Should Partisan Gerrymandering Be Outlawed? Posner

The term “gerrymandering” refers to a political tactic that in the United States goes back to the eighteenth century—the tactic of configuring electoral districts to favor the party that does the configuring, or to achieve some other non-neutral political goal: for example, reducing minority representation in the legislature by drawing district boundaries in such a way as to pack most of the minority voters into a handful of districts, thus minimizing the number of legislators whom they can elect. The Supreme Court held racial gerrymandering unconstitutional—a violation of the equal protection of the laws—in 1960. But the Court has refused to hold that “partisan” gerrymandering, which means configuring districts so as to favor the party that controls the legislature doing the districting, is unconstitutional. 

Article I of the Constitution provides in section 4 that “The Times, Places and Manner of holding Elections for ... [members of the federal House of] 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.” The Supreme Court has required, in the name of equal protection of the laws, that congressional districts must have approximately the same number of people in them (“one man, one vote”). But this leaves a state legislature free to draw the district boundaries in a way that favors one party over the other. Take Illinois, a state that is entitled to have 18 Representatives in Congress (plus of course two Senators, but Senators are elected statewide, so the issue of gerrymandering does not arise for them). Illinois's eighteen congressional districts have virtually identical populations, as required by the “one man, one vote” rule. The City of Chicago is strongly Democratic, but the suburbs tend to be Republican. If the Republicans controlled the Illinois legislature (they don’t), they could, without altering the population size of any district, redraw district boundaries in the Chicago area either to pack the city residents into as few districts as possible in order to minimize the number of districts that would elect a Democratic Representative, or to spread them out into as many districts as possible, where they would be in a minority and so wouldn’t elect any Representatives. Or the legislative majority could combine these tactics: compress as many city residents as possible into a few districts, and place the others in districts in which they would be outnumbered by Republican suburbanites. For a real-world example, an article called “The Great Gerrymander of 2012,” by Sam Wang, www.nytimes.com/2013/02/03/opinion/sunday/the-great-gerry‌mander-of-2012.html?pagewanted=all&_r=0 (Feb. 2, 2013), points out that “in the seven states where Republicans redrew the districts [in advance of the 2012 national elections], 16.7 million votes were cast for Republicans and 16.4 million votes were cast for Democrats. This elected 73 Republicans and 34 Democrats”—a much higher ratio of Republican to Democrat Representatives than of Republican to Democratic voters. In Ohio for example Republicans won 75 percent of the House seats with 51 percent of the votes. In Maryland and Illinois, where the legislatures were controlled by the Democrats, the figures were approximately reversed. In California, where the legislature had turned redistricting over to a nonpartisan commission, there was no significant discrepancy between the two percentages. 

It seems hard to square the results of partisan gerrymandering with “one man, one vote.” It’s true that even in the absence of such gerrymandering, a person who belongs to a minority party in a district shouldn’t, from the standpoint of efficacy, bother to vote in a House race, because his vote will have no effect on who is elected to be the Representative from that district. But the minority voter’s political impotence is attributable to majority preference, a result implied by democratic political theory, while in the 2012 election Democratic voters were in the majority in some states in which, nevertheless, more Republicans than Democrats were elected to the House, and vice versa, a result brought about by partisan gerrymandering and in tension with democratic political theory. 

Theory apart, partisan gerrymandering is objectionable because by creating safe congressional districts and thereby reducing political competition it reduces compromise in the House of Representatives. This is true with both “packing” and “spreading” the opposition voters. If the result of “packing” those voters is to create say a solidly Democratic district, the Representative will have no incentive to appeal to Republican voters in the district; there are few of them; he doesn’t need them; and for him to try to attract some of that small number might anger his core constituents. If the result of spreading Democratic voters is to create solidly Republican districts, the Representatives of those districts will similarly have little incentive to try to appeal to Democratic voters. The result is political gerrymandering is thus increased political polarization in the House of Representatives—which has been observed. 

I can’t see any social benefits from partisan gerrymandering--nor any difficulty (other political opposition--though that is difficulty enough) in eliminating it, either by requiring that districting be delegated to a nonpartisan commission in each state (the California model) or by programming a computer that will create districts of equal population that are geometrically compact—as near as possible to circular, consistently with the need to equalize the population of the districts and respect certain limitations on perfect symmetry that are imposed by geography: one doesn’t want a district line to divide a house. 

The only argument I’ve seen in favor of partisan gerrymandering is that it makes partisan voters happier—their Representative does not have to muffle his extreme views (or those of the voters of his party) in an effort to pick up some votes from members of the other party. So the voters whose candidate wins are happier but the losers—who in the 2012 election at least were more numerous—are unhappier. Gerrymandering that has such consequences is not a utility-maximizing practice.

Comments

[NexLex]

Judge Posner, while I completely agree with your analysis and proposed solutions, there may be an even better option, though it’s likely even less to come to pass in the current legislative environment: expand the House significantly and redraw the districts accordingly.

The benefits would go beyond fixing gerrymandering. Smaller districts would better mirror true community boundaries, and Representatives would be more likely to vote in accord with their constituents’ preferences. You’d probably see the resurgence of citizen legislators rather than professional politicians, and It might even result in the two-party deadlock being broken – some smaller districts would surely elect candidates from third-parties. Just as significantly, it would dramatically reduce the influence of money, lobbyists and special interests since the value of each vote would fall.

Obviously neither expanding the House nor eliminating gerrymandering through legislation are likely to occur on their own any time soon. For either to come to pass, both parties would likely need to see something to be gained for them in the future. And unlike expanding the House, gerrymandering could potentially be eliminated by the courts. Nonetheless, expanding the House was normal and expected in America until roughly a century ago, and it would go a long way toward correcting not only the problems you identified with gerrymandering, but several other structural issues in modern American politics.

[Stevesturm]

Another argument in favor of partisan gerrymandering is that it results in fewer voters being represented by someone of the 'other' party.

Imagine a district that is 80R-20D, and another district that is 20R-80D. Fully 80% of the voters in each district are represented by someone who is more likely to share their values and only 20% are stuck in enemy territory. If, on the other hand, the two districts were each split 50-50, then half of the voters are stuck with a representative they more than likely disagree with.

I would also like to point out that just as complaints over the filibuster were less about the actual process and more about Democrats not getting enough of their nominees passed, so too are complaints about gerrymandering. The 'problem' isn't that districts are split one way or the other, it is that the representatives aren't voting in the way someone wants them to vote.

[James Gualtieri]

Perhaps I'm overly cynical of members of the House, but the current way districts are drawn seems like the perfect equilibrium for representatives whose chief priority is re-election.

[Thomas Rekdal]

Ethnic gerrymandering will either expand or contract their representation depending on the size of that population and its distribution throughout the state. Concentrating a large ethnic population in as few districts as possible will minimize their representation. On the other hand, concentrating a small ethnic population will expand their influence by guarantying them at least some representation. The same is true of partisan gerrymandering.

Having a computer design districts will not eliminate these consequences; it merely makes it more likely that no one crafted them. The only way to "maximize the utility" of voter preferences in the sense that Judge Posner has in mind would be to adopt some system of proportional representation. But the advantages of that system over single-member districts is not obvious enough to make the effort worthwhile, particularly if the change is to come about through five members of the U.S. Supreme Court rather than a constitutional amendment.

[Jack]

Stevesturm, as I'll write more about in a minute it's FAR more difficult to protect against Gerrymandering than most including the Judge imagines.

The trouble with your 80/20 in each is that you've created "safe" districts for two turds to spend their careers and more as "representatives". Now, sometimes that may be the "right thing" as it may be the 80/20 R reps the farming district while the 80/20 D reps a cohesive urban district and may not be a result of Gerrymandering.

The classic "gerry" with an R in the Gov's chair would be to redraw so some of the "wasted" R's can help knock out the D, or best of all to run for an empty seat after the perhaps popular D has retired.

BTW........ I'd agree with you that there are problems with "51% takes all" and never more than when FL was so evenly divided that the "winner" would have been decided on "votes" well beyond the margin of error of any decent means of counting them, much less the flaky stuff that resulted in counting "chads" and coming up with the Jews for Buchanan groundswell.

The most accurate message from FL was "We're so divided that our vote shouldn't even count..... or should be divided in half. But in our deal a one vote majority, ha! even if it's that of a Clarence Thomas, means winner take all, which is this case was the biggest and most costly mistake "the voters?" have ever made in our nation.

[Jack]

Well, Judge you're right in their being NO benefit to a democratic process in Gerrymandering.

To get our terms down, we're not speaking of the case/problem, say of ethnic minorities "happening" to be clustered in one district when the best effort was made to comply with the criteria put forth for drawing a district.

No, Gerrying, as has been done blatantly in Anchorage and Alaska in recent years, is the Gov of one party "getting away with" using the census to redraw in such a manner that two popular Reps of the "out" party are pitted against each other, while an "empty seat" is "created" in the next district that contains a fairly well known member of the "in" party.

Ha! sometimes it doesn't work. In one case the popular Rep (D) opted to go up and run for the Senate seat (and won) rather than duke it out with a fellow party member or flip a coin as to who was going to politely stand down.

BUT! with the best of intentions it is a tough, tough problem. Here as in many states we have criteria like "contiguous" "similar" "same number of people" and we are or were one of the states still having to comply with Voting Rights dictates.

What happens here and in many others states like Alaska with a few large population centers and vast rural areas, is HUGE rural districts (to get the numbers) or mixing a bit of the urban with the rural, or coastal etc.

So "even a computer" which we use extensively, is going to draw wildly shaped districts and SOMEONE has to program the criteria into the computer. Ha! AFTER we do this with a kinda, sorta "bipartisan" commish, just "slightly" tilted to favor the wishes of the Gov we........... go to court. And back to the drawing board. And....... to court, until it is time for the election.

Stevesturm has a good point too. For example a blind and tone deaf computer might lump the farmers of Salinas with Silicon Valley techies and urban SF'ers. Can, or should, one Rep have to know about Ag and water? chips and mansions, dealing with a crowded and mature SF? In an unchanging district, a generation ago the artichoke grower would be the power, and today up against San Jose millionaires they may be nearly an ignored minority "in the way" of more mansions and estates.

Fun stuff: In one Anchorage district we had a Rep win by ONE vote, and in a rural areas stretching from Bristol Bay down the Aleutians -- and area larger than Oregon, we had a deadheat, decided by our laws, a coin toss. So above all, rigged or not VOTE!

[Jack]

NexLex: I too have considered more Reps and smaller districts and LESS power per possibly egotistic maniac.

But LOTS of problems. Were we to gradually increase the number say 10 to 20% the big state like CA, TX, NY would pick up 3 to 6 more while 20% would not be enough to add even one more to Alaska or say a third to some state having two Reps.

Arguably that outcome is great as the small states have so much more power (per capita) in the Senate.

In any case like changing the Electoral College it would take an amendment that would be very unlikely to pass.

[NexLex]

Jack, what's great about expanding the house is that it actually would *not* require an amendment. The Constitution only states, "the number of representatives shall not exceed one for every 30,000," and Congress routinely used to legislatively increase the number of representatives until the 1920s.

I would argue, as you pointed out, that giving the larger states more say is a good thing. In fact, that's sort of the point: large populations are currently underrepresented in the House. This would help fix that.

[Thomas Rekdal]

NexLex is surely right on the constitutional point about expanding the House of Representatives. There is nothing in the Constitution to prohibit the Congress from doing this by ordinary legislation.

But there is surely a practical limit on the size of a legislative assembly we should create. The larger the body, the more power gravitates to those who control its agenda. I would be opposed to further expansion on that ground alone.

[Terry Bennett]

The U.S. is not a perfect melting pot. There are lots of lumps in the ore. People tend to cluster with others with whom they identify, whether by race, religion, culture, wealth, political disposition, or even affinity for a sports team - and everybody knows where the boundaries are. Thus, if we were to simply superimpose a grid of equal squares upon the map, we'd tend to get some heavily Democratic and some heavily Republican districts anyway. The sin of the gerrymander is that it's dirty pool: sometimes an attempt to unite a group of people, and sometimes an attempt to dilute them, but always a diversion of the fair course of events.

What seems to have gone unnoticed is that in 2014 A.D. we have computers, which the Founders did not, and as I have written elsewhere, there are lots of ways to achieve more accurate representation with what is now rudimentary information technology.

For instance, let's send the top two vote-getters in each district to Washington. Each Representative will carry a number of votes equal to how many votes he or she got back home. A typical House vote of the future, instead of tallying 290-to-245, might tally 86 million-to-48 million, much more true to the Founding vision of a house of "representatives", now that we have the means to achieve it.

We can go a step further, and have voters rank candidates instead of just picking one. Of the two who win, whichever one gets ranked higher on a given individual's ballot gets the strength of that vote. Thus, everybody is represented by somebody they esteem more highly than the other guy from their district.

District size and district boundaries both become irrelevant, and everybody is represented, even if your candidate doesn't win. Suppose every district sends one R and one D, each carrying the exact weight of the numbers of D's and R's in their district. (This would also encourage 100% voter participation, because even if your district is a landslide, your vote still counts.) If your district has a million voters, maybe the Democrat gets 550,000 and the Republican gets 450,000. When they get to Washington, that's how many votes they each cast. Another district of 200,000 may send 120,000 R votes and 80,000 D votes to Washington. Under the current system, those 450,000 R's and 80,000 D's are unrepresented, but in the new system they'd be counted with perfect granularity. It no longer even requires the districts to be of equal size. The dream of one voter one vote is realized.

There are plenty of variations of this scheme, and plenty of other benefits. One appealing ramification is that if every district has two representatives, the competition for your allegiance is palpable all the time, and Representatives are likely to be more responsive to the sentiments of the folks back home. If your guy loses the election, you aren't left out of the process for the next two years. You can get access via the also-ran / also-won.

In fact, third-party participation is likely to increase. It may be difficult for a third party to win, but it's much easier to come in second, and get a seat at the big table.

Of course, never gonna happen, but it's not a can't; it's a won't.

[Thomas Rekdal]

Terry, what you are defending is a version of proportional representation, which, as I suggested in an earlier comment, is a better way to "maximize the utility" of voter preferences (to borrow Posner's terms) than single-member districts.

But the chief virtue of PR is also its chief drawback. If you think the country suffers from political paralysis now, just wait until every nuance of the left-right spectrum is reflected in the House of Representatives.

Eventually, some constellation of interests must govern. I think this is more likely to happen in a winner-take-all single member district system. But even that is no guarantee, as you can see from the daily news.

[Terry Bennett]

Thomas,

1) I don't particularly care if we do it; I'm just saying it's quite feasible to defeat gerrymandering in this way if is a sufficient problem. For that matter, it is even feasible now to disband Congress and put every bill to the voters directly.

2) I think political paralysis is exactly what the Founders were going for. I'm observing it, but as a moderate I'm not sure we're "suffering" from it. I suspect either side would be capable of inflicting an even more unpleasant tyranny given full reign.

[Neilehat]

It's called Hard Core Politics. "To the Victor goes the spoils". Or to put it another way, "We've got the Power and we aim too keep it".

To eliminate "Gerrymandering" will require a fundamental change in Man's or Woman's basic Human Political Nature - GOOD LUCK!

[Phillip Helbig]

Yes, gerrymandering is bad and a caricature of democracy. Yes, it wouldn't be that difficult to improve it. But even the best system of elective representatives for districts is far, far, far worse than proportional representation. I honestly think that any nation which calls itself democratic and doesn't have proportional representation is as hypocritical as the communist "democratic" dictatorships.

[Jack]

There's been a good discussion but mostly we've strayed from the Difficult problem of Gerrymanering to the even more difficult subject of better representation with many suggestions favoring more proportional representation. But PR doesn't seem to be the original, almost inspired intent. But would PR be an improvement?

I doubt it. Consider, we do get one shot at what is nearly a one man one vote exercise in electing our President. The result? Small or predictable states are virtually ignored. But suppose we tossed the Electoral College in favor of a straight across national popularity contest. Better? Probably not as the campaigns could more easily and cheaply turnout voters in the cities and suburbs than traveling to HA, AK or working the rural areas..... except for the occasional photo opp with a "valued" farmer.

Probably most would agree that having two Senators per state regardless of population is more or less as it should be. After mentioning farmers, we'd not want the Senate to be as heavily skewed to the populous coastal states as is the population.

So then the House? While it is tempting to have more, ha! perhaps even one to be seen in the district AFTER being re-elected. But then how many does it really take to rep a district, understand and convey its issues? Perhaps Alaska is as tough as any state, but on our big issues of fisheries, our lone Rep can work with WA, OR and sometimes the N/E guys, or on oil all the other oil states.

The environment? Ha! Mostly no one home. But were an oil state to have another Rep? is it likely she is going to be a charter member of the Sierra Club? Nope.

And what about swapping a 435 member House for 700? 435 seems small enough for finding those interested in an issue or being allies in one caucus or another, but much larger? As someone suggested, at some size does it all descend to an "audience" and a few with the mic, with the choices for many being only "ayes or nays"?

I don't see much to be gained. But Gerrymandering? by a powerful Gov of a big state where success might mean five or more seats that could tilt the House to the dark side? Bad stuff.

And the biggest of biggies that's really a topic for another day is the moneypower dimension. IF we can't get a handle on that mess we'll sooner than later lose what remains of our democratic republic and continue down the road to again being serfs to the most powerful corporate castle owners and their minions that could make any number of "electeds" dance to their tune.

[Neilehat]

Jack, I prefer "my solution" to the "Gerrymandering" problem: Remember, "Get out and Vote and Vote often" and don't forget my pint... ;)

[Thomas Rekdal]

Phillip Helbig is a man after my own heart. He focuses on one issue--the representative system that would most faithfully reflect the current state of public opinion, and finds proportional representation far, far, far better than anything else.

If that is the one thing needful, of course he is right. I, on the other hand, tend to worry about other things. In particular, keeping demagogues and redistributionists out of my wallet. Old Sarum and the property qualification hold a special place in my heart, but, alas, those days are gone forever. So I shall take the single member district as my consolation prize, and if a little gerrymandering can be sprinkled on top, so much the better.

[Jack]

Ha.. thanks Neil, GOTV is the crucial element that has saved us from some real disasters in the last two elections. Umm, has the pint been passed around here 'bout 8:30?

[Jdwalton]

The gerrymandering also prevents "upstarts" from challenging incumbents in their own party, to the point that only incumbents who are ready for the glue factory are primaried.

Slightly OT -- perhaps the best thing which we could do to fix Congress would be to go back to making the State legislative bodies elect Senators. Popular election of Senators has just created an entrenched political class, something Madison warned about.

[Neilehat]

Jack, 08:30? Nah... during Election time it runs 24-7. Just go down to the local Tavern and check in with the Precinct Captain. In my Congressional District (the 13th), we just sent our first Democrat to Congress since the days of the "Wigwam" up on Wacker/Lake and the founding of the Republican Party in the backrooms/standup bar of the Berghoff. As the times have changed, so the Party has changed, and it has become time, too think anew and act anew" - so much for "Republican" "Gerrymandering"... ;)

[Neilehat]

Slight correction, I was just reminded that it's no longer the 13th District, but is now the 11th District. So much for "Gerrymandering" to increase Republican influence...

[David Friedman]

Let me offer a suggestion for a way of constraining the process that draws district boundaries in order to make it more difficult to gerrymander, taking advantage of modern technology.

Any districting proposal must take the form of a computer program. There is a reasonably tight limit on the program's length in order to make it harder to construct a program that "just happens" to produce a result favoring one party. There is a further restriction on the input data that can be used. Town boundaries and geographical features such as rivers are legitimate inputs. Past voting figures are not. Data likely to correlate with voting patterns, such as income, race, family size, and age distribution are not. Population density can be used only to constrain the program to produce districts that are all the same size.

This is a sketch, not a proposed statute, but I think something along these lines ought to be doable.

[Neilehat]

Dave, And so ... We can all become watched over by "Machines of Loving Grace". As for myself, I prefer the old "Human System", even with it's inherent flaws. As the old Cybernetic Rule states, "Things might be screwed up, but to really screw things up takes a Computer". Case in point, the "Affordable Health Care Act"... ;)

[Sequel]

It is kind of interesting to wonder what would happen if a state were to simply decide that no congressional districts at all would be drawn. All voters would have the chance to pick =/< [total number of seats].

Or to allow residents to choose which district they wish to vote in. There seems no compelling reason to force people into congressional districts, or to force candidates to limit their accountability to an artificially-selected piece of the state.

Logistically, both have problems, but then gerrymandered districts seem to producing more extreme consequences than existed even at the time of Baker v. Carr. Politically, both are equivalent to a non-violent overthrow of incumbents and political delegations, of course, hence unlikely.

Still, any discussion of how important it is for people to vote is not complete if it eliminates the topic of who ought to make the decision about which candidates one is required to choose from.

[Thomas Rekdal]

I find it amazing that most of the commenters to this thread do not question Judge Posner's original assumption that there are "no social benefits from partisan gerrymandering." Of course there are! The social benefit is that you will make it more likely that the good guys will win. Isn't that the whole purpose of a governmental design?

Ah, but the reply will be, how can you be sure that the gerrymander will favor the good guys? Well, you can't. That is the whole point of the American system. As Madison explains in the 51st number of the Federalist, "In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit."

Republican government requires that all offices be directly or indirectly accountable to the people. It does not preclude gerrymanders at one level or another. On the contrary, the more "different modes of election and different principles of action" come into play, the better.