and at the local level, and if you ask people ‘do you think the government is listening to you?’ they’re going to say no regardless of whether or not their clout is enhanced by a prison, because everybody feels like they are ignored. But – and this might also been a struggle to explain for a while – every now and then you see a really rare example of where there is a really clear regional dispute in a community that also makes sense to people on the outside. Like in Franklin County, NY which is shaped like this [shows Franklin County, NY], the 51 prisons are all in the northern half which is also a little bit poorer; the wealthy half is the southern half. If you include the prison in the apportionment page the northern half of the county will dominate the county. And then the decision: the state in the 80s wanted to be another prison; they wanted to bulldoze these beautiful mountains in the southern half, which were also important not only to the rich people and their view but to the tourism industry up there, would have been bulldozed to put up another prison and that would have been the end of the tourism industry. So in part prison gerrymandering was about fairness, but it was also about this regional tension. And a regional tension was of interest to me, about the future of criminal justice policy in the state. And that’s also why we did a lot of work in NY, because we were tying the prison gerrymandering to the Rockefeller drug laws. But often it’s very difficult to tie political decision to districting. Especially to prison gerrymandering. That doesn’t mean it can’t be done, but this is always very difficult and part of it also has to do with the kinds of things that the Supreme Court asks for in their cases. There is this famous redistricting case named ‘Whitehorse” about Montana. By creating individual districts allowed Native Americans to be represented on the county commission. But it also was about jobs. Which actually was also true about Somerset County, MD. Not electing African Americans to citywide office is why there were almost no African Americans with any county jobs. But proving that requires a whole lot of research into the history of Granville County politics and what decisions [WK]mean what.
[PW] And probably any evidence you might find is a very indirect link?
Yes. But I get lucky when I see stories, when I see the community itself tell the story that way. In Green County, NY a bunch of commissioners tell the story like ‘oh we decided not to include the prison because if we would we would have allowed […] to dominate the county’. They use some numbers to tell this story that I actually don’t think make any sense. He would have had 4 members instead of 2. Like, that’s not really right. But they are right in the principal of it. It’s one of those [WK]history is written by the victors scenarios; that makes it a little tricky.
And political decisions aside, do you see examples of the increased political clout in the way taxes are redistributed or how school districts receive their funding? Can you witness unfairness in those cases? Let’s say a district with all the prisoners – which is obviously home to a lot less actual citizens due to the prison population, and therefore to less children probably – yet the school districts all receive the same amount of funding; therefore the prison district receives more funding [PW]per capita?
The funding is often tied to pupils or something, either directly or indirectly. But you see things like the example of school district RSU-13 in Rockland, Maine where prison gerrymandering gave one town about 10% more power. While that was not fair, the subtext was: the school board was going to close a middle school. Which one are they going to close? Not the one that is closest to the town with the prison. But it was just 10% more out of like 7 people, but it was just another little […] on the scale. That the people that were particularly interested in the middle school issue really lived under prison gerrymandering. But it’s tough to find those; they are really hard to find. In NY it took me a year to settle on the Rockefeller drug laws. So it would take a long time to learn the history of any of these counties. And then half the people in the county would argue if you were [WK]right about your decision.
As far as the way that prisoners are counted now versus the way that would be an ideal scenario - either excluding prisoners entirely from local redistricting or counting them at their last known address – do you think a different set of rules should apply for state versus federal correctional facilities or should we just use the same set of rules for both? 52 [PW]
It’s better to use the same set of rules, but if the choice is partial solution over no solution I’m for partial solutions at which I would point to reallocate just federal prison population from the state house districts – Kentucky made this decision. The Senate didn’t go along, so that’s where it stopped. But that was better than not at all. You also look at this with reallocation; some people you are not going to be able to reallocate, but Maryland’s data was 22.000 people better than it was last [WK]time.
So if you had to choose between either reallocating federal prisoners or state prisoners you [PW]would choose the federal prisoners?
Well federal is easier but your impact is bigger typically from state prisons. But it makes less sense to count people from other states in the wrong state. It really kind of depends; because I don’t [WK]think I’mOh everno, obviously asked to choose not. in the abstract.
[PW]
But if we would have to go with a partial solution versus no solution it quickly boils down to either one, and both have its pros and cons. Although like, it would also depend on why you would have to choose partial solutions. Like what if the federal government won’t give you the information about reallocation but the state will. That’s maybe relevant.
[WK]I said I had half an hour but I can actually give you like 10 to 12 more minutes.
Oh great, thank you. Would you argue that there are enough checks and balances currently to [PW]keep prison-based gerrymandering from becoming an even bigger problem?
Checks and balances? No. Because there is basically three people who do all the things, working in a small apartment in rural Massachusetts, trying to keep tracks of districting in 50 states, 3300 counties, and 52000 local jurisdictions. And trying to empower a handful of other people, like Chris Ketchie who I was talking about. So no. And it all happens in a 18-month period. [WK]So no no no no, not at all.
That’s a very clear answer. Then my next question; regarding the link between prison-based gerrymandering and a prison industrial complex. Since the increased political clout due to prison- based gerrymandering is most noticeable at the local level, this could potentially mean that communities that live close to a prison would likely have a stronger per-person influence on matters related to the prison and prisoners’ daily lives than the people in the neighboring districts. Therefore they would definitely benefit from holding on to, or even increasing, their political clout, and one way to do that would be to press for an enlargement of the existing prison or the construction of a new one. Do you think is link is actually there, that prison-based gerrymandering [PW]strengthens the prison industrial complex?
It does. I think it does; I gave you the example of Green County, NY and Franklin County, NY about the fights whether to expand a prison. Economic reality is, for a local community; once you get a prison the only other kind of development you will be able to get in the future is another prison. And it’s another thumb on the scale of that process, because the community that is closest tied to the prison; the people closest to the district line are more influenced, so that’s bad. But, the bigger problem though is the state prisons. Which local governments can influence by the grade in which they push for prison expansion, or resist it. But the big decisions are made at the state 53 legislature. And that seems to be pretty clear, that there is a benefit that it’s a thumb on the scale of the prison system. It’s harder to prove in some states than others due to term limits and turnovers [WK]and things, but the impact is biggest at the state policy level; the state legislative level.
And my last general question; what difficulties do you stumble upon with PPI when you [PW]address the problem of prison-based gerrymandering?
Biggest difficulties, it’s the ‘why now?’ and getting people to understand how their own [WK]government works. Like, that is a pre-requisite problem.
[PW] And how about any resistance from local governments?
Sometimes, it depends on what level. Sometimes local governments freak out and say ‘oh my god, you’re trying to take something from us’, and then it becomes this discussion of ‘what’. We’re not trying to change your funding formulas. Are we trying to decrease the […] are we trying to ensure you have fair elections locally? Which they typically support. But are we trying to […] on your additional on-earth influence in the state legislature? Yes! But that is typically not what they openly defend. I mean, occasionally they do, but usually not. Because it’s unseemly to directly argue that you should retain something you stole; whether you stole it intentionally or not. It just kind of unseemly. It is much better to talk about something else, or make this complicated argument about how we subsidize the prisons. So that’s not fair; and we’re going to make it up at the ballot box. That is a little less offensive. But again, in NY and MD those bills passed because urban and rural people [WkindK] of spoke out together on it. They formed a coalition against it.
Yeah I do remember one local politician in NY whose district was heavily influenced by the prison in it and who answered to the question whether he considered the prisoners his constituents [PW]‘Well no, because if they were allowed to vote they wouldn’t vote for me anyway, most likely’.
Ah that’s Dale Voker. Yeah he continued to fight the Rockefeller drug laws publicly, and he never supported ending prison gerrymandering but he would not speak to the press about it. Because he came across in that interview like a “white devil slave master”, which is not – even in an all-white district – how you want to come across. But some of his other colleagues that were less politically savvy would say thing almost as stupid. And you saw in NY that until we ended prison gerrymandering upstate NY spoke with one voice about prisons; rural and urban people together. And that was in part because prison gerrymandering spread out the influence of prisonsour into the districts that didn’t have any prisons. And now we are starting to see upstate people – legislatives – publicly talking about prisons are not good for our community; prisons are not good for community. Maybe they are good in your part [WK]of the world, but our world needs are different. [PW] So why they voice that feeling? The ones with prisons would mostly support the prisons, but the ones without prisons are now heard about their specific needs instead of being crushed or turned into prison districts. The [WprisonK] gerrymandering bumps the power over.
Well thank you, I think this covers my questions. There was one that was very specifically about Butner, but it might not be the most important question now due to its incredibly specific nature. Therefore it is not necessarily representative of other places. I was going to ask if it would make sense to split the town of Butner up among two commissioner districts, since all the prisonsrd in Granville County are located in Butner? It would decrease the increased political clout of the 3 54 district by splitting the prison population, but all decisions about Butner and its residents would be [PW]made by two commissioners who might not agree. (splitting after taking prisoners out of count).
I don’t know; that is so specific. Redistricting is all about the trade-offs and knowing the [WK]reality of that community. And I don’t know.
Yeah, that is what I figured – and feared. I think I have all that I need. So let me start by saying thank you for taking the time to speak to me and shedding your light on the subject matter. I am really grateful for that. If there is anything I can [PW]do for you with this please feel free to let me know, and I’ll be happy to help.
No problem, happy to help! Let me know if I would need to follow up on anything I said or on any of the links and articles I sent you. And please send me your paper once it’s finished, I’d be very interested in reading it.
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