Is the End of Gerrymandering Near? Huge Crowds and Publicity Surround U.S. Supreme Court for Pivotal Case
By Carl Carnevale, law student at the University of Akron
Last week the Supreme Court heard Gill v. Whitford, a gerrymandering suit led by retired law professor Bill Whitford challenging the constitutionality of Wisconsin’s state legislative map. The map was passed by a Republican-dominated legislature after the 2010 census. Many election law experts consider Gill to be a landmark case in the making that will decide the future of gerrymandering in modern American politics. Sensing the tremendous stakes, big names in law, politics, media, and celebrity descended upon the nation’s capital during oral arguments.
The biggest issue the court is grappling with is whether partisan gerrymander cases are even justiciable, meaning that the courts have the authority and ability to hear and adjudicate them. Courts can already hear racial gerrymander cases with authority under the 14th Amendment. A victory for Wisconsin (technically, the Wisconsin Elections Commission) could potentially close the door to such challenges forever, leaving political gerrymandering as a perfectly legal practice with politics being the only supposed remedy.
A similar case like this was brought in 2004 when Vieth v. Jeubelirer challenged a Pennsylvania congressional map. In that case, the Supreme Court declared political gerrymander cases nonjusticiable by claiming that courts have no real way of remedying them. However, this declaration did not become hard law because the Court could only manage a plurality decision (rather than a needed majority decision).
The reason for this was because Justice Anthony Kennedy voted with the plurality in Vieth but wrote his own opinion. Whereas the Court in Vieth opined that partisan gerrymander cases cannot be brought before a court, Kennedy wrote that they eventually could be if a “workable standard could be found” for the court to use in adjudicating them. The “workable standard” is the key to this year’s Gill case.
The Whitford plaintiffs believe they have found such a workable formula in the form of an independent mathematical analysis called “efficiency gap,” developed by University of Chicago law professor Nicholas Stephanopoulos and political scientist Eric McGhee. Efficiency gap measures “wasted votes,” defined as votes cast for a losing candidate or votes above the number needed to win a particular race.
The efficiency gap, simply put, is the ratio of wasted votes against the total votes cast. Whitford contends that if the efficiency gap becomes so egregious that a wide spectrum of election outcomes would yield similar results for one party, then unconstitutional gerrymandering may have occurred.
Two large questions loom over this case:
First, is math the end-all answer to gerrymandering? It’s a legitimate question. Skeptical justices have good reason to fear what may come to the judicial branch by answering yes: litigation from losing parties every election cycle claiming that a state’s maps are unfair, with each side turning post election court battles into a go-nowhere spats between each side’s “data experts.” Chief Justice John Roberts, not shy to show his preference during arguments, went so far as to dismiss the plaintiff’s efficiency gap work as “sociological gobbledygook.”
Gerrymandering is widely regarded as a terrible and destructive practice designed to deliberately eviscerate effective democracy in favor of one faction or another. But should software programs be the end-all judge of a constitutional issue?
The second (and perhaps most important) question is this:
Did the challengers sway Justice Kennedy this time around? Has Kennedy finally found the workable plaintiff in Gill that he did not have in Vieth a decade ago?
There were some hints in oral arguments to offer speculation as to the Court’s possible decision. The justices appeared split along the predictable partisan lines. Justice Neil Gorsuch likened the use of math to identify gerrymandering to the use of steak rub, suggesting a heavy preference that courts have no place to dictate states’ maps based on the parsing of numbers. Justice Ruth Bader Ginsberg asked rhetorically of her colleagues “what becomes of the precious right to vote?”
Justice Sonia Sotomayor tongue-tied the Wisconsin Legislature’s attorney, Erin Murphy, with one simple question: “How does [gerrymandering] help our system of government?” To Ms. Murphy’s credit, she was tasked with defending a nearly indefensible position.
Kennedy did not appear to tip his hand with his questions, but some have speculated that he is finally ready to see the court address the problem of political gerrymandering. Above The Law reported that Kennedy’s was heavily engaged during Whitford attorney Paul V. Smith’s presentation but asked no questions of the other side, suggesting that he may finally have found a proper plaintiff to tackle the gerrymandering issue.
Ultimately, most experts agree that the outcome of this case all boils down to Kennedy’s vote. Whether he has been persuaded is anyone’s guess. We’ll have to wait with much anticipation for that question to be answered. There is no doubt that the opinion will be (and should be) the nation’s top headline when it is finally published.
Check out the official transcript of the oral arguments.
From Cleveland.com’s Rick Exner Math and the Ohio Gerrymander:
This morning, the US Supreme Court heard oral arguments in a critical case that will impact the future of fair districts and fair elections.
How is your area doing? So far 14 counties have met the minimum number of signatures needed, dozens more are making good progress, and five counties need fewer than 100 signatures.
How can you help?
- Sign the Fair Congressional Districts for Ohio petition.
- Donate to the Fair Districts campaign.
- Volunteer to help collect signatures, verify petitions, or host a house party.
Happy first day of autumn!
Even though it still feels like summer outside, Ohioans are shifting their schedules into fall activities – kids and college students are back at school, high school and college football games, harvest festivals, and more.
The Fair Districts campaign is shifting from summer to fall as well. Summer was wonderful for collecting petition signatures at parades and county fairs. Now that fall is here, people have been asking where we should focus our activity.
Here are some ideas to keep Fair Districts moving towards our goal of 305+ thousand signatures and $2 million dollars by the end of the year:
By Carl Carnevale, veteran, law student at the University of Akron, and redistricting reformer
230 years ago yesterday, a smattering of lawyers, businessmen, politicians, and a good doctor officially ratified the founding of our nation. It wasn’t easy; the Constitutional Convention of 1787 was wrought with tension and was nearly scuttled that summer.
But the founding fathers forged ahead, understanding that they needed to fortify certain fundamentals of the new representative government to ensure that it would be respectful of the peoples’ rights to life, liberty, and property.
One of the chief principles addressed during the convention was the manner of conducting elections. The U.S. Constitution gave states the right to conduct their elections. This served two functions – first, it provided a vital pillar of sovereignty for the states; second, flexibility was a good way to ensure that each state could hold elections honestly and efficiently without fear of federal meddling.
The founders foresaw the eventual rise of political parties in U.S. politics. James Madison’s Federalist No. 10 deals directly with designing the government to ensure that political factions do not overrun the government and destroy peoples’ rights. Madison considered the inevitable ills of factions to be the penultimate danger of a sound republic.
How fitting that as soon as the nation was formed, the Gerrymander came for him
In the very first elections for U.S. Congress, the anti-federalists who controlled the Virginia legislature re-drew their 5th congressional district in an attempt to keep Madison out of Congress! Thankfully, the anti-federalist partisans were unsuccessful that time – Madison won.
But 230 years later, I wonder how many Madisons, Jeffersons, Franklins, and other talented and patriotic public servants have been denied the right to serve by the evil of gerrymandering. The loss is not only theirs, but ours.
Today, the nation’s population is over 320 million. And, right or wrongly (another issue for another time), we still have only two parties to represent this massive bloc of people across an vast spectrum of industrial, economic and cultural interests. For these reasons, the need for fair, honest, and competitive elections is more apparent than perhaps any other point in our nation’s history.
In a time when people feel that the political system is unresponsive to them, gerrymandering does far more damage beyond favoring one party over another – it erodes faith in the republic. To me, this erosion is the most dangerous enemy we face as a society, more dangerous than any terrorist or rival nation.
We cannot allow the notion that our politics is an exercise in special interest corruption or factional dominance to become widespread. Our elections must be meaningful and fair. We can vigilantly defend against gerrymandering by being the change we want and need to see. Great Ohioans from all over have taken this to heart and are working together to end this destructive practice.
The sheer breadth of the effort so far cannot be denied. The majority of people badly want an end to gerrymandered districts, and they are determined to see it through despite the efforts of many in the Ohio Legislature who would rather keep their cushy status quo.
Thanks to wonderful redistricting reformers all over the state, it’s only a matter of time before the petition signatures reach their required marks in every county. I relish the opportunity to see the people of Ohio slay the Gerrymander in the next general election; it is an opportunity well worth fighting for.
The founders designed our election system brilliantly; for all of our contentions, it still stands today as a gleaming symbol of freedom that has become the envy of the world. But the people must feel that the game is fair if they are to keep the faith in this model of government. The Gerrymander is the biggest threat to that good faith.
Thankfully, We the People of Ohio are ready to slay the dragon and give the rest of the country the blueprint to fighting for fair and competitive elections that include all of the people – just as the Constitution intended.
Happy Constitution Day, my friends. Fight on.
By Carrie Davis, League of Women Voters of Ohio
There have been some exciting developments on the redistricting reform front!
Yesterday, statehouse legislative leadership said that they have been in discussions about congressional redistricting reform and anticipate making an announcement next week. (See “Legislative leaders meet on congressional redistricting,” Columbus Dispatch, 9/13/2017)
We are gratified that the legislature is finally taking this issue seriously.
No doubt, it has become increasingly hard for the Statehouse to ignore the 2700-plus Fair Districts volunteers around the state and the 120,000-plus Ohio voters who signed the Fair Districts initiative petition to ensure congressional redistricting reform makes it onto the 2018 ballot, with or without the legislature’s help.
While legislative leadership’s public comments are a hopeful sign, we have to balance that hope with a realistic appraisal of the situation.
Despite voters’ overwhelming passage of state redistricting reform in 2015, and our persistent lobbying, the legislature has thus far declined to act on any of the congressional redistricting reform proposals submitted in 2015, 2016, or 2017. Until the legislature does more than talk, we need to continue pushing forward with our Fair Congressional Districts for Ohio initiative.
That said, we have always supported a legislative solution and continued to lobby for reform in the legislature. However, we will carefully scrutinize any proposal to ensure it puts forward real reform, not just pay lip service to the problem.
Please contact your state senator and representative and urge them to support real redistricting reform for our congressional districts, including the following essential protections:
Until the legislature passes a proposal to put meaningful reform before voters, we will continue moving forward with a citizen initiative in order to make sure reform is enacted before the next time Congressional districts are redrawn. So keep collecting signatures!
By Rita Kipp, retired academic and hopeful redistricting reformer
Indivisible: OH 12 East, especially its Fair Districts=Fair Elections petition drive, and Strong Voices Rising, a local group of mostly women supporting various causes, gave direction to my new activist impulses. More recently I have joined with others to revive the moribund League of Women Voters of Licking County.
Through this transformative journey of the last several months, Hope in the Dark was my motivational beacon.
Solnit argues that taking action requires that we hope. What is more, it builds hope. The hopeless do not act. There is good reason for hope, she says, even when the outcome looks most bleak. This is because the future – and the assumption that it is bleak – are not knowable.
With the campaign for Fair Districts pushing on, and as we dig ever more deeply within ourselves to tap reserves of courage and energy, I offer this paragraph from Hope in the Dark as inspiration to all volunteers and activists:
"Hope locates itself in the premises that we don’t know what will happen and that in the spaciousness of uncertainty is room to act. When you recognize uncertainty, you recognize that you may be able to influence the outcomes – you alone or you in concert with a few dozen or several million others. Hope is an embrace of the unknown and the unknowable, an alternative to the certainty of both optimists and pessimists. Optimists think it will all the fine without involvement; pessimists take the opposite position; both excuse themselves from acting. It’s the belief that what we do matters even though how and when it may matter, who and what it may impact, are not things we can know beforehand. We may not know them afterward either, but they matter all the same, and history is full of people whose influence was most powerful after they were gone."
Rebecca Solnit, Hope in the Dark: Untold Histories, Wild Possibilities (Chicago: Haymarket Books, 2016), Foreword to the Third Edition, page xv.
Labor Day weekend marks the unofficial end of summer, and communities all around Ohio will be having festivals, fairs, barbecues, parades, and many other public events that are perfect for collecting petition signatures.
We need your help so that people who want to sign a petition can find an event where we are collecting signatures. If you are organizing an effort at an event this weekend, please send an email with details to firstname.lastname@example.org.
How many signatures do we need?
As a reminder, in order for our Fair Districts petition to qualify for the ballot, we need signatures equal to or greater than 10% of the total number of votes in the last gubernatorial election (305,591). Of that signature total, we need at least 44 counties to have signatures equal to or greater than 5% of each county’s total number of votes in the last gubernatorial election.
The latest numbers & counties to focus our efforts
The #1 most asked question we get is how many signatures do we have. A close second is what are my county’s numbers.
At this stage of the campaign, we are really focused on reaching that 44 county requirement, and, once we have done that, we can keep building toward the 305,591 total needed from anywhere in the state.
Based on petitions turned in and processed so far, 8 counties have exceeded the 5% threshold needed to file and another 41 counties are making very good progress toward the 5% mark.
Here is a list of counties nearing the 5% threshold needed to file. A good solid push over the next week or two could do it.
If your organization wants to take a road trip or go into new territory, please concentrate your petitioning efforts in these counties.
Turn in your petitions after Labor Day
We are asking all volunteers to turn in petitions with any number of signatures by September 10, after Labor Day, so that we can get another updated count.
Many thanks to all the wonderful volunteers working so hard to make Fair Districts a reality!
By Dan Vicuna, National Redistricting Manager for Common Cause
Ohioans have been leading the way for many years. More presidents were born in Ohio than any other state. Ohio is also the birthplace of aviators and astronauts. And we all know that Cleveland rocks!
Ohio has the opportunity to lead the way again and improve democracy by mandating partisan fairness in the drawing of congressional districts.
Only 11 states explicitly prohibit partisan gerrymandering or have some protection against drawing districts for political advantage.
The Bipartisan Congressional Redistricting Reform Amendment would extend Ohio’s prohibition, which currently applies only to General Assembly districts, to congressional redistricting. The measure’s explicit ban on partisan gerrymandering is a huge step in the right direction, but another section of the proposal takes an even more novel approach. This initiative would make Ohio the first state in the country to directly address one of the most common types of congressional gerrymanders: those in which districts are drawn to give a party far more seats than its vote totals should allow.
Following the last census, many state legislatures drew congressional districts designed to give one party this unfair advantage. In 2012, the first election post-redistricting, Republicans won 51 percent of all votes cast for Ohio’s U.S. House of Representatives candidates while Democrats won 47 percent. Despite this somewhat even vote split, Republicans won 12 of 16 congressional races, a whopping 75 percent of districts. A similar pattern in favor of Democrats can be seen in states such as Illinois and Maryland, where Democrats drew districts.
The Bipartisan Congressional Redistrict Reform ballot initiative would address this discrepancy directly with the following provision:
“The Ohio redistricting commission shall maximize representational fairness by adopting a plan whose statewide proportion of districts most closely corresponds to the partisan preferences of the voters of Ohio as measured by the statewide proportion of votes in state and federal partisan statewide general election results during the previous ten years.”
This provision would ensure that, for example, if Party A has won about half of the state’s total votes in elections for statewide offices (examples: governor, senator, and attorney general) over the last 10 years, the Ohio redistricting commission would choose the plan that would give Party A the opportunity to win about half of congressional seats. This would discourage the manipulation of elections through the slicing and dicing of communities to rig districts in a way that is not representative of the politics of the state.
No state in the U.S. currently targets partisan gerrymandering of congressional districts with such pinpoint accuracy. In addition to the ballot initiative’s other protections against one-party dominance of redistricting, this unique partisan fairness measure will help Ohioans lead the way in the nationwide fight to end gerrymandering.
There are many ways to help slay the gerrymander. An essential step is collecting signatures and helping to get the word out about the need for fair districts and fair elections. Together, Ohioans can lead the way!
Common Cause’s Redistricting Activist Handbook
Press Release: Redistricting Campaign on Pace to Set Petitioning Record, Riding Wave of Grassroots Enthusiasm for Congressional Reform
FOR IMMEDIATE RELEASE:
July 31, 2017
Carrie Davis, LWV Ohio, 614-469-1505
Catherine Turcer, Common Cause Ohio, 614-579-5509
David Miller, The Ohio Environmental Council, 419-944-1986
COLUMBUS, OH - The Fair Congressional Districts for Ohio ballot issue campaign marked Monday's financial filing deadline by celebrating the unprecedented success of its grassroots volunteer petitioning effort.
"Unlike so many initiatives that are driven by out-of-state wealthy special interests, our campaign is led by the people of Ohio," said Jeff Cabot, Fair Congressional Districts for Ohio's treasurer. "Take a look at our campaign finance reports and you will see that our support comes from good-government groups who are based in Ohio and care about our communities, along with a long list of small-dollar donations from everyday Ohioans, our friends and neighbors."
"We've been fortunate to have an amazing outpouring of volunteer and partner support that has kept our expenses low," said Heather Taylor-Miesle, Executive Director of The Ohio Environmental Council. "We've had a constant flow of volunteers in and out of our office picking up and dropping off petitions. It's clear that Ohioans are eager and ready to put in the work to ensure we get fair congressional districts across the state."
Earlier this month, Fair Congressional Districts for Ohio and the Fair Districts = Fair Elections Coalition announced that in just the first month of petitioning, redistricting reformers from all over Ohio collected more than 100,000 signatures. More than 2,400 volunteers fanned out across the state and collected signatures from voters in all 88 counties, and eight counties already surpassed the 5% needed to file from half the counties in the state.
"This is incredible, and thanks to a wave of grassroots volunteer enthusiasm, we are on pace for a record-breaking campaign," said Carrie Davis of the League of Women Voters of Ohio. "Historically, Ohio initiatives have gathered from 5 to 20 percent of their signatures using volunteers, having to rely on paid circulators to collect the rest. We are over a third of the way to the number of signatures needed, due exclusively to volunteers. As far as we know, no initiative campaign in Ohio has done this before, let alone in just one month."
To place the Bipartisan Congressional Redistricting Reform Amendment on the ballot, the coalition of redistricting reformers will need to collect at least ten percent (10%) of the total vote cast for the office of governor at the last gubernatorial election (305,591 valid signatures).
"In 2015, Ohio voters overwhelmingly supported redistricting reform for our state legislature. Issue 1 of 2015 passed by more than 71 percent of the vote and won in all 88 counties," said Common Cause's Catherine Turcer. "It's clear Ohio voters are just as hungry to support redistricting reform for our congressional districts."
Pictures of volunteers
Fair Districts for Fair Elections? Not in My Backyard!
By a Concerned Citizen from Cleveland
It is a beautiful Saturday afternoon along the lake in Congressional District 4, so I have decided to take a walk through my neighborhood to make the most of the day.
I make it to the end of the block, and look across the road, only to have my entire day ruined. Just across one of the major roads within my small town is District 9.
I could vomit. Savages if I have ever seen them. How is it possible that our little suburbia harbors such monsters without at least caging them off first?
I see right through them. The snakes along the lake from District 9 masquerade as though they are no different than the others in our town, they send their kids to school with us, and they even have the audacity to shop in the same retail stores.
Make no mistake, I am all for equality and fair representation, but our representation should be more equal and fair than theirs.
It seems that there has been a push for “fair districts” for “fair elections”, and it makes me quiver. Me, share a district with those guys? I do not think so. Not in my backyard.
Rather than sit here and continue to bash those lepers down the lane to show why we don’t need a fair district where I live, allow me to give some insight as to why nobody needs districting reform.
Ohio Congressional Districts are Art! – By an Artist from Akron
When is the last time you peeked at our Congressional districts? I have the district map right in front of me, and it is simply beautiful. What some uncultured swine might now realize, is that this is some incredible abstract art that Picasso himself probably drew before his premature death. Among the many things you might find in this map, you will see a duck, a Rorschach blot, a caterpillar wearing a hat, and some strong emotions you probably weren’t aware you had.
Art should be preserved, and destroying this will cause Mr. Picasso to roll over in his grave. Have some respect for those passed!
Representatives Can Stay Far Away –
By a Distance Voter from Defiance
My Congressman lives about 3 hours, or 150 miles away
from my hometown. Do you know what makes this so great?
He is far, far away. Politicians are ALWAYS grimy, and
corrupt individuals, and you need to do everything you can
to avoid them. So, what if my representative has little
to no firsthand knowledge and exposure to life in the north
where I come from?
It’s not like Congress does much and at least when your representative screws up you can wipe your hands clean. They’re basically from Neverland so how can I blame them for their indiscretions.
This is NOT the American Way – By Sons of the Gerrymanderer
There seems to be a lot of emphasis on fair districts promoting fair elections. Our founding fathers knew better than to promote fair elections! Back when America was great, do you know who could vote? Men, specifically men who owned property.
All this talk of “the founding fathers believed in equality” is fake news. We didn’t have problems before women were voting, or minorities, or poor people (GAG!). It was simpler times when this country was founded, and the further we stray from the way things should be, the further we stray from God’s light.
Somebody’s Feelings Might Get Hurt – By a Nice Neighbor from Napoleon
I care about people, I really do. One major concern I have is that somebody might have their feelings hurt if we make the districts fair.
Many of Ohio’s districts are considered “safe districts” which effectively means that you know who is going to win beforehand based on the way the districts are divided down party lines. Knowing who is going to win beforehand saves our elected officials the pain and embarrassment they may face if there is a close election and they lose.
With the typical 70-30 splits we see now, it is an easier pill to swallow when you lose. It just wasn’t your election to take. However, if these elections get too close and too competitive, candidates may start feeling like they could have done more, or spent more time reaching out to voters, and that is what cost them the election.
Furthermore, the winner is going to be stressed from having to work to get the vote! The incumbents don’t work when they are down in Washington, who are we to tell them they must work when they get home to relax during their four days off a week (and frequent vacations)? This is nonsense. It is an indirect form of bullying if you ask me.
A final note from the editor and concerned citizen:
Any rational individual who has read this will understand and agree that attempting to reform congressional districting is just wrong. Rather than fighting Gerrymandering, we must unite and fight against the “Gerryslandering”, and against the remarkable work that has been done by our current rulers-- I mean-- elected officials.