New York is going through another round of legislative districting. I fear the results because I hear little real understanding of what gerrymandering is and why it’s a problem.
Gerrymandering is about unfairness, not ugly pictures. Funny pictures can keep communities together, unite people in a valley, or protect a favored legislator. But things get nasty when one party stacks opposing voters into as small a number of districts as possible so that the party in control of drawing the lines can spread enough of their own voters among the remaining districts to defeat everyone else in upcoming elections. The resulting legislative delegations look nothing like the proportion of voters who supported either party.
Quite good mathematical tests of fairness have been developed by scholars at major universities. The efficiency gap was presented to the courts in Gill v. Whitford, and symmetry was presented to the courts in League of United Latin-American Communities v. Perry. But we have a Supreme Court majority that doesn’t believe in protecting democracy and it refused to consider the fairness of gerrymandering under any of the constitutional provisions for elections and equality. Nevertheless the tests proposed are excellent. For the New York State legislature, either test would be quite appropriate, cancel manipulation by any human panel, and create a state legislature that fairly represents all parts and parties in New York.
Congress is different. Red states have worked hard to obliterate Democratic votes and magnify the Republican votes in Congress. It’s not accidental. So once people gain control of the districting process, with available information, it’s not hard to waste the votes of opponents. Gerrymandering anywhere in the country affects the power of New York’s voters by swinging congressional power toward the party that does the gerrymandering in those states, regardless of New York voters’ wishes or the national vote count. States that gerrymander waste New York votes by stacking Congress in conflict with the proportion of voters who’d support them.
Once Red states gerrymander their congressional delegations, Blue states have to respond in kind to design a fair, non-gerrymandered voting system for the U.S. Congress to prevent partisan rigging of the House of Representatives.
Red state gerrymandering is the monster behind the jammed Congress which has been unable to pass a budget, fund important programs, or deal with problems that matter to New York, like immigration reform. Intransigent Republicans controlling Congress represent only a very small fraction of American voters, not the American people or New York. They got even more power when Republicans agreed not to bring anything to the House floor that House extremists do not approve. So Republicans doubly amplified their power, first by gerrymandering at the state level and then by deferring to the extremists in Congress.
The Constitution gives extra power to small states in the Senate but the effect of that is somewhat erratic and unaffected by human hands. It takes deliberate gerrymandering, however, to rig control of the House of Representatives. That can and should be countered.
The real solution would be for the Supreme Court to realize that the Constitution requires a national rule for fairness in districting. That would benefit all of us. But with the Supreme Court unwilling, New York needs to fight fire with fire.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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