Ger­ry­man­der­ing in U.S. his­tory

Since Pa­trick Henry, politi­cians have tried to game the sys­tem — and most likely will keep do­ing so

Los Angeles Times - - FRONT PAGE - By Mark Z. Barabak mark.barabak @la­

Politi­cians have long drawn district maps to help them­selves, and may have more tricks up their sleeves.

WASH­ING­TON — Ger­ry­man­der­ing, the prac­tice of draw­ing self-serv­ing po­lit­i­cal bound­aries, is as old as the coun­try it­self. Its im­pe­tus, one could ar­gue, is even older and deep­erseated, grounded in the fun­da­men­tals of hu­man na­ture.

In the zero-sum game of cam­paigns and elec­tions, where you ei­ther win or lose, ger­ry­man­der­ing is a way to stack the deck and im­prove the odds by sort­ing peo­ple into dis­tricts based on how they are ex­pected to vote — in what, up to now, has been per­fectly le­gal fash­ion.

By agree­ing to hear a land­mark case chal­leng­ing the draw­ing of strongly par­ti­san bound­aries in Wisconsin, the U.S. Supreme Court in­di­cated Mon­day that it would con­sider whether, fi­nally, enough is enough.

If the court, which takes up the case in the fall, rules that ger­ry­man­der­ing is un­con­sti­tu­tional — a very big if, ex­perts say — it could dras­ti­cally change the coun­try’s pol­i­tics by in­ject­ing much greater com­pe­ti­tion into races for Congress and for state­houses na­tion­wide.

Such a de­ci­sion prob­a­bly would also spawn years, if not decades, of fur­ther lit­i­ga­tion, spurring politi­cians in the mean­time to find ever more clever ways of skew­ing con­tests for par­ti­san ad­van­tage.

“Draw­ing fair dis­tricts is a lit­tle like draw­ing a fair tax plan,” said Justin Le­vitt, a con­sti­tu­tional scholar at Loy­ola Law School in Los An­ge­les. “A lot of peo­ple have very dif­fer­ent ideas what those should look like at the end of the day.”

Some, for in­stance, think it’s per­fectly le­git­i­mate and ben­e­fi­cial to group com­mu­ni­ties of in­ter­est — say, Lati­nos or city dwellers or work­ers in the high-tech in­dus­try. Oth­ers de­sire ge­o­graph­i­cal com­pact­ness or a strict ad­her­ence to county or mu­nic­i­pal lines.

Up to now, if there has been a set of prin­ci­ples that guides the po­lit­i­cal line­draw­ing process, they are: Max­i­mize your po­lit­i­cal ad­van­tage. Do what­ever you can get away with.

“Most politi­cians, if they have the op­por­tu­nity, they want to win re­elec­tion, they want to be in the ma­jor­ity,” said Michael McDon­ald, a Uni­ver­sity of Florida po­lit­i­cal sci­en­tist who has tes­ti­fied as an ex­pert in law­suits chal­leng­ing po­lit­i­cal bound­aries. “So why would they not take ad­van­tage, given the op­por­tu­nity?”

Un­like in other coun­tries, the process of draw­ing elec­toral lines in the U.S. has largely been left in the hands of those elected to rep­re­sent those dis­tricts. It did not take long for in­her­ent con­flicts of in­ter­est to arise.

No less an em­i­nence than Pa­trick Henry — of “Give me lib­erty or give me death” fame — worked to per­suade the Vir­ginia leg­is­la­ture to draw con­gres­sional bound­aries aimed at po­lit­i­cally rub­bing out another of the coun­try’s founders, his en­emy James Madi­son. Madi­son won the con­gres­sional seat de­spite Henry’s ef­forts and went on to be­come pres­i­dent.

As events would have it, one of two vice pres­i­dents who served un­der Madi­son was El­bridge Gerry, the for­mer gov­er­nor of Mas­sachusetts whose cre­ative, nakedly par­ti­san line draw­ing pro­duced a district re­sem­bling a sala­man­der, hence his en­dur­ing con­tri­bu­tion to the na­tion’s po­lit­i­cal lex­i­con: the ger­ry­man­der.

His mod­ern dis­ci­ples, in­clud­ing Cal­i­for­nia’s leg­en­dar­ily pow­er­ful Rep. Phil Burton, were un­apolo­getic in their own brazen bi­ases. The San Fran­cisco Demo­crat, who al­most sin­gle­hand­edly en­gi­neered his party's con­gres­sional dom­i­nance in the state in the 1980s, proudly de­scribed his twist­ing, bla­tantly par­ti­san po­lit­i­cal lines as “my con­tri­bu­tion to mod­ern art.”

All Repub­li­cans could do was stew.

Now it is Democrats who ob­ject the loud­est, as the GOP has used its siz­able ad­van­tage in gov­er­nor­ships and state­houses to craft the greater por­tion of the na­tion’s po­lit­i­cal map, and do so in the most ben­e­fi­cial way pos­si­ble

In the Wisconsin case be­fore the Supreme Court, Repub­li­can Gov. Scott Walker and his al­lies drew a map that won the GOP 60 of 99 Assem­bly seats, even though in 2012 Repub­li­cans won less than half — 48.6% — of the two-party leg­isla­tive vote.

At the na­tional level, Democrats won a plu­ral­ity of the con­gres­sional vote in 2012 but, be­cause of the way lines were drawn, failed to win enough seats to take con­trol of the House.

Their ef­fort to win the House in 2018, amid a hoped-for back­lash against Pres­i­dent Trump, may be sim­i­larly ham­pered by strate­gi­cally drawn dis­tricts that tilt to­ward the GOP; at the least, any wave that sweeps Democrats into of­fice will have to be sub­stan­tially stronger than it might oth­er­wise.

The lop­sid­ed­ness ar­guably con­trib­utes to the na­tion’s po­lar­iza­tion; for many law­mak­ers, the great­est fear is a pri­mary chal­lenger pro­fess­ing greater ide­o­log­i­cal pu­rity — though the Se­nate, where law­mak­ers are elected statewide, is not ex­actly a bas­tion of bi­par­ti­san group hugs.

If change in the re­dis­trict­ing process comes, it will most likely be from the bot­tom up, from ef­forts like those in Cal­i­for­nia, where vot­ers took the line draw­ing away from politi­cians and handed it to a com­mis­sion that, at least in the­ory, was a neu­tral ar­biter.

Sim­i­lar at­tempts are un­der­way across the coun­try and ul­ti­mately may prove a more ef­fec­tive brake on ger­ry­man­der­ing than the Supreme Court.

What­ever the jus­tices de­cide, said the Uni­ver­sity of Florida’s McDon­ald, politi­cians will doubt­less con­tinue to try to ma­nip­u­late the sys­tem to the great­est ex­tent they can. “There’s ab­so­lutely no in­cen­tive not to,” he said.

Given how things work, law­mak­ers can draw new district lines af­ter the 2020 cen­sus and prob­a­bly wait years for the courts to get around to re­view­ing their hand­i­work. By then, they’ll be firmly en­trenched in­cum­bents with a big head start on re­elec­tion un­til the next re­dis­trict­ing takes place.

Elise Amen­dola As­so­ci­ated Press

A POR­TRAIT of El­bridge Gerry at the Mas­sachusetts State House in Bos­ton. A district he drew that re­sem­bled a sala­man­der spawned the word “ger­ry­man­der.”

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