Wednesday, January 24, 2018

Blogger Candidate Forum: More One Gerrymandering

http://www.citylab.com; Jan. 23, 2018


Hell Everyone:

It is time for the weekly edition of Blogger Candidate Forum.  A friendly reminder, the mid-term primaries are almost upon us.  In play is the Senate, the House of Representatives, governorships, and statehouses.  If you are registered to vote, fantastic, good for you, go out and vote.  If you are not registered to vote, no worries, you can go to vote.org for information.  Also, If you are DACA-eligible and need to renew, stop reading, go to uscis.gov to for renewal information and application.  Speaking of voting, we are returning to the subject of gerrymandering this week.

It seems that the state and federal supreme courts are waking up to the fact that partisan gerrymandering is everywhere you look (youtube.com; date accessed Jan. 24, 2018).

David A. Graham writes in his CityLab article "Has the Tide Turned Against Partisan Gerrymandering?," "Courts have historically been reluctant to strik down redistricting plans on the basis of political bias-unwilling to appear to be favoring one party-but Monday afternoon, the Pennsylvania state supreme court ruled [pacourts.us; Jan. 22, 2018; date accessed Jan. 24, 2018] that the state's maps for the U.S. House violate the state constitution's guarantees of free expression and association and of equal protection."

This comes on the (tar) heels of a ruling in North Carolina, earlier this month, in which a federal court struck down the state's electoral map (theatlantic.com; Jan. 9, 2018; date accessed Jan. 24, 2018), "the first time a federal court had ruled a redistricting plan represented an unconstitutional gerrymander."  The decision was upheld by the U.S. Supreme Court, which is currently considering similar a case from Wisconsin.  SCOTUS has also agreed to her a case from Maryland but rejected (wfaa.com; Jan. 16, 2018; date accessed Jan. 24, 2018) from Texas on procedural grounds.

Mr. Graham reports, "The Pennsylvania case may be at once the most important in the immediate term and least important in the long term."  The reason for this is founded in the state constitution, which curtails its reach but also has potential to remain in place.  Pennsylvania Republican legislators promised to seek a stay from SCOTUS, while Democratic lawyers posit (twitter.com/@marceelias; Jan. 22, 2018; date accessed Jan. 24, 2018) "there was not path to the high court."

If the high court ruling stands, it could be a huge boon to Democrats in the upcoming mid-term elections.  Pennsylvania is an important enough state that anyone with White House aspirations, needs to win.  In the last presidential election, Mr. Donald Trump surprised many pundits by winning the state.  All but five statewide elected offices are in the hands of Democrats.  In terms of electoral votes, Pennsylvania has 18 House districts (en.m.wikipedia.org; date accessed Jan. 24, 2018).  Twelve of those districts are in the red column and five are in the blue column; one was held by a Republican until he resigned in disgrace following a sex scandal.  Mr. Graham assures us that "Monday's ruling will not effect a hotly anticipated race in March."  Pennsylvania frequently lands on the list of worst district maps in the country.

Michael Berkman, director of the McCourtney Institute of Democracy at Penn State University, told CityLab, 

It's been a very effective partisan gerrymander.... Republicans have had a challenging time if you look at it at the state level.  Democrats clearly hold an advantage in the state, but they have just been destroyed in the legislature.

Given how closely scrutinized the map are "Monday's decision did not come as a complete shock."  Another challenge to partisan gerrymandering was dismissed by the federal court in December, however, the state Supreme Court tilts toward the blue side.  Mr. Graham reports, "The court issued a short decision Monday, with a fuller discussion to follow; two judges dissented, and a third dissent in part and concurred in part."

 No new maps have been drawn-the Pennsylvania Supreme Court ordered the state legislature to quickly draw a new map, adding that they would draw one of its own if the lawmakers did not comply-thus it is difficult to gauge the impact the ruling will have.  One thing is for sure, the short timeline will be beneficial to the Democrats.

Terry Madonna, a political scientist at Franklin and Marshall College , told CityLab

I think the Democrats would be optimistic that they would have a reasonable chance of picking up [a few seats].

Conservatively speaking, Keystone state Democrats could pick up one or two seats however, a more optimistic estimate has them adding as many as four or five places (twitter.com/@ElectProject; Jan. 22, 2018; date accessed Jan. 24, 2018).  It is not just the maps that would be less tilted toward the Republicans.  It could also mean that some of the incumbent Republicans would lose their advantage in their districts.

This news could not come at the worst possible time for the Red team.  Polling data and the speed of retirements from Congress, the president's near basement level approval ratings, all point to a #bluewave in November.  Mr. Berkman added, The kind of energy you're seeing elsewhere we're seeing here as well.

There are particular dynamics at play in Pennsylvania that could hurt the Republicans as well.  As Yours Truly previously stated, Pennsylvania is important to anyone with aspirations of occupying the Oval Office.  David Graham observes, "The state is  microcosm of national political dynamics with traditionally Republican suburban areas, which handed Democrats big wins in 2017 special elections across the country, trending toward the Democratic white, blue-collar voters sliding toward the Republican Party."

Also as previously mentioned, the district vacated by disgraced Republican Tim Murphy's resignation, Democrats are posing a very serious challenge, however former-Representative Murphy's ignominiously vacated seat will not be the only empty House chair.  Representatives Charlie Dent, a critic of Mr. Trump and moderate Republic, is retiring as is Bill Shuster.  The New York Times reported over the weekend that Representative Pat Meehan (R-Pa) settled a sexual harassment suit using a taxpayer funded settlement fund; other members facing similar charges have either resigned or announced their pending retirement.

Be that as it may, do not hold your breath on the House representation ended up evenly split with a 9-9 delegation. The Democratic Party is hampered by its strength in urban centers-eg. Philadelphia and Pittsburgh-which tends to generate packed districts.  Mr. Graham notes, "The eventual split is likely to get closer to even,..."

The Pennsylvania case shares similar features to the Wisconsin and North Carolina cases.  All three would result in outcomes that would be beneficial to Democrats.  Second, "all three argue that voters have been deprived of their rights to free speech, free association, and equal by virtue of being targeted for their choice to vote for the Democratic Party, which they say resulted in their being drawn into districts that reduced their outing power."

Third, all three cases represent a new trend toward quantifying the affect of partisan gerrymandering.  One measure is the "efficiency gap-" "a measure of how many votes for a candidate are wasted-either the number of votes in excess of what the candidate needs to wind, common when voter backing a candidate are packed into a district, or the number of votes cast of the loser when that candidates' supporter are dispersed."  Another way to quantify the affect gerrymandering is to conduct random simulations (philly.com; Dec. 11, 2017; date accessed Jan. 24, 2018) to demonstrate the extent of existing maps outside the normal distributions.

Even though some of the gerrymandered are struck down on the basis of race, the courts have been hesitant to declare gerrymanders unconstitutional along party lines because it would place the judiciary in the middle of partisan battles.  Since legislatures, in most states, have the right to draw districts lines, it has been generally assumed that they are delineated in order to give the majority party the advantage.  The question is have they gone too far.  In North Carolina, lawmakers protested, How much politics is too much politics in redistricting?  The goal of the measures is find an answer to that question, thus giving judges empirical information in order to render a decision.

Either due to this more data-based approach or just plain creative redistricting efforts, the end result are fantastical districts that would make Elbridge Gerry, the 19th century governor of Massachusetts, fifth Vice President of the United States, and the founding father of gerrymandering, turn scarlet.  This has made judges more receptive to new arguments.

New York University law professor Richard Pildes recently told The New York Times,

You're seeing how much turmoil there is now in the lower federal courts, and how many federal judges believes the time has come for the courts to impose substantial limits (nytimes.com; Jan. 11, 2018; date accessed Jan. 24, 2018).

For now, the U.S. Supreme Court has stayed the North Carolina decision while considers similiar pending cases.  David Graham speculates "....it seem unlikely (though not impossible) that the justices would render a ruling in time to affect 2018 races in Wisconsin, Maryland, or North Carolina."  He also points out "The Maryland case involves districts gerrymandered by the Democratic-controlled legislature.  Both parties have been offenders, but Republicans control so many more of the state legislatures that drew new maps after the 2010 Census, that most of the current cases involve GOP-drawn districts."  One possibility is the justices could affirm new concerns among federal judges regarding partisan gerrymandering, however, they halt the trend by reject any new arguments or numerical approaches.  There are indications that both data-based approach advocates and judges in the lower courts are shaping their language and decisions to appeal to Cheif Justice John Roberts (Ibid Jan. 15, 2018) or Justice Anthony Kennedy (theatlantic.com; Jan. 9, 2018; date accessed Jan. 24, 2018), the possible deciding votes.

The Pennsylvania case, founded in the state's constitution, is by necessity more limited in scope.  However, University of Kentucky law professor Joshua Douglas tweeted

Some thought on state constitutions and the constitutional right to vote, in light of PA S. Ct. decision striking down map as unconstitutional:

Virtually every state constitution (all but AZ) has an explicit clause granting right to vote... (twitter.com/@JoshuaADouglas; Jan. 22, 2018; date accessed Jan. 24, 2018)

This explicit clause granting the right to vote offers an "alternative or parallel track for plaintiffs seeking to have maps thrown out."

The Pennsylvania case may be the only to have direct consequence for the 2018 mid-term elections and boost Democratic hopes of a #bluewave.  However, the growing judicial trend to toss up maps considered excessively partisan will continue well past November.  Mr. Graham believes that "Most of the ongoing cases should be decided long before 2020, and the results will likely spawn further litigation."  The winners in 2020, particularly in the statehouses, will have the unique once-in-a-decade opportunity to redraw maps following the next Census.  In recent cycles, redistricting efforts have produced a kind of partisan feeding frenzy; Democrats caught unaware in 2010 are launching a high-profile effort to fight back.  If the current patterns hold, judges might be advised to pay close attention to whoever wins in 2020, and they will be less likely to engage in partisan games.