Rigging the vote: how the American right is on the way to permanent minority rule | Ian Samuel
Are you in favor of the principle of majority rule, or are you opposed to it?
Should a political party that represents a minority of the people, rather than a majority of the people, run the country?
What if the party came to power through underhanded tactics?
The article states:
Exacerbating voter suppression is the ongoing partisan gerrymandering effort – the redrawing of electoral maps to favor one party over another. After the 2010 census, the Wisconsin legislature (controlled by Republicans) drew a map for the state’s legislative districts explicitly designed to ensure they would retain control of the legislature even if they received a minority of votes. It worked: in 2012, despite receiving only 48.6% of the vote, they won 60 of 99 seats. Democrats won an outright majority of votes cast but secured just 39 seats.
In fact, not mentioned in the article is that earlier this year the Pennsylvania Supreme Courts struck down a case of partisan gerrymandering in that state. The decision and its rationale are actually quickly understandable. See:
http://www.pacourts.us/assets/opinions/Supreme/out/J-1-2018majorityopinion.pdf?cb=1 The district drawing in this case seems to me to have been a very clear case of unconstitutional partisan gerrymandering.
However, the Wisconsin case is different in that the legislature did not (as far as I know) employ those unconstitutional methods of manipulating districts. The fact is that unconstitutional partisan gerrymandering is a very difficult thing to determine, and the big Court has not been able to articulate a judicially discoverable standard for making such a determination. But in
Davis v. Bandemer (1986) the Court found unpersuasive the arguments based on a disproportion between the number of votes cast for parties and the number of seats won by parties in a state. Because (
inter alia) districts are not perfectly equal in their populations, 50% of votes cast for a party in a state cannot logically require that 50% of seats for that party should be won. Moreover, such statewide proportions between votes cast and seats won does not give any clue as to which districts were unconstitutionally packed or cracked by the legislature or district-drawing committee.
The fact is Democrats tend to inefficiently pack themselves into urban centers where lots of votes for Democratic candidates are often wasted. In a very informative study published in 2013, the authors, Chen and Rodden, used “automated districting simulations based on precinct-level 2000 presidential election results in several states”--Florida, Michigan, Ohio, Missouri, Indiana, and Pennsylvania, where “the Democrats have had far more statewide success in winning presidential, U.S. Senate, and gubernatorial races than in winning control of state legislatures.” The authors found “a strong relationship between the geographic concentration of Democratic voters and electoral bias favoring Republicans,” and that “the highest levels of electoral bias against Democrats occur in states where Democratic voters are most concentrated in urban areas.” Using two simulated districting procedures for Florida, they were unable to produce a single districting plan that was neutral or pro-Democratic in electoral bias. In an analysis of other states, they found that “average bias in favor of Republicans is substantial.” See:
https://pdfs.semanticscholar.org/ac9d/47478af14d31b38d3174c8ec4d874bc373cc.pdf
One further wrinkle on the matter of partisan gerrymandering is that it was Kennedy, in
Vieth v. Jubelirer (2004), who singlehandedly salvaged challenges of such gerrymandering from being held to be a non-justiciable political question. Whether or not Kavanaugh will agree with Kennedy on this is a big question mark.