A Clean End to PA Gerrymandering

Gerrymandering was conceptualized during the tenure of Massachusetts governor Elbridge Gerry who, during redistricting negotiations, designed a district that looked strikingly like a salamander. Thus, the Gerry-mander was born. Gerrymandering is a broad term that covers a variety of flaws in the drawing of district lines. In the words of Associate Justice Byron White, gerrymandering occurs when an “electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.” Some forms of gerrymandering, such as drawing lines that attempt to marginalize voters based on race, have been ruled unconstitutional by the Supreme Court. This post will discuss partisan gerrymandering: the drawing of electoral district lines so as to imbalance the proportion of elected representatives of a certain party to the number of votes cast for that party.

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The Infamous Salamander District

In the Supreme Court case Davis v. Bandemer (1986), the Court ruled that partisan gerrymandering was unconstitutional only when “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group” were present. That standard has proven very difficult to meet, and the first twenty partisan gerrymandering cases heard by federal courts were all decided against the plaintiffs (Beckett). Some people hoped the court would clarify its language from Davis v. Bandemer in either of the two gerrymandering cases it took up this past session, but both decisions cited procedural violations that made the cases invalid (an explanation of why they were dismissed can be found here but shall not be addressed in the remainder of this post).

However, the focus of this post is not the Supreme Court, nor is it Davis v. Bandemer. Instead, this post is an endorsement of the original clean (amendment-free) version of Pennsylvania Senate Bill 22. While the federal courts may be delaying any ruling on partisan gerrymandering, the Pennsylvania State Supreme Court ruled in January that Pennsylvania’s federal congressional districts “clearly, plainly, and palpably” violated the Pennsylvania Constitution (Previti). As a result, Pennsylvania has a new congressional map for the 2018 midterm elections. However, lack of legislative action could result in the same issue arising in only a few years. Districts are redrawn after every federal census, the next of which occurs in 2020 (and every subsequent decade). Once the census has been published, the PA legislature will draw up a new congressional map, one that could just as easily favor one party over the other.

While redistricting–vital to ensure districts evolve to match changing demographics–must continue, the problem is that when legislators draw districts, they are able to draw ones that favor their own party and (for state districts) to select their own voters. Redistricting, in fact, does not have to be partisan-based to be problematic. When legislators–regardless of party–pick their constituents, they have substantial motive to pick ones who will vote for them again (“About”).

At one point in time, politicians did not have the capability to carve out accurate and efficient districts to maximize efficiency in drawing districts to favor single parties, but that is no longer the case. With advancements to technology, politicians have access to software that synthesizes data on demographics, race, individual voting history, social media posts, magazine subscriptions, and the like to predict a voter’s political leaning (Newkirk). Thus, congressional districts can be drawn with precision to ensure the most favorable district map possible for the majority party. In fact, in the Wisconsin case that was struck down for procedural reasons in the Supreme Court, the plaintiffs presented 200 random (but possible) district maps and then determined how seats would have been apportioned given the results from the previous election. Out of the 200 random maps, not one gave the Republicans a majority greater than what they secured using their own map (Kean). These results speak to the sophistication of modern gerrymandering.

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Senator Lisa Boscola

 

In response to the PA Supreme Court’s decision and increasing technological abilities that have caused national uproar, State Senators Lisa Boscola (D-18, Lehigh/Northampton) and Mario Scavello (R-40, Monroe/Northampton) introduced S.B. 22, which would put redistricting in Pennsylvania in the hands of a bipartisan committee. The 11-member committee would be comprised of four Democrats, four Republicans, and three members not affiliated with either major political party (Murphy). The committee would be appointed by the legislature (Action Together Nepa, et al). In order for a map to pass, it would need to receive at least seven affirmative votes including those from at least two Republicans, two Democrats, and two third-party/independent members (Murphy). This process ensures the committee must work towards an equitable solution. The legislature would have final approval of the map (Action Together Nepa, et al). S.B. 22 proposes an amendment to the State Constitution, and thus must be voted on by the citizens of the commonwealth in addition to the legislature.

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Senator Mario Scavello

Even this bill is not without flaws, as it still places power in the hands of the legislature. When it was originally presented to the Senate State Government Committee, the bill proposed random selection of committee members, but by the time it emerged from the Senate State Government Committee, Chairman Mike Folmer (R-Lebanon) had secured legislative control over many aspects of the process (Action Together Nepa, et al). In response, Action Together NEPA, Capitol Region Indivisible, Keystone Progress, the NAACP State Council, PA Together, and a number of other organizations wrote the cited article, pulling their support for the bill.

The bill faced another setback on the House floor where Republicans added on an amendment that would also provide for the reorganization of the appellate court judiciary into districts instead of elections based on the vote of the entire commonwealth (Taggart). As this proposition would also require amending the Constitution, it would appear as a separate ballot question in November (assuming the bill is passed by the House in time to get the votes on the ballot). Regardless of the merits of this proposal, the fact remains that the two issues are not the same and should not be addressed together. Taking redistricting out of the hands of the legislature is not related to creating appellate judicial districts. The latter issue has not been given the attention it deserves as a proposed amendment to the constitution, as it was debated during only one Senate session when it was getting tacked on to S.B. 22. By comparison, S.B. 22 was introduced in February.

The question of partisan gerrymandering is no longer one that can be pushed aside or discounted. With every passing year, technology improves the ability of parties to predict votes and design districts to augment their power. If action is not taken before the 2020 census, voters will either have to challenge another partisan gerrymandered district map in PA or they will have to wait for the next redistricting in 2030, facing a legislature whose majority party will likely have secured its grip on power using more advanced technology than can currently be fathomed. That legislature may be even less likely to relinquish hold of their power than the current one. The time to act is now. That said, the solution to gerrymandering needs to be a clean one. If Republican legislators want to bring up a bill proposing amending the Constitution to impose appellate judicial districts, that is their right. That bill, however, should have to go through committee and debate like any other piece of legislation. Constitutional amendments are hard to undo, and so they deserve careful thought, research, and debate. S.B. 22 has had all of that. The House needs to act on its merits now. No, the bill is not perfect. Yes, it gives too much power to the legislature and is burdened by an unnecessary and unrelated amendment. It is not, however, beyond hope. The key principle of S.B. 22 is that voters should get to pick their legislators, not the other way around. That principle is sound. Legislators should support the unamended S.B. 22 as it was introduced by Senators Boscola and Scavello. They should support it now, and more importantly, they should support it clean.

 

Questions

Does the power the legislature has over the committee appointments and the requirement of final approval by the legislature mean is should not be seen as a worthy amendment to the State Constitution?

Is supporting S.B. 22 even with the amendment to change judicial elections worthwhile?

Should appellate judicial elections be statewide or limited to districts?

Do you have anything else relevant to say that I am not asking about?

 

Works Cited

Action Together NEPA, et al. “This Pa. Senate Bill Doesn’t Fix Gerrymandering. It Makes It Worse.” PennLive.com, 4 June 2018, http://www.pennlive.com/opinion/2018/06/this_pa_senate_bill_doesnt_fix.html.

Beckett, Lois. “Is Partisan Gerrymandering Unconstitutional?” ProPublica, 7 Nov. 2011, https://www.propublica.org/article/is-partisan-gerrymandering-unconstitutional.

Davis v. Bandemer. 478 U.S. 109. Supreme Court of the United States. 1986. FindLaw, https://caselaw.findlaw.com/us-supreme-court/478/109.html.

Kean, Sam. “The Flaw in America’s ‘Holy Grail’ Against Gerrymandering.” The Atlantic, https://www.theatlantic.com/science/archive/2018/01/efficiency-gap-gerrymandering/551492/.

Murphy, Jan. “Pa. Senate passes redistricting reform bill that includes controversial judicial election change.” PennLive.com, 13 June 2018, https://www.pennlive.com/politics/index.ssf/2018/06/senate_advances_two_sweeping_g.html.

Newkirk, Vann R. “How Politicians Can Use Pig Data to Win Elections.” The Atlantic, 5 Dec. 2017, https://www.theatlantic.com/video/index/547541/what-is-gerrymandering-technology/.

Previti, Emily. “Pennsylvania Supreme Court Strikes Down Voting Map.” NPR, 22 Jan. 2018, https://www.npr.org/sections/thetwo-way/2018/01/22/579788104/pennsylvania-supreme-court-strikes-down-voting-map.

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4 thoughts on “A Clean End to PA Gerrymandering

  1. Jaxi July 10, 2018 / 4:29 pm

    I agree with the wonderful Mary Zimmerman; what a thorough and informative article. Also, I really enjoyed learning how the name Gerrymandering came to be. I love salamanders.

  2. Nick Jacobson June 29, 2018 / 6:10 am

    I appreciate the comments. Sadly, even “dim” is probably too bright in regards to the prospects of a clean S.B. 22. However, even the minimal steps that have been taken are progress (although no substantive change has, of yet, occurred). Asking party leaders to support a bill that undermines their authority is a hard sell. That is why all these advocacy groups are so important–legislators need to know that people care enough about this bill to see it through. Hopefully going forward, the plethora of groups, the cosponsors of the bill, and the party leaders can find a way to work together to get this amendment passed. I liked your quote, so I will offer my own from Milton Berle: “If opportunity doesn’t knock, build a door.”

  3. Blue Jacket June 27, 2018 / 7:31 pm

    Some further thoughts on the “Clean End”

    What you say makes good sense. If only one could conform what the Legislature “should” do to what it is likely to do.
    We have a Legislature controlled by a political party that is resolute in its desire to retain control of the State’s policy goals, evidencing at every suggestion of reform a refusal to compromise.
    Can we blame them? They look out upon a constituency that, like it or not, was instrumental in electing a Chief Executive who does his best to spew forth exhortations for further endorsement of their party’s power. They face an opposition party that, despite the size of its membership, appears reluctant to voice too much opposition, perhaps for fear that, were the shoe on the other foot, that party, too, might find it necessary to fight for retention of power.
    Indeed, the very sponsor of the initial, “clean” Senate Bill 22 stood before the Senate’s Committee on State Government at a public hearing and as much as invited amendments, by testifying that she was “not wed to any particular provision of the bill.” They see a counterpart to the bill in the State’s House of Representatives gutted by the Chairman of that body’s Committee on State Government – a man who makes no bones about saying that he sees it as his mission as a leader in his party to identify proposals by the opposition party and to defeat them.
    They hear prior leaders of the Legislature, representing both major political parties, remind them that authority for redistricting was vested in the Legislature and that it should remain there.
    Now, they see the nation’s Supreme Court give their party all but the keys to the Kingdom of gerrymandered control.
    We see a report from Fair Districts PA, an advocacy group, as recently as June 21 indicating that: “the House [i.e., the State House of Representatives] buried its counterpart to SB 22 in hundreds of bogus amendments. The source of those amendments speaks volumes about how both parties (!!!) feel threatened by reform. Representative Matt Bradford, a Democrat from Montgomery County, introduced over 260 amendments; Representative Daryl Metcalfe, a Republican from Butler County, introduced over 120.” All in a single day, as the legislators cleaned house and prepared for a summer recess!
    We had seen a request from that advocacy group that citizens contact their legislators and ask them to vote for Senate Bill 22, with an amendment developed after discussions with the Chair of the Senate Committee on State Government. Included in that amended version was language which (I believe) would have the State Constitution set forth a list of qualifications for membership on the proposed citizens’ redistricting commission — a list so long and detailed that it would be enough to scare off good candidates as well the bad and the ugly. (As you point out, it is not so easy to undo a Constitutional amendment should it subsequently be pitted against unintended facts or circumstances).
    Subsequently, we saw another request from that same advocacy group asking citizens to contact their legislators and to urge approval of another amendment that apparently would omit controversial language pertaining to regional election districts for appellate judges, but which would also insert into the Constitution the concept of Ranked Choice voting by commission members if they cannot agree upon a redistricting plan — a concept which California and Maine have long struggled to help their voters understand.
    Ultimately, we saw a message — appearing to be somewhat dated — from an affiliated or subchapter of the advocacy group, urging citizens to ask their legislators to vote against (!!!) Senate Bill 22. That left us wondering whether communication among all advocacy groups is as consistent as it should be.
    And, today, we see another message with “a glimmer of hope,” but with an ominous note that: “…over 600 amendments have been submitted for consideration of the House version of the bill, and, despite the numerous indications of co-sponsorship, “the bill was removed from the House calendar due to the difficulty of processing the record number of amendments…. the House recessed Monday afternoon without considering any redistricting reform.”
    Is all of this not enough to say that hope for a “clean” Senate Bill 22 is dim at best?
    A significant problem, I think, is that, despite all the good intentions and the hard work of research and presenting the bill, despite the sponsors’ express willingness to consider modifications or compromises, they failed at the outset to ensure they had the amorphous but necessary ingredient of “buy-in” from their respective parties.
    We might harken back to Sir Edmund Burke, who centuries ago cautioned that we “approach to the faults of the state as to the wounds of a father.” For, we may get only one chance to repair those wounds, to fix those faults. A meeting of minds should be, must be prerequisite to penning what might otherwise appear to be an easy amendment to something as vital as a Constitution.

  4. Mary Zimmerman June 22, 2018 / 7:33 pm

    This is the best concise description of Senate Bill 22 I have read

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