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History Shorts: The Power Grab Behind Gerrymandering

History Shorts: The Power Grab Behind Gerrymandering


North Carolina Legislature’s Power Grab Disregards Basic Principles of Democracy

Courts and the public must stand up to lawmakers’ attempts to entrench GOP power.

When political pundits talk about “post-truth” politics, they tend to focus on national debates, and particularly on a certain public official’s Twitter feed. But we shouldn’t forget that the trend is also gaining momentum at the state level.

The closely divided state of North Carolina is (once again) the canary in the coal mine. Its GOP-dominated Legislature is seeking to expand its own power — including the power to change electoral rules for partisan advantage, as it has repeatedly tried to do — by misleading voters into changing the state’s constitution. Whether it succeeds will depend on the willingness of both courts and the public to stand up for democratic values.

North Carolina Republicans first won large legislative majorities in the 2010 GOP wave. They used their power to pass aggressive gerrymanders, awarding themselves 10 of the state’s 13 congressional seats and super-majorities in both houses of the Legislature to enact sweeping new voting restrictions that targeted Democratic-leaning African-American voters with, in the words of a federal appellate court, “almost surgical precision” and to reorganize state and county election boards so that Republican officials would remain in effective control of the voting process.

Many of these efforts have been knocked down by state and federal courts (though the Legislature’s egregious partisan gerrymandering is still awaiting resolution). But repeated judicial rebukes have not deterred the Legislature’s GOP majority if anything, their tactics have become more brazen and have increasingly targeted the judiciary itself (like the Legislature’s recent move to change the rules to give Republicans an advantage in an upcoming Supreme Court race).

Last month, the Legislature voted to put a series of constitutional amendments on the November ballot, two of which would dramatically reshape government in North Carolina. The first would restructure the state elections board and would strip the governor of the ability to appoint not only its members but hundreds of other officials across state government. The second would give the Legislature essentially untrammeled power to fill judicial vacancies with political loyalists.

These changes would cement GOP dominance despite Republicans’ control of only one branch of government. Among other things, the changes would make it easier for Republicans to continue pushing for rules changes that increase their own electoral advantage.

Of course, voters tend to abhor partisan power grabs. That helps explain why the Legislature is doing its best to obscure what it is actually doing.

In particular, the Legislature voted to require ballot language for these two amendments that completely obscures the intent. The amendment that strips the governor of his appointment powers over the election board and other state agencies is described as a housekeeping measure to “clarify the appointment authority of the Legislative and Judicial Branches.” The judicial vacancies amendment appears as a proposal to fill vacancies through “a nonpartisan merit-based system that relies on professional qualifications instead of political influence” even though it would give the Legislature carte blanche to appoint judges based on politics.

To head off any lingering risk of clarity, the Legislature voted in special session to strip the state’s Constitutional Amendments Publication Commission (two of whose three members are Democrats) of the power to draft explanatory titles that would go before the proposed amendments on the ballot. The justification for this blatantly political move was — wait for it — that the Commission might write “politicized” titles.

In short, the GOP legislative majority in North Carolina appears to be trying to mislead their own constituents to push through changes that will ensure vastly fewer checks on their own power, including their power to continue changing rules to help themselves stay in office.

This is not how representative democracy is supposed to work. First, the right to vote means nothing if voters cannot tell what they are voting on. This is particularly concerning where the voters are being asked to change their state’s highest law.

Second, it is inherently suspect, and contrary to bedrock constitutional values, for a partisan majority to use its power to lock in more power. Elections have consequences, but they shouldn’t include winners getting to change the rules of the game to help themselves stay in power.

Historically, courts have acted as an important institutional check on such abuses. From enforcing the rule of “one person, one vote” to stamping out poll taxes, courts over the last 50 years have stepped in to ensure the proper functioning of our democratic system.

In North Carolina, both federal and state courts have been instrumental in restraining the Legislature’s excesses. The courts will have the opportunity to do so again, thanks to a legal challenge announced by the governor earlier this month against the Legislature’s misleading ballot language (our organization has filed an amicus brief in support of the challenge). Hopefully they will again rise to the challenge.

But the courts can’t do it alone. Democratic values can persist only if the public is willing to stand up for them. What happens in North Carolina will be a test of the strength of the public’s commitment to those values — and a harbinger of what to expect in the rest of the country.


How Redistricting Became a Technological Arms Race

Advances in data, computing, and fundraising have given politicians new power to gerrymander democracy away.

These ain’t your grandfather’s gerrymanders.

Gone is the era of elaborate cartographical sketches and oil paintings of salamanders, and of salted old-timer politicians drawing up their “contributions to modern art” armed with markers and heads full of electoral smarts. Today, political mapmaking is a multimillion-dollar enterprise, with dozens of high-profile paid consultants, armies of lawyers, terabytes worth of voting data, advanced software, and even a supercomputer or two. Redistricting is the great game of modern politics, and the arms race for the next decade’s maps promises to be the most extensive—and most expensive—of all time.

Republicans certainly maintain the advantage in that game right now. They began the escalation over seven years ago, with the creation of the groundbreaking REDMAP initiative. As David Daley’s Ratf**ked illustrates, the first goal of the Republican State Leadership Committee’s REDMAP project was to seize control of vulnerable statehouses in purple states in the 2010 elections and grab ahold of the redistricting process, which by the Constitution occurs alongside the reapportionment of Congressional seats every 10 years with the results of the Census. With those seats in hand, the resulting end goal was not some shady conspiracy, and REDMAP’s own website proudly sums it best: “The party controlling that effort controls the drawing of the maps—shaping the political landscape for the next 10 years.”

REDMAP was a spectacular success. First, on the strength of fundraising efforts in pivotal states with changing demographics—places like Wisconsin and North Carolina that have become new swing states—Republicans overran 2010 state legislative races in backwoods districts, to the tune of nearly 700 state legislative seats, the largest increase in modern electoral history. Additionally, Republicans outspent Democrats by over $300 million in that year’s gubernatorial races, which netted them six additional gubernatorial positions, including the coveted governor’s mansions in Wisconsin, Ohio, Michigan, and Pennsylvania, which were all flipped from Democratic incumbents.

The Republicans’ two-pronged legislature and governor’s mansion strategy was vital, since political maps often require two levels of political approval in many states. “State legislatures will draw the maps and governors will sign the maps,” says Kelly Ward, the former executive director of the DCCC and now the executive director of the National Democratic Redistricting Committee. Although the Democratic strongholds of Maryland and Illinois are also known to be heavily gerrymandered, by beating Democrats at multiple levels everywhere else in the creation and oversight of elections law, Republicans could ensure unfettered power over creating maps, which with their technological and expertise advantages could then be used to redouble the advantages they’d just gained, in perpetuity. And in a case currently before the Supreme Court, the power to engineer gerrymanders that entrench political power for one party could soon be limited—or forever given the imprimatur of legitimacy.

To be sure, the extent of those advantages is still a matter of debate. The party line among Republicans is that Democrats have used the specter of gerrymander as a way to excuse lackluster politics. Matt Walter, the president of the Republican State Leadership Committee—the parent organization of REDMAP—agrees. “I think the reason that [redistricting] is attracting so much attention now,” Walter says, “is that having abysmally failed at virtually every level of government from presidential down to the state levels to run good candidates and to be successful in campaigns over the past several elections, the Democrats have been figuring out some way to rationalize that and figure out a way back.”

But let’s back up a bit. How exactly does redistricting work, and how did a project like REDMAP play out in practice? The Constitution doesn’t specifically outline a redistricting process, merely requiring proper apportionment of representatives to constituents. But in the redistricting processes that have developed since, politicians and parties with the most to gain from redistricting have generally owned them, which means they’ll usually do what they can to maximize party advantage.

Over time, more protections against rampant party manipulation have been built. The first layer of defense against politicians creating totally incoherent maps and gaming the republican system is found in the Equal Protection clause of the Fourteenth Amendment. As outlined in the Supreme Court ruling in the 1962 Baker v. Carr case, states have to redistrict every ten years in a way that keeps up with population shifts and keeps every district roughly equal in population. That’s called the “one person, one vote” rule.

Layered over that basic foundation are the laws that have dictated just how to truly guarantee equal protection under the law. Chief among those is the Voting Rights Act of 1965, which both prohibits the use of maps to dilute minority voting power and also dictates certain conditions under which creating special districts to protect them is required. On top of the VRA are further layers of court interpretations, tests, and principles—including the compactness and contiguity of districts and how well they preserve special communities of interest—that guide court decisions.

Under those rules, politicians are free to some extent to use redistricting for partisan advantage, sometimes bending or breaking the rules in the process. In practice, that means that national party infrastructures build coordinated redistricting efforts across states, during which they pour money into winning states each decade and then bring small armies of lawyers, consultants, and cartographers to create the new maps, which they then shepherd through rounds of public scrutiny, legislative battles, and then the inevitable court challenges and legal reviews that come up for any remotely controversial maps.

The incentive to gerrymander—or create irregular and incoherent districts that may or may not be legal—is strong. Although the Supreme Court has held that using redistricting to create partisan advantage can be unconstitutional, it also holds that some level of partisan gerrymandering is acceptable, and has so far declined to rule on where the line is, or if it can even determine a line at all. That means that as long as they can avoid the ire of the courts, politicians can use maps to corral opposing party’s voters in a few districts and create unbreakable party fiefdoms out of the other districts. The main limitations to gerrymandering outside of the courts have historically been the other party’s ability to fight gerrymanders (or create their own when in power) and the lack of precision in map-making capabilities.

According to John Ryder, the former general counsel of the Republican National Committee and the RNC Redistricting Committee chair during the 2010 redistricting cycle, “for the two parties, it’s both offense and defense. Parties try to try to maximize their opportunities and minimize their losses.” Ryder is a titan within the Republican redistricting brain trust, and has helped guide the party’s efforts for decades now. He cut his teeth challenging Democratic state maps in his native Tennessee, long a hotbed of gerrymandering challenges and the place where the foundational Baker v. Carr case created the modern gerrymandering game.

“When I started doing this in the mid-70s,” Ryder told me, “we were using handheld calculators, paper maps, pencils, and really big erasers. It was pretty primitive.” Even into the beginnings of the digital era, mapmaking was limited by computing power, the incredible burden of data management, the cost of hardware, the unwieldiness of computers, and the use of giant, slow map printers that literally drew maps with big markers. Through most of Ryder’s career, neither party really had the technology, expertise, or investment in redistricting to break open a national advantage.

That began to change in the ‘90s. By the 1990 redistricting cycle, much of the process had gone digital, but it wasn’t very precise. Although expensive minicomputers had already been supplanted by smaller and more powerful machines, they were still the primary platforms for redistricting software, which itself often could cost thousands of dollars. The process relied on massive amounts of Census data—including what are known as TIGER shapefiles that contain the geographic information in play—that were free, but often required expensive manipulation by outside corporations in order to be accessible. On top of the direct costs, the software was cumbersome and prone to error, came with massive manuals, and often required users to directly input long strings of code and commands to even get started.

The Caliper Corporation was a bit player in the mapping software markets then. The startup had almost accidentally come up with a desktop Geographic Information System—or GIS, the kind of software under which most modern mapping programs fall—around 1990, originally intended for use by transportation officials. But it was one of the first mass-market programs that could handle raw TIGER files, which attracted attention among the broader cartographical community. Caliper moved to create a more generalized application from the specialized transportation program and called the resulting desktop GIS software GIS Plus.

It wasn’t long before state officials got wind of the new program, and turned to Caliper and its president Howard Slavin for advice. “We came out with this product kind of in the middle of the 1990 redistricting cycle,” Slavin told me. “And we realized that this GIS Plus product was pretty good for redistricting.”

GIS Plus hit all the marks for savvy officials who wanted an edge in redistricting: It was cheaper than existing programs, ran on desktop computers, could digest Census data products, and required a much less monumental learning curve. It was also critical for outside entities who had no access to the backroom mapmaking processes and giant computers that state officials shelled out thousands of dollars for for a process that only happened once a decade. “It turned out that a whole bunch of people who wanted to become involved in redistricting, but didn’t have the big bucks came to us,” Slavin said. “The NAACP, the Southern Christian Leadership Conference, and lots of other minority groups used our product because it worked and it cost about $3,000 instead of hundreds of thousands of dollars. And it was also easier.”

1990 was a proof-of-concept, both for the burgeoning redistricting-industrial complex and for Caliper. The developer went from dipping its toes in the redistricting market to a full-scale commitment for the 2000 cycle, when it scrapped plans to make cheap redistricting extensions for existing software and created a brand new series of software called Maptitude, which features a special redistricting version. That version was more expensive than the jury-rigged GIS Plus copies that led the way in 1990, and also allowed even people who had very little training in mapping or programming to get their hands dirty and import voting data with ease.

Republican operatives saw an opportunity during the 2000 cycle, and adopted Maptitude at every level, adding a technological edge to a considerable organizing and funding lead and a surge in control of statehouses. Democrats were left scrambling, and largely lagged behind an increasingly sophisticated redistricting effort on the other side.

By 2010, Republicans were ready to turn the gap between the parties on all things redistricting into a chasm. Their aggressive campaign of sophisticated redistricting—often resulting in hyper-gerrymandered districts that had never been seen before—took not only Democrats off guard, but also members of the larger community of parties interested in redistricting. “We did not expect that Republicans would end up using this in the way they wound up using it, but that happened,” Slavin told me.

But use it that way Republicans did, and the REDMAP project, masterminded by former RNC chairman and current Virginia gubernatorial candidate Ed Gillespie, was a perfection of the strategies pioneered over the preceding decades.

With the levers of redistricting in vital areas firmly in party control, then it was time for the GOP consultants to pour into statehouses in 2011. A 2012 article in the pages of this magazine illustrates how that process worked via the example of Tom Hofeller, perhaps the most well-known—and notorious—of the Republican redistricting consultancy:

And so his cyclical travels take him mainly to states where the Republicans are likely to be drawing the new maps. (In most states, an appointed committee consisting of legislators from the majority party produces the map, which is then brought to the legislative body for a vote. Other states relegate the duties to an appointed commission.) At meetings, Hofeller gives a PowerPoint presentation titled “What I’ve Learned About Redistricting—The Hard Way!” Like its author, the presentation is both learned and a bit hokey, with admonitions like “Expect the unexpected” and “Don’t get ‘cute.’ Remember, this IS legislation!” He warns legislators to resist the urge to overindulge, to snatch up every desirable precinct within reach, when drawing their own districts.

State parties themselves have little control of the process rather, analytic consultants in the mold of Billy Beane came down and played “Moneyball” with the districts on the national party’s dime. Most of them used Caliper’s Maptitude program, and by 2010 both the software and the available data had become sophisticated and deeply specialized. According to Michael Li, senior counsel at the Brennan Center for Justice, “certainly, technology has gotten a lot more sophisticated, and it’s enabled map drawers to draw much more durable gerrymanders than they have in the past. That’s because state mapmakers now know a lot more about voters. That’s just an extension of the big data revolution that you also see in marketing and other politics.”

GOP consultants and some redistricting experts challenge the idea that increasing sophistication of redistricting has led to polarization, and often argue that redistricting merely reinforces a tendency for Democrats to cluster in cities, and solidifies a natural Republican geographic advantage—an argument about “spatial polarization.” Ryder told me that “I do not believe that redistricting is as powerful a weapon as perhaps some others do, in part because of this factor of spatial polarization.” Even researcher Jowei Chen at the University of Michigan, whose pioneering work has been instrumental to opponents of gerrymandering, said in a 2014 New York Times op-ed that “the Democrats’ geography problem is bigger than their gerrymandering problem.”

But those explanations fall short of explaining just why parties have ramped up redistricting efforts so heavily in the past three decades, and why Republicans especially have dug deep into the field of big data in order to gain advantages, including the use of consumer data and other huge political datasets in order to achieve one of the holy grails of redistricting: microtargeting below precinct lines.

Normally, precincts are the lowest level at which aggregated official political data is available. That makes sense, since precincts as designated and created by towns and counties are the primary unit of elections administration. But, with the rise of big data and big datasets, mapmakers have been able to scry—with remarkable accuracy—both the political leanings and voting likelihood of blocks and households, which then allow them much more fine-tuning of district lines. Whereas the previous generation of mapmakers may have been able to split some precincts based on some well-known neighborhood characteristics (say a neighborhood that was known to be integrated in an otherwise all-white community), in 2010, they gained a remarkable amount of precision and could place individual voters in buckets and then districts.

Some states restrict the available redistricting datasets in order to reduce this kind of microtargeting, but Republicans found a way around those restrictions as well. “A lot of the redistricting plans we’ve seen have split precincts in drawing lines,” says Allison Riggs, a senior attorney at the Southern Coalition for Social Justice, an organization that has challenged several redistricting plans. “When you split a precinct, all of the voter data—voter registrations and returns—kept at a precinct level, is lost. If you split a precinct, some of the only information available at a sub-precinct level is race data. It’s the Census data, which is available at a block level.”

In North Carolina, which has been at the center of seemingly every elections-law controversy in the past decade, the number of precincts split by 2011 House and state General Assembly maps reached almost comical levels. In the Dickson v. Rucho case, one of the slate of lawsuits over North Carolina maps that reached the Supreme Court, plaintiffs alleged that the three plans “divide 563 of the state’s 2,692 precincts into more than 1,400 sections.”

In those 563 problem precincts, the plaintiffs found a number of absurd scenarios. In one, “residents of one-and-a-half blocks of a small neighborhood street will receive three different ballot styles for the [2012] general election.” In another precinct, over the course of an election cycle, 18 different sets of ballots would have to be printed. And those problems weren’t unique to North Carolina’s electoral snafus: the 2011 maps in Virginia tripled the previous number of split precincts, and a coalition of voters of color in Texas alleged in 2011 that state lawmakers surgically split precincts in order to dilute Latino voting strength.

While that kind of tinkering didn’t dramatically reshape a whole lot of districts that had already been deeply gerrymandered by years of partisan mapmaking, the results of such micromanaging in the aggregate seem undeniable. Over the course of three elections since redistricting, North Carolina’s seats in Congress shifted from a 7-6 Democratic advantage to a 10-3 Republican advantage, an advantage ever more at odds with simulated delegations that predict a 7-6 or 6-7 split. In the 2012 elections, North Carolina, Virginia, Michigan, Ohio, Pennsylvania, Florida, and Indiana featured an average margin of victory of seven percent by Republicans in the total vote share, but a 76 percent advantage by Republicans in seats in the House. That same year, in Wisconsin Republicans only captured 48.6 percent of the state Assembly votes, but still garnered over 60 percent of its seats.

The most remarkable thing about those outcomes—which might appear undemocratic just on their face—is just how blatant the Republican strategy was. REDMAP’s goals are still up on its website. In North Carolina at least, constituents reported that mapmakers in the General Assembly shifted around mapmaking feedback sessions or simply ignored comment from outraged citizens. And anyone with access to the same kind of mapmaking arms that GOP consultants had could check their math and see just how distorted the districts were.

Many did, and that’s perhaps where the sudden aggressiveness of Republicans may have worked against them. “What we started seeing post-2010 was some of that software being more accessible to the public,” says Riggs. “There was even one decent online app that would allow citizens to redraw Congressional district lines. I anticipate that trend continuing such that by the time we come to the 2020 Census and the redistricting cycle that starts the following year that there will be even more programs online accessible to folks to draw maps.”

The increasing availability of computing power and of political mapmaking software empowered the groups that would launch a slew of challenges to gerrymanders. Justin Levitt, a law professor at Loyola Law School and an expert on redistricting, has kept track of these cases—and has testified in a few. “Since 2010, I’ve counted about 233 total challenges to the validity of state maps,” Levitt told me. “That’s not super dissimilar from 2000 or 1990 litigation is a sure thing. But you are starting to see the courts take an aggressive role towards policing harmful racial gerrymanders.”

Levitt stresses that technology has aided in successful challenges and has given power to citizen-led groups and partisan actors alike to challenge single-party dominance in mapmaking. “If you go back to Phil Burton, a representative in California drawing the maps in California with not much more than a roadmap and a pen, they were pretty precisely able to target exactly the pockets of voters they wanted to,” Levitt says. “There are more politicians able to do what the Burtons were able to do because of technology, but most importantly there are more of us who aren’t politicians who can do what the Burtons were able to do, and who are able to see the impact of the sorts of things the Burtons were able to do. It’s opened up the process so that many individuals and groups can have a swing at both recognizing what current districts and new proposals do, and also finding their own way into the process.”

The groups that have joined the technological arms race read like a who’s who among Supreme Court plaintiffs over the past few years. There’s the NAACP and its constituent chapters, the independent NAACP Legal Defense Fund, the League of Women Voters and its chapters, the Brennan Center, and a host of other smaller firms that have been empowered by the relative availability of redistricting tools via private and nonprofit sources. And as seen in cases like Cooper v. Harris and Covington v. North Carolina in North Carolina, when it comes to racial gerrymandering as restricted by the Voting Rights Act, plaintiffs have been uncommonly successful in sustaining complaints and using their own analytic tools to turn the scrutiny of courts to ever-more subtle breaches of the law.

Technology has also opened up the front of much more sophisticated means of challenging gerrymanders. Chen’s cutting-edge research has involved supercomputers and the use of simulations of hundreds of different possible maps in order to identify whether politician-drawn maps deviate deeply from expectations. “Something we’ve seen just in the last three or four years alone is a huge advance in some of the expert analysis of redistricting plans,” says Riggs, who has used these new tools in successful court challenges of multiple levels of gerrymanders. “What that allows us to do is to say ‘this plan that state X has enacted falls way outside the range of what you might expect redistricting plans to produce with basic criteria.’”

Those kinds of sophisticated analyses and simulations have also cast definitive doubt on the popular GOP contention that geographic sorting is more related to their ascendancy than gerrymandering. A July 2017 AP analysis of U.S. House and state legislature seats found that Republicans enjoyed consistent electoral advantages at all levels above their vote share. The Princeton Gerrymandering Project’s simulation analysis of 2016 U.S. House maps found that North Carolina, Michigan, and Pennsylvania failed all three of its gerrymandering tests, indicating consistent Republican advantage and a bias that can’t be explained by geography. The same project found that North Carolina, Wisconsin, Michigan, and Mississippi all failed those tests in 2016 state-house races as well.

This increasingly sophisticated battle between the politicians in charge of redistricting and their opponents has perhaps reached its zenith in a case currently being argued before the Supreme Court. The Gill v. Whitford case, which parties argued on October 3, has the potential to redefine their battle, and could offer either new tools for scrutinizing political maps or new cover to potential gerrymanders, depending on what the justices decide.

While the proliferation of new tools has seemingly increased both the rate of gerrymandering and the rate of successful challenges of those gerrymanders, so far all of that work has been done on the racial gerrymandering front. The Voting Rights Act of 1965 and subsequent court interpretations of that act and its revisions lay out some specific guidelines on when to look for racial gerrymanders—and when they are considered constitutional or not. The VRA actually compels mapmakers to consider race and bend maps to create majority-minority districts when a specific set of guidelines are met. Those preconditions are based in the political and geographic cohesion of the minority group in question, and on the likelihood of that group ever electing the candidate of its choice if not allowed a special district.

As illustrated in North Carolina’s first round of gerrymandering cases, racial gerrymanders are relatively easy to spot and challenge in court. In the Cooper v. Harris decisions, plaintiffs successfully argued that state GOP’s 2011 congressional map that increased the black voting-age population (BVAP) by four percentage points in District 1 and seven percentage points in District 12 was unconstitutional, since white voters didn’t tend to vote against black-favored candidates in District 1, and since the Court found that mapmakers violated previous specific court orders to avoid using race in the creation of District 12.

But in the next round of gerrymandering cases, the same GOP lawmakers after their Court rebuke in 2016 decided to draw new districts based purely on party identifiers that preserved Republican advantage. Several groups of plaintiffs sued, claiming that these new maps constituted partisan gerrymanders. But there is remarkably little legal guidance on just what constitutes a partisan gerrymander.

That issue is also at the heart of Gill v. Whitford, a case that percolated through federal courts to the Supreme Court after six years of legal drama. In 2011, Wisconsin GOP lawmakers used the opportunity of redistricting to create perhaps the most durable advantages of any single party in an American state—again, creating an electoral map that gave such a boost to Republicans that they could lose the overall vote totals and still pull in well over half of the seats in the state assembly. While the party eschewed the use of race factors that had so troubled their colleagues in other states, numerous qualitative and quantitative analyses found that their partisan factors—which themselves stand as reasonable proxies for race in many places—had created a major advantage.

Those analyses are the key question in Whitford. According to Jessica R. Amunson, an attorney who’s worked on multiple partisan gerrymandering cases as they’ve evolved in the courts and a lawyer for the plaintiffs in this case, this case is the culmination of an long analytical arms race. “Many partisan symmetry metrics have been developed and honed since the Court’s decision in Vieth and since Justice Kennedy’s opinion in the Vieth case,” Amunson says.

In that case, 2004’s Vieth v. Jubelirer, Justice Antonin Scalia’s decision on Pennsylvania congressional districts “concluded that political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist.” But Kennedy wrote in response that “if workable standards do emerge to measure these burdens … courts should be prepared to order relief.”

"There’s been a lot of academics working on various measures since then," says Amunson. The newest metric to reach the Court in Whitford is the “efficiency gap,” a tally of the “wasted” votes that happen either when a voter votes for a losing candidate or when a voter votes for a candidate who would have won anyways. That metric was created by Nicholas Stephanopoulos, a professor at the University of Chicago School of Law, and Eric McGhee, a research fellow at the Public Policy Institute of California.

“In 2006, when Justice Kennedy criticized the partisan bias measure, five members of the Court seemed to be interested in some kind of better measure of partisan gerrymandering,” Stephanopoulos told me. “Partisan bias asks: ‘If we had a hypothetical tied election, how different would the shares of seats be in that election?’ Justice Kennedy actually criticized that metric in the 2006 [League of United Latin American Citizens v. Perry] case.”

“Eric and I agreed with Justice Kennedy that we shouldn’t be conceptualizing partisan gerrymandering as what would happen in a hypothetical election,” Stephanopoulos continued. “We should be looking at what happened in actual elections, instead of trying to simulate—with fairly speculative techniques—outcomes in counterfactual situations. Eric had that insight and came up with his efficiency gap measure, which doesn’t rely on any hypotheticals or counterfactuals. It’s a metric that’s purely based on the actual election results.”

In the case of Wisconsin, that metric found an incredible asymmetry in the Wisconsin assembly maps, where Democrats are often in ultra-safe districts that in turn draw away Democratic voters from races where Republicans win more narrowly. Stephanopoulos’s and McGhee’s work shows double-digit statewide efficiency gaps in favor of Republicans in each election cycle since the 2010 redistricting.

As Stephanopoulos himself notes in an essay outlining his formula for Vox, the efficiency gap alone doesn’t do the job of marking a partisan gerrymander by itself. Old measures of partisan bias, lopsided wins, and mean-median difference still showed up in presentations to courts. And more sophisticated analyses also took stage. The whole supercomputer simulation thing—run by Jowei Chen—was used to generate theoretical Wisconsin assembly maps and then compare their efficiency gaps to Wisconsin’s actual situation. Chen’s simulation found that “144 of the 200 random districting plans produced by the non-gerrymandered computer simulation process exhibit an efficiency gap of within 3 percent of zero, indicating no substantial favoring of either Democrats or Republicans.” The remaining 56 simulations actually showed a slight natural favor to Republicans, but nothing approaching the double digits consistently encountered in the state.

These new advanced metrics may or may not sway Justice Kennedy, but more of these kinds of analyses will become the norm as gerrymandering itself becomes more and more complex, and as the ability to construct partisan advantages during redistricting increases. Whitford itself represents a sort of watershed case for gerrymandering: Here is where the end result of the most intricate, expensive, and contentious redistricting process in history meets the maturation of an analytical field created to rein it in, all under the aegis of a Constitution that did not foresee microtargeting and GIS.

As such, the real arms race ahead appears to be between citizens and their elected officials. As redistricting become more opaque, more sophisticated, and increasingly the domain of a multimillion-dollar party apparatus, it will be up to voters and the courts to level the playing field, both through democratizing technology and direct democratic measures. This is a uniquely American adversarial relationship between politician and constituent—most other functional democracies seem to have the good sense to not put politicians in control of who gets to elect them.


Power Grab: Activists, Shorts & The Masses

Caption: “Museum Attendant (in 1925) These instruments, known as stock-tickers, were in use in Wall Street up to the year 1914. They were abandoned when the public got out of the market, and they are now very rare.”

Visualizing History

From the Archives

Speculative Notes (1864)

What Is and What Is Not an Investment?

Investor Amnesia Course

Towards the end of last year I launched a brand new online financial history course covering Bubbles, Manias & Fraud. The course boasts more than six hours of content split into 37 videos across seven riveting topics like Railway Mania, the South Sea Bubble, Brewery Mania, and more. Students are taught this fascinating material by the world’s foremost investors and financial history experts.

Sunday Reads

r/WallStreetBets pooling together against Citron

Well 2006 is off to a great start! Wait – I mean 2021. One could be forgiven for thinking that we were actually living in 2006 given the types of stocks that have rallied 100% YTD in just 20ish days: GameStop and Blackberry. While it is nuts that either of these companies are rallying to the extent that they are, we are going to focus on GameStop because it is more interesting and has some fascinating historical parallels.

Here is Bloomberg’s summary of the madness transpiring with GameStop’s stock:

“In the battle between short-seller Citron Research and an army of Reddit-charged day traders, GameStop Corp.’s seemingly endless rally to an all-time high has given the stock’s bulls a win, though not without controversy.

GameStop’s 83% gain through Friday comes after it more than doubled the week before and marks the most volatile 10-day period on record, data compiled by Bloomberg show. The stock was halted at least four times in New York trading on its way to a a record close. The stock surged 51% Friday to $65.01.

At one point, the video-game retailer was the most actively traded U.S. company with a market value above $200 million, data compiled by Bloomberg show, as millions of shares exchanged hands every few minutes…

Reddit users continued to pump up their bets with one user saying they relied on it to pay their student loans.

GameStop’s parabolic rise, which has come amid steady and elevated short interest and increasing volume, has showcased the divide between retail bulls and bears betting on a quick return to reality. More than 193 million shares were traded on Friday, marking the most active day for the company since it went public in 2002.

GameStop became a “cult stock because of Ryan Cohen’s success with Chewy” and retail investors “appear confident that he can implement omnichannel initiatives that will materially grow their earnings,” Wedbush analyst Michael Pachter said in an email

Reddit’s ‘Angry Mob’

A backlash against Citron by some vocal Reddit users over its views on GameStop came to a head on Friday when the short seller said it will stop commenting on the stock following the actions of “an angry mob.”

“We are investors who put safety and family first and when we believe this has been compromised, it is our duty to walk away from a stock,” Citron managing partner Andrew Left wrote in a Friday letter.

The statement came a day after Left said in a YouTube video that he’d “never seen such an exchange of ideas of people so angry about someone joining the other side of a trade,” referring in part to Reddit users who have been particularly vocal on the social media site in seeking to promote their positive opinions on the video-game retailer’s stock.

GameStop is up 245% in January to date, with its average daily rolling 10-day volatility peaking at the highest level in the nearly two decades the stock has been trading, data compiled by Bloomberg show. Friday’s eye-popping surge fueled its market value above $4.5 billion at its peak.”

What I find fascinating about this whole saga is that it provides yet another example of how technology and the democratization of finance is – in certain situations – handing power back to the retail masses often at the expense of legacy groups that drive markets. We have seen countless times over the last year how retail fervor, and specifically the WallStreetBets subreddit can have a meaningful impact on markets.

As the articles linked today point out, in the past there have been concerns over competing with large institutions that may have an informational advantage they can use to manipulate prices, or concerns by short-sellers that amid a craze they should not short due to fears of being cornered if they did short. This week with GameStop and Citron, however, is an fascinating example of a well-known short seller being afraid to comment further in fear of triggering a Reddit community of individual investors that have demonstrated the power to move GameStop’s stock price against Citron.

Before we dive into this week’s post on the first activist campaign, market corners, short-squeezes, and more, I wanted to point out that I’m experimenting with a new format for the linked articles and I hope you enjoy. I think it’ll help you pull out key info faster and decide whether or not to read the linked paper.

Jacob Little and the First Stock Corner

Why This is Relevant:

I mean it’s a detailed look at the first stock market corner, what more do you want? Also, the phenomenal charts and historical insights we’ve come to expect from Global Financial Data are always a welcomed treat.

Summary:

“Jacob Little was the first and one of the greatest speculators on Wall Street. He engineered the first successful stock corner on the New York Stock Exchange in 1835, and was known as ‘Ursa Major,’ or ‘the Great Bear of Wall Street.’ Like any bear, he was loathed by the bulls, but through his stock operations, he became one of the richest men in the United States. Although Little is now mostly forgotten, his speculative expertise laid the foundation for Jay Gould, Daniel Drew, Jesse Livermore and others who followed in his footsteps.

Jacob Little was born in 1794. His father was a man of large wealth and distinction who was ruined financially in the War of 1812. Little’s father helped Jacob get a position with Jacob Barker, one of the leading merchants of New York. In 1822, Little started his own business as an exchange specie broker, dealing in banknotes issued by private bank, where he gained a ‘reputation as an honest, energetic, and successful broker.’ Jacob Little opened his own brokerage house in 1834 in the old Exchange Building in Wall Street, and for the next twenty-five years, Jacob Little & Co. dominated Wall Street. “

Visualizing History:

Notable Quote:

Shareholder Activism at the Dutch East India Company 1622 – 1625

Why This is Relevant:

Part of the reason why GameStop rallied so much this week was because activist investor Ryan Cohen recently wrestled control of three board seats from the company. Investors are optimistic about his ability to push the company in the right direction by expanding their online presence. This letter from the activist investor details what the company’s management team is doing wrong, and the remedies for their business woes.

This paper is fascinating because it takes a look at the Dutch East India Company and the first activist investor in market history: Isacc Le Maire. most modern activist investors, Le Maire penned a letter to management criticizing their control of the company’s finances and their transparency with shareholders. Now, to be fair, Le Maire was also a former East India Company board member that had been fired for embezzling funds from the company, but his activist campaign is interesting nonetheless.

Le Maire’s initial tactic was to set up an investment company dedicated to short-selling the Dutch East India Company’s stock in an effort to force management to comply with his demands:

“After Van Oldenbarnevelt rejected Le Maire’s request a month later, Le Maire, together with a few members, incorporated the Groote Compagnie, which engaged in short speculations on a large scale. Le Maire hoped that, if the share prices would fall below par value, the investors would ask their money back in 1612. This would require the VOC to be liquidated and would give Le Maire himself the opportunity to set up new trading companies. The partners of this Groote Compagnie supposedly spread false rumors and committed fraud.

The Groote Compagnie’s short speculations were initially successful: the price fell from 212% in 1607 to 126% in 1609.51 But they did not have the intended result. At the request of the Lords XVII, the States of Holland prohibited the trade in blanco actiën – shares one does not hold oneself. A counter-petition by several anonymous merchants who asserted that the falls in prices were the result of poor management did not succeed. Nor was the primary aim achieved, namely that, in compliance with the Charter of 1602, an audit would follow and the participants would be able to withdraw their money. According to the directors, an audit would play into the hands of the Spanish and English competitors. Moreover, long-term investments would preclude (partial) liquidation, which would be the consequence if the participants reclaimed their money. The directors argued further that investors had sufficient exit-opportunities at the stock-exchange…

Le Maire’s short speculations nevertheless resulted in dividends being distributed for the first time in 1610. Given the lack of liquid assets, it was decided that dividends would be distributed in mace at a value of 75% of the nominal capital. A second distribution followed soon afterwards, largely in kind and a small part in cash. That distribution in cash was made only on condition that the payments in kind were accepted. Several participants objected to the distributions in kind as these led to falls in prices on the market. Many of them did not object to the fact that it concerned a distribution in kind, but rather to the fact that distributions were calculated on the basis of too high a market price, owing to which they actually amounted to less than they seemed to. These participants later received a payment in cash at the same level in 1612, 1613 and 1618. In 1620 another dividend distribution of 37.5% took place. In total, during the first Charter, 200% of the nominal capital was distributed, which, based on a correct valuation of goods distributed in kind, comes down to about 7.5% a year.”

This article is a fascinating look at the earliest examples of activist investing.

Summary:

“This paper explores the reason for the absence of control rights of shareholders in the Dutch East India Company (VOC) and the background of the conflict between shareholders and directors that arose in 1622/1623 when the VOC Charter of 1602 was extended.

The VOC was the result of a merger between several companies that had been trading in the East Indies between 1594 and 1602. The legal structure of most of these “pre-companies” which were incorporated for a single voyage to the East Indies, prevented shareholders from having actual influence. In most of these companies, the shareholders invested their money, not in the company itself, but via one of the individual directors. The relationship between a shareholder and most of the pre-companies was therefore indirect, which impeded the exercise of control rights. Furthermore, shareholders may not really have been interested in their control rights given the high returns and the expectations of the newly opened trade route.

When these pre-companies were merged into the VOC in 1602, nothing changed with respect to the absence of shareholder control rights. The VOC, however, was established for a longer period and had to meet other more long-term challenges than those faced by the pre-companies. The failure to adapt the control structure to suit the different circumstances may have been a source of the conflicts that arose between the directors and shareholders between 1602 and 1623.

In 1622, upon extension of the 1602 Charter, a significant conflict erupted between the shareholders and directors. The so called dissenting participants complained about the numerous conflicts of interests that had been arising between the various directors and the VOC. They accused the directors of abuse of power, short-selling and self-enrichment. They argued that shareholder approval was required for the VOC to turn to the capital market to borrow funds. They also demanded that large investors be entitled to vote on the appointment of new directors. As the dissenting participants supported their arguments by referring to the English East India Company, the corporate governance of the EIC is briefly described.

Publishing their complaints in pamphlets, the shareholders mobilized public opinion and attempted to convince merchants not to invest in the Dutch West India Company, which was being incorporated at the same time. They exerted pressure on the government to ensure that more rights were granted to the shareholders when the VOC Charter was extended.

Theoretically, the activism of the “dissenting participants” was successful. The 1623 Charter granted certain rights to large investors, including the right to nominate new candidates for appointment as director. The 1623 Charter further regulated insider trading by the directors and encouraged the directors to pay a yearly dividend to the shareholders. In addition, a committee of nine shareholders was entrusted with the supervision of the VOC directors. This corporate body was known as the “Lords IX” (Heren IX). In practice, however, the directors were able to frustrate many of the corporate governance improvements.”

Visualizing History:

Notable Quote:

From Le Maire’s letter to management:

“The dissenting participants [shareholders] are not slaves, but free people in free countries. They only ask to be allowed to appoint administrators of their goods themselves, to whom they entrust such administration.

That this request is not unfair is evident from the fact that even the King of Spain gives merchants who sail to the East Indies and Spanish merchants who trade with the West Indies the opportunity to appoint the agents or bookkeepers of their goods to whom they themselves entrust such management. In England as well, one sees that the participants in the EIC have the most to say: they remain masters of their own goods and each year appoint and dismiss from their midst as they see fit a Governor, his deputy and the Court of 24 Committees, as well as an auditor. And each shareholder is entitled to inspect the books and merchandise and see how the goods are converted to cash. This is evident from a certificate from the English East Indies Board, of which the dissenting participants have obtained an authentic copy.

Does this not turn you pale, oh shameless directors! Or does no red blood flow through your veins? But neither law nor reason can make you change your minds. Other countries set the standard and you remain stuck in your old ways. You do not follow any good examples. It appears that although greed has not blinded you, it has indeed made you insensitive and leprous.

Large Investors, Price Manipulation, and Limits to Arbitrage: An Anatomy of Market Corners

Why This is Relevant:

What was so crazy about the events that transpired this week regarding GameStop was that it was largely fueled by a herd of retail speculators originating from a Reddit community. This paper dives into the history of market corners and the influence of large single investors / institutions. The GameStop / WallStreetBets example is an interesting microcosm of the modern market in that it is the opposite of what the authors’ of this paper outline. Due to social media, the internet, etc. large masses of smaller investors can move a company’s stock price in coordinated efforts like those of this week.

In the words of Michael Scott: “How the turn tables have…”

Summary:

“This paper investigates price and trading volume patterns around some well known stock market corners in US history. The analyses are based on a hand-collected new dataset of price and trading volume reported in the New York Times and Wall Street Journal from 1864-1928. We present strong evidence that large investors and corporate insiders possess market power that allows them to manipulate market price. Our results show that market corners as a result of manipulation tend to increase market volatility and could have an adverse price impact on other assets.

We demonstrate that the presence of large investors makes it extremely risky for short sellers to arbitrage mispricing in the stock market. This creates severe limits to arbitrage in the stock market that tends to impede market efficiency. It can create a situation when there can be overpricing but arbitrageurs are unwilling to establish a short position because of manipulation risk (in addition to fundamental and noise trader risk). Therefore, regulators and exchanges need to be very concerned about ensuring that corners do not take place since they are accompanied by severe price distortions and significant erosion of liquidity.

Visualizing History:

Notable Quote:

“In 1868, the whole floating supply of gold was about $20 million and the government held about $75 million in reserve. Jay Gould thought that this whole supply could be cornered and thus selling it at an inflated price. He conspired with Abel Corbin, the brother-in-law of President Grant, to influence government policy on gold. On numerous occasions, he lobbied Grant and government officials on the benefits of high gold prices. For a moment, it appeared that Grant was quite convinced. Gould proceeded to accumulate a $50 million position in gold and the price had risen from 130 to 137.

To increase his chance of success, Gould then launched an aggressive lobbying of government officials who began to suspect his speculative motives. Sensing the government might intervene to break his corner, he secretly sold his position while urging his friends to buy at any price. On October 4, the feverish purchase by Gould’s friends had pushed the gold price from 140 to 160, but government selling later during the day quickly broke the squeeze and brought the price back to $140. This day had gone down in history as another Black Friday, since hundreds of firms on Wall Street were ruined by the huge price swing.”

Squeezing the Bears: Cornering Risk and Limits on Arbitrage during the ‘British Bicycle Mania’, 1896-1898

Why This is Relevant:

This paper discusses how a fear of being cornered acted in itself as a short-sale constraint during the Bicycle Mania of the 1890s. In other words, people were hesitant to short these outrageously overpriced bicycle companies for a fear of being cornered.

While there are obviously major differences between the two situations, it is interesting that after the Reddit Army took on Citron Research in the GameStop war and drove prices up some 51% on Friday alone, Andrew Left of Citron came out and said that the firm would stop commenting on GameStop because of the actions of the “angry mob” (Reddit investors). There are some similarities between this fear of how other investors could force a short-squeeze and the situation covered in this paper on bicycle mania.

Summary:

“This paper argues that the risk of being cornered constituted a short-sale constraint that exacerbated an asset-price bubble in bicycle shares in 1896-1898. Although only three corners occurred, the losses experienced were so substantial that this still represented a significant source of additional risk. High-profile cornering incidents, in which short-sellers usually made extremely heavy losses, were typically followed by periods of relative buoyancy in the cycle share market, and the most severe cornering losses are associated with a structural break in the prices of other cycle shares. Furthermore, shares which were particularly vulnerable to a corner appear to have been more overpriced than the rest of the market.

Cornering risk is unlikely to have been the primary driving force behind the reversal in bicycle share prices it appears to have merely exacerbated overpricing, and slowed the subsequent downward adjustment of share prices. Nevertheless, the results of this paper suggest the need to reconsider the role played by short-sale constraints in historical asset-price reversals. The lack of regulation in early regional stock markets allowed investors to make unlimited naked short-sales, but also did nothing to ease the risks involved in doing so. Short selling therefore came to be seen as inherently dangerous, best left to specialist ‘bears’, who were subject to social disapproval. The limits this placed on arbitrage could form part of the explanation for the multiple asset-price reversals that occurred in early stock exchanges.”

Visualizing History:

Notable Quote:

“This is relevant for two reasons. Firstly, stories of members of the public making extravagant gains are likely to encourage other non-professionals to invest in cycle shares. The role of simple, colorful stories in spurring further investment in a bubble has been emphasized by Karl E. Case and Robert J. Shiller (2003). Secondly, holders of shares in other companies are likely to have become more inclined to join pooling operations. This may have been a factor in the development of the two further corners that took place in 1897, both of which required some small shareholders to commit to a similar arrangement. This, in turn, increases the cornering risk for short sellers to account for. The incident therefore would have made traders wary of short selling, while encouraging investment from uninformed investors. In combination, these factors could have contributed to the high price of cycle shares.”

What Moved Share Prices in the Nineteenth-Century London Stock Market?

Why This is Relevant:

Especially last year, and this year so far, markets have been driven by a lot more than just plain old fundamentals. This paper looks at the period between 1823 and 1870 to determine what drove market returns, and their findings posit that only 15% of the variation in stock prices are explainable by economic fundamentals. 15%!! This paper is a fascinating look at what really drives markets.


It’s the PowerPoint that redefined American politics

Demonstrators outside of the Supreme Court in Washingston, D.C. during oral arguments in Gill v. Whitford called for an end to partisan gerrymandering on Oct. 3, 2017. Olivier Douliery

Part 1 | The past is present: “The Supreme Court’s starring role in democracy’s demise”

Part 1 | The past is present: “It’s the PowerPoint that redefined American politics”

Part 2 | The present is future: “How Americans vote is threatened”

Part 2 | The present is future: “Russia’s not so little election helpers”

Part 2 | The present is future: “VOTE!”

Part 3 | The future is now “Political war-gaming for the Republic”

Part 3 | The future is now “The struggle to vote continues”

Part 3 | The future is now “Can in-person voting be made safe enough during the coronavirus pandemic? Yes”

Part 3 | The future is now “US elections need a fundamental reboot”

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Ten years ago, while Democrats were enjoying complete control of Washington and believed that changing American demographics would ensure large majorities for a generation, Ed Gillespie and his team at the Republican State Legislative Committee quietly hopscotched the nation and sold top conservative donors and lawmakers a different and audacious vision. Republicans would retake power in states and in Congress by weaponizing the oldest trick in the book: the gerrymander.

Gillespie outlined an elegant plan. Sure, 2008 had been a tough election for Republicans and historic for Democrats. But approached from the right angle — down-ballot, state legislative races — 2010 could prove far more consequential. After all, this wasn’t any old election. It was a census-year election. And following the census, state legislatures (in most states) redraw every state legislative and congressional district nationwide.

There would be 6,000 state legislators elected in the fall. Republicans, he said, would target 107 key races across 16 battleground states — including Florida, Wisconsin, North Carolina, Ohio, Michigan, Texas, and Pennsylvania. Success would change the GOP’s prospects overnight — and last for another decade. The strategy’s name? The Redistricting Majority Project. REDMAP for short. It produced exactly that.

Gillespie’s private presentation, which I obtained exclusively while reporting a book on REDMAP, lays out the stakes. Win those seats, and the GOP could fully control the drawing of nine new congressional seats after the decennial reapportionment of the US House of Representatives. They could affect the new maps in five states that would lose seats. And they could strengthen Republican redistricting power in swing states, wiping expensive competitive districts off the board and handing Republicans the dominant position in state legislatures and congressional delegations.

REDMAP succeeded beyond the GOP’s wildest dreams. It proved a bargain — and a heist. Republicans spent $30 million that fall, submerging slackjawed Democratic incumbents in sleepy local races under a torrent of sophisticated negative ads and sweeping control of those state legislatures. The following year, they locked Democrats out of the room and remapped Wisconsin, North Carolina, Pennsylvania, Michigan, Ohio, and more behind closed doors of secret “Bunkers” and “Map Rooms,” with the help of the most powerful computers, advanced mapping software, and precise data sets ever set loose on redistricting. And they haven’t lost power in any of these states yet.

We live in the nation REDMAP created. More than 59 million Americans — nearly 1 in 5 of us — live in a state where Republicans won fewer statewide votes during the 2018 elections but nevertheless control one or both chambers of the state legislature. There are no people who live in a state where Republicans win more votes but Democrats maintain power. In Wisconsin, where voters in 2018 reelected a Democratic US senator, defeated incumbent governor Scott Walker, swept Democrats into every statewide office, and preferred Democratic state assembly candidates by a margin of 200,000 voters, Republican maps provided an overwhelming 63-36 GOP majority anyway.

Gerrymandered maps remake policy. Sometimes it’s the difference between life and death. In Michigan, a gerrymandered legislature reinstated a controversial municipal emergency manager law that voters overrode via initiative. In Flint, that led to the emergency manager switching the city’s water supply to the Flint River. In Florida, after 64 percent of voters embraced a constitutional amendment restoring voting rights to 1.4 former felons, a gerrymandered legislature attached a 21st-century poll tax that would allow only a fraction of that number to re-register. In Ohio, Alabama, and Georgia, gerrymandered legislatures approved “personhood” bans on abortion despite public opinion polls that showed majorities opposed to these tough new restrictions, even in these reliably red states.

Gerrymandering makes elections less competitive and reincentivizes politicians to cater to extremes and act as an accelerant on polarization in divisiveness. In Wisconsin and North Carolina, half of all state legislative races lacked any major party challengers at all in 2016. In Georgia, that number was a staggering 80 percent. When general elections don’t matter, low turnout off-season primaries become all important, meaning politicians bend over backward to please their base — compromise and consensus-building become impossible.

Gerrymandering sends a new breed of politicians to Washington. In North Carolina, one of the congressional districts redrawn via REDMAP turned a consistent swing seat in the western part of the state into hard-core red territory. The moderate Democrat took one look at the new lines and retired. A local sandwich shop owner named Mark Meadows jumped into the race, ran on a “birther” platform of sending President Obama “back to Kenya or wherever it is he comes from,” and won the all-important primary. In Washington, Meadows helped overthrow then-Speaker John Boehner, orchestrated a government shutdown over Obamacare funding, and is now Donald Trump’s chief of staff. He’d still have the sandwich shop if not for gerrymandering.

Gerrymandering remakes history. Americans reelected Barack Obama, gave Democrats control of the Senate in 2012, and cast 1.4 million more votes for Democratic US House candidates. Republicans kept control of the House anyway, 234-201, and Obama’s second term agenda was over the night of his reelection.

Finally, gerrymandered state legislatures target voting rights, often as task one. Once politicians choose their own voters, they can build barriers that make it more difficult for the other side to vote. Republican legislatures have enacted new voter ID bills, purged voting rolls, closed precincts, eliminated early voting, and made it more difficult for activists to conduct voter registration drives. In Wisconsin, a federal court found that a voter ID bill there had the potential to keep as many as 300,000 voters from casting a ballot in 2016. Donald Trump carried the state by less than 24,000 votes.

Now, amid the coronavirus pandemic that may make in-person voting this fall dangerous, some of those same gerrymandered legislatures have toughened eligibility for absentee ballots, added onerous witness requirements, tightened voter registration procedures, and stopped secretaries of state from covering postage costs or sending mail ballot applications to everyone.

It’s a census year once more. Democrats seem aware of the stakes this time. But Republicans retain the upper hand and have a sophisticated plan for REDMAP 2.0. Yes, the White House is on the ballot this fall. But so is the next decade of maps. The president elected this fall wins a term that runs through 2024. No one gets another crack at these maps until 2031.


How Prisons Change the Balance of Power in America

The 14th Amendment, when combined with the War on Crime, has paradoxically disenfranchised vast swaths of the population and given the rural, white areas surrounding the prisons unforeseen political power.

What has it really cost the United States to build the world’s most massive prison system?

To answer this question, some point to the nearly two million people who are now locked up in an American prison—overwhelmingly this nation’s poorest, most mentally ill, and least-educated citizens—and ponder the moral costs. Others have pointed to the enormous expense of having more than seven million Americans under some form of correctional supervision and argued that the system is not economically sustainable. Still others highlight the high price that our nation’s already most-fragile communities, in particular, have paid for the rise of such an enormous carceral state. A few have also asked Americans to consider what it means for the future of our society that our system of punishment is so deeply racialized.

With so many powerful arguments being made against our current criminal justice system, why then does it persist? Why haven’t the American people, particularly those who are most negatively affected by this most unsettling and unsavory state of affairs, undone the policies that have led us here? The answer, in part, stems from the fact that locking up unprecedented numbers of citizens over the last forty years has itself made the prison system highly resistant to reform through the democratic process. To an extent that few Americans have yet appreciated, record rates of incarceration have, in fact, undermined our American democracy, both by impacting who gets to vote and how votes are counted.

The unsettling story of how this came to be actually begins in 1865, when the abolition of slavery led to bitter constitutional battles over who would and would not be included in our polity. To fully understand it, though, we must look more closely than we yet have at the year 1965, a century later—a moment when, on the one hand, politicians were pressured into opening the franchise by passing the most comprehensive Voting Rights Act to date, but on the other hand, were also beginning a devastatingly ambitious War on Crime.

From Voting Rights to the War on Crime

The Voting Rights Act of 1965 gave the federal government a number of meaningful tools with which it could monitor state elections and make sure that states with a particularly grim history of discriminatory voting practices would make no voting policy without its approval. The act had been intended to combat the intimidation and legal maneuvers—such as passage of poll taxes, literacy requirements, and so-called “Grandfather clauses”— that had left only 5 percent of black Americans, by the 1940s, able to vote, despite passage of the 14 th and 15 th amendments after the Civil War.

But the very same year that Lyndon Johnson signed the Voting Rights Act of 1965, he also signed another Act into law: the Law Enforcement Administration Act (LEAA), a piece of legislation that, well before crime rates across America hit record highs, created the bureaucracy and provided the funding that would enable a historically and internationally unparalleled war on crime.

So, at the very same moment that the American Civil Rights Movement had succeeded in newly empowering African Americans in the political sphere by securing passage of the Voting Rights Act of 1965, America’s white politicians decided to begin a massive new war on crime that would eventually undercut myriad gains of the Civil Rights Movement—particularly those promised by the Voting Rights Act itself.

From the War on Crime to Mass Incarceration

Thanks to LEAA and America’s post-1965 commitment to the War on Crime, and more specifically, thanks to the dramatic escalation of policing in cities across the nation as well as the legal changes wrought by an ever-intensifying War on Drugs, between 1970 and 2010 more people ended up in prison in this country than anywhere else in the world. At no other point in this nation’s recorded past had the economic, social, and political institutions of a country become so bound up with the practice of punishment.

By the year 2007, 1 in every 31 U.S. residents lived under some form of correctional supervision. By 2010, more than 7.3 million Americans had become entangled in the criminal justice system and 2 million of them were actually locked up in state and federal prisons. By 2011, 39,709 people in Louisiana alone were living behind bars and 71,579 were either in jail, on probation, or on parole. And this was by no means a “southern” phenomenon. In Pennsylvania, 51,638 people were actually locked behind bars in 2011 and a full 346,268 lived under some form of correctional control by that year.

The nation’s decision to embark on a massive War on Crime in the mid-1960s has had a profound impact on the way that American history evolved over the course of the later 20 th and into the 21 st centuries. As we now know from countless studies, such staggering rates of incarceration have proven both socially devastating and economically destructive for wide swaths of this country—particularly those areas of America inhabited by people of color. This nation’s incarceration rate was hardly color blind. Eventually one in nine young black men were locked up in America and, by 2010, black women and girls too were being locked up at a record rate.

Diluting our Democracy

So how did this overwhelmingly racialized mass incarceration end up mattering to our very democracy? How is it that this act of locking up so many Americans, particularly Americans of color, itself distorted our political process and made it almost impossible for those most affected by mass incarceration to eliminate the policies that have undergirded it at the ballot box? The answer lies back in the 1870s and in a little-known caveat to the 14 th Amendment.

Ratifying the 14 th Amendment was one of Congress’s first efforts to broaden the franchise after the Civil War. A key worry among northern politicians, however, was that since white southerners could no longer rely on the notorious “three-fifths” rule to pad their own political power, they would now try to inflate their census population for the purposes of representation by counting African Americans as citizens while denying them to access the ballot.

So, to prevent any power grab on the part of ex-Confederates, Congress decided to add so-called Section 2 to the 14 th Amendment. Firstly it stipulated that any state that “denied” the vote “to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States” would have its representation downsized in proportion to the number of individuals being disenfranchised. Secondly, Section 2 allowed for the disenfranchisement of otherwise eligible citizens—without affecting representation—if they had participated “in rebellion, or other crime.” The idea here was to keep those who had committed crimes against the Union and those who might still be in rebellion against the Union from wielding political power in the wake of the Civil War.

This latter provision of Section 2, however, proved damaging to black freedom—political and otherwise. Almost overnight, white southerners began policing African Americans with new zeal and charging them with “crimes” that had never before been on the books. Within a decade of the Civil War, thousands of African Americans found themselves leased out and locked up on prison plantations and in penitentiaries.

Southern whites, of course, profited from these new laws politically as well as economically. By making so many blacks into convicts, whites could deny them the right to vote under Section 2 without undermining their state’s census population for the purposes of political representation. And, because of another clause of another Amendment, the 13 th , which allowed the continuation of slavery for those who had committed a crime, these same white southerners were able to force thousands of newly imprisoned black southerners to work for free under the convict lease system.

Fast-forward 100 years when, in the wake of the Civil Rights movement, another War on Crime began that also, almost overnight, led to the mass imprisonment of this nation’s African American citizens.

In 1974, as the numbers of imprisoned Americans was rising precipitously and when states once again began to disfranchise individuals with criminal convictions, the U.S. Supreme Court was asked in a landmark case, Richardson v. Ramirez, to rule explicitly on the issue of whether it was constitutional under the 14 th Amendment to disfranchise those serving, or who have served, time in prison. The court did the same thing that many southern states did after the Civil War—it interpreted Section A of the 14 th amendment very, very differently than it was intended to be interpreted. It, too, decided that disenfranchisement would be permitted when a citizen was convicted of any crime, without regard to whether such crimes might be thought of as ideologically analogous to rebellion or were more likely to affect African Americans than others.

Notably, Justice Thurgood Marshall dissented vigorously in this case. The purpose of Section 2, he argued, was clearly to enfranchise, not disenfranchise, former slaves and their descendants. Marshall’s fellow members of the bench, though, felt that their decision would not have any discriminatory effect because the nation already had the Voting Rights Act of 1965 to handle this issue.

And yet, the negative impact of Richardson v. Ramirez on African American voting was vast and immediate. By the year 2000, 1.8 million African Americans had been barred from the polls because so many felon disfranchisement laws had been passed in states across the country after 1974. Not only were their votes not counted in that year’s hotly contested presidential election, but by the next presidential election a full ten states, according to The Sentencing Project, had "African American disenfranchisement rates above 15%," which clearly affected the outcome of that contest as well.

By 2006, 48 out of 50 states had passed disfranchisement laws and, with more than 47 million Americans (1/4 of the adult population) having criminal records by that year, the nation’s political process had been fundamentally altered. By 2011, 23.3% of African Americans in Florida, 18.3% of the black population of Wyoming, and 20.4% of African Americans in Virginia were barred from the ballot.

According to sociologists Jeff Manza and Christopher Uggen, not only did African Americans pay a high price for the disfranchisement policies that accompanied the nation’s War on Crime, but so did liberal voters in general. According to their research, such policies “affected the outcome of seven U.S. Senate races from 1970 to 1998 . . . [and] in each case the Democratic candidate would have won rather than the Republican victor” and these outcomes likely “prevented Democratic control of the Senate from 1986 to 2000” as well.

Distorting our Democracy

Disfranchising thousands of voters is only part of the story of how mass incarceration has distorted American democracy. Today, just as it did more than a hundred years earlier, the way the Census calculates resident population also plays a subtle but significant role. As ex-Confederates knew well, prisoners would be counted as residents of a given county, even if they could not themselves vote: High numbers of prisoners could easily translate to greater political power for those who put them behind bars.

With the advent of mass incarceration, and as the number of people imprisoned not only rose dramatically, but also began moving urbanites of color into overwhelmingly white rural counties that housed prisons, the political process was again distorted. In short, thanks to this process that we now call “prison- gerrymandering,” overwhelmingly white and Republican areas of the United States that built prisons as the War on Crime escalated got more political power, whereas areas of country where policing was particularly concentrated and aggressive, areas in which levels of incarceration were, as a result, staggering, lost political power.

Consider research by the Prison Policy Initiative showing how voters across the country gain political power from housing a penal facility. In Powhatan County, Virginia 41% of the 5th Board of Supervisors District that was drawn after the 2000 Census were actually people in prison and in both the First and Third Supervisory Districts of Nottoway County, approximately ¼ of their population comes from large prisons within the county. In the case of Southampton County, such prison-based gerrymandering means that votes of those citizens who live there are worth almost more than twice as much as votes cast in other districts that have the required number of actual residents.

In Michigan as well, mass incarceration has meant distorted democracy. A full four state senate districts drawn after the 2000 Census (17, 19, 33 and 37), and a full five house districts (65, 70, 92, 107 and 110) meet federal minimum population requirements only because they claim prisoners as constituents. Similarly in Pennsylvania, no fewer than eight state legislative districts would comply with the federal "one person, one vote" civil rights standard if non-voting state and federal prisoners in those districts were not counted as district residents.

Why We Should Care

As Americans go to the polls this November to vote on criminal justice issues that directly affect our lives—ranging from proposals to decriminalize marijuana, to roll back three strikes laws, to fund more prison construction—the massive carceral state that we are trying to shape at the ballot box has already distorted our democracy. Americans’ power to even rethink, let alone undo, the policies and practices that have led to mass incarceration via the franchise has been severely compromised—in no small part due to the fact that the parties that benefitted the most from the rise of this enormous carceral state are now empowered, seemingly in perpetuity, by its sheer size and scope.

There are, of course, other ways to dismantle the carceral state. Indeed, history shows us that we ended the brutal convict leasing system of the Post-Civil War era not by going to the polls but by grassroots and legal activism. Nevertheless, we should all be concerned about the ways mass incarceration has eroded our democracy. Even if we don’t care about the record rate of imprisonment in this country—despite its myriad ugly consequences, its unsustainable cost, and its particularly devastating fallout on communities of color—when the principle of “one person, one vote” no longer has real meaning in a society, and when political power is no longer attained via its people but rather through a manipulation of their laws, we must all question the future of our nation.


How Partisan Gerrymandering Limits Voting Rights

Every 10 years, each U.S. state redraws its electoral districts—lines on a map that have serious real-world consequences. If districts are drawn fairly, then the public can elect representatives who reflect the views of the population as a whole. But if the district lines are manipulated through partisan gerrymandering, then the legislature will be untethered from the popular will.

The Center for American Progress has published a series of reports that analyze how partisan gerrymandering affects issues from gun violence prevention to access to health insurance to policies that are important to children and families. 1 This issue brief explores how gerrymandering affects voting rights. In recent years, gerrymandered legislatures have pioneered other tools to stay in power, including making it harder for voters who oppose them to cast a ballot. It is a power grab on top of a power grab.

Fortunately, both of these interrelated problems—gerrymandering and limits on the right to vote—are fixable. Indeed, citizens across the country seem to be fired up about reform. 2 This could be the political moment to solve these problems and get American democracy back on track.

This issue brief examines the only four states where, after the 2018 elections, the party that won a majority of state legislative seats received only a minority of the total statewide vote: North Carolina, Michigan, Pennsylvania, and Wisconsin. Because of gerrymandering, these four states dramatically failed a basic test of democracy—votes did not translate into political power. To make matters worse, gerrymandering has since gone hand in hand with increased restrictions on voting in each of these states. In other words, legislative majorities that received a minority of the votes have used their unearned power to make it harder for citizens to cast a ballot, further distancing themselves from accountability at the ballot box. CAP’s solution to this problem is highlighted in the final section of this issue brief: empowering independent commissions to draw voter-determined districts that reflect the will of the people.

North Carolina

In 2013, the U.S. Supreme Court struck down a part of the Voting Rights Act that, in order to prevent racial discrimination, required many North Carolina counties to “preclear” voting changes with the U.S. Department of Justice. Just one month later, the state’s Republican-controlled legislature passed harsh new restrictions on voting, “[requiring] strict voter ID to cast a ballot, [cutting] a week of early voting and [eliminating] same-day voter registration, out of precinct voting and pre-registration for 16- and 17-year-olds.” 3 One headline called the new law “The Country’s Worst Anti-Voting Law.” 4 The bill was approved 73-41 in the state House and 33-14 in the Senate not a single Democratic legislator voted in favor of the bill’s enactment, nor did any Republican legislator oppose it. 5 Ultimately, the law was struck down by the 4th U.S. Circuit Court of Appeals, which found that the restrictions were intended to “target African-Americans with almost surgical precision.” 6

In 2018, North Carolina voters passed a state constitutional amendment through a ballot measure 7 that requires voters to “present photographic identification before voting.” 8 However, the amendment also specified that the Legislature was required to pass implementing legislation, “which may include exceptions.” 9 Less than one month later, at a moment when Republican lawmakers knew that, despite their gerrymandering, they had lost their veto-proof majorities in the next session, the Legislature quickly passed a bill implementing the new requirements—which made exceptions but “declined to allow voters to use the types of photo IDs that black voters were more likely to possess.” 10 Gov. Roy Cooper (D) vetoed the bill, but the Republican majority voted unanimously to override the veto, along with two Democrats. 11 A legal challenge to this new law eventually made its way to the North Carolina Court of Appeals, where the court found that the law “allows for exceptions to any voter ID law, yet the evidence shows the General Assembly specifically included types of IDs that African Americans disproportionately lack,” such as driver’s licenses, passports, and military IDs. 12 The court ordered that North Carolina could not enforce the law because it had the discriminatory intent of suppressing African Americans’ votes. 13

  • In the 2018 North Carolina Senate election, Democrats received 50.5 percent of the vote, but Republicans won 57.9 percent of the seats. 14
  • In the 2018 North Carolina House of Representatives election, Democrats received 51.2 percent of the vote, but Republicans won 54.2 percent of the seats. 15

Absent gerrymandering, this effort to disenfranchise voters would have been reversed by the Legislature. In December 2018, Democratic legislators introduced the Let North Carolina Vote Act to establish affirmative policies such as automatic voter registration and same-day registration, as well as expanded online registration and early voting. 16 The bill also would have partially defanged the state’s voter ID amendment by providing free IDs to anyone in need of one and by loosening restrictions on acceptable forms of identification, including allowing voters to use IDs that are expired. 17 According to one of the bill’s sponsors, the bill was not expected to pass through the Republican-led legislature but was intended to show that state Democrats were united behind reforms that would make it easier for people to vote. 18 Democratic candidates won a majority of the statewide vote in 2018 with a fair set of districts, they would have held a majority of seats in the state Legislature and been able to implement positive reforms expanding voting access. Instead, supporters of expanding voting rights in the Legislature have been blocked from passing more equitable laws and forced to rely on the courts to ensure equal access to the ballot.

Michigan

After gerrymandering districts in 2010, Republican lawmakers in the Michigan Legislature blocked several bills between 2011 and 2016 that would have made it easier to register and vote, including proposals to allow same-day voter registration and no-excuse absentee voting. 19 In the absence of these reforms, voters were required to register nearly a month before Election Day, and only those with certain excuses qualified to receive an absentee ballot. 20 Thus, it was unusually difficult for some Michigan residents to register and vote—particularly young people, who are more mobile and more likely than older Americans to miss traditional registration deadlines due to unfamiliarity with election requirements. 21 Out of all 50 states, Michigan saw the largest gap in voter turnout between 18- to 24-year-olds and the general population during the 2016 election. 22 Nonetheless, Republican legislators refused to modernize the voting process, claiming without evidence that changes would open the state up to widespread voter fraud. 23

In 2018, frustrated by continued legislative inaction, voting rights groups in Michigan, led by the American Civil Liberties Union, gathered signatures for a ballot measure to expand voting rights. 24 By a 2-1 margin, voters approved the ballot measure—Proposal Three—which amended the state constitution to allow no-excuse absentee voting and same-day registration during early voting and on Election Day. 25 Any voter in Michigan can now apply to receive an absentee ballot without an excuse—an option that has proven essential for helping mitigate public health risks during the COVID-19 pandemic. 26 Although a majority of voters clearly favored these reforms, a ballot measure was the only way to enact them, as they stood little chance of passing through Michigan’s gerrymandered Legislature, despite broad support from Democratic legislators. Notably, that same year, Michigan voters also passed an anti-gerrymandering ballot measure proposed by the grassroots group Voters Not Politicians, transferring the power to draw districts from the Michigan Legislature to a new Independent Citizens Redistricting Commission. 27

  • In the 2018 Michigan Senate election, Democrats received 51.3 percent of the vote, but Republicans won 57.9 percent of the seats. 28
  • In the 2018 Michigan House of Representatives election, Democrats received 52.4 percent of the vote, but Republicans won 52.7 percent of the seats. 29

Notwithstanding these advancements, Michigan voters still face myriad obstacles to voting. Michigan law continues to prohibit anyone from hiring transportation services—such as taxis or rides through Uber or Lyft—to help voters reach their local polling place, unless the voter is physically unable to walk. 30 Another law prohibits anyone other than a family member from returning a voter’s absentee ballot application. 31 Such restrictions disproportionately disenfranchise young and elderly Americans, people of color, and people with disabilities who may live far from polling places and lack reliable transportation or who may require physical assistance in returning their ballots. Both laws are currently being challenged in court, 32 but the majority in the Legislature has so far refused calls to eliminate these restrictive requirements. In fact, the Legislature, along with the Michigan Republican Party and National Republican Committee, have intervened to defend both rules in the ongoing suit. 33 In February 2020, Michigan Democratic Party Chair Lavora Barnes responded, “When you deny communities a voice in our political process, that’s rigging the game. When you fight to keep laws that disproportionately deny black and brown voters access to the ballot, that’s ‘rigging the game.’” 34

Other restrictions on voting have been resolved, belatedly, outside the Michigan Legislature. In 2018, state law required that certain first-time voters who registered by mail or through registration drive must vote in person and that voters’ current address must match the address on their driver’s license. 35 A group of Michigan-based college students brought a lawsuit challenging these restrictions, arguing that they created unnecessary and discriminatory barriers to voting, particularly for young people. Democrats had previously attempted to pass legislation expanding access to vote by mail for first-time voters but were blocked from doing so. 36 Upon entering office in 2019, Michigan’s newly elected Secretary of State Jocelyn Benson (D) settled the case, declaring invalid the requirement that certain first-time voters cast ballots in person and instituting a voter education campaign and other initiatives to ensure college students were able to register to vote using their campus address. 37

Had Michigan’s district maps reflected the will of state voters, many restrictive laws would no longer be in place. Yet as long as Michigan’s maps are gerrymandered, legislators will continue to obstruct commonsense election reforms while preserving oppressive laws that disenfranchise many of their own constituents.

Pennsylvania

In 2012, Pennsylvania’s Republican-controlled Legislature followed a familiar tactic in the voter suppression playbook—it passed a strict voter ID law requiring all Pennsylvania voters to present a specific form of identification, such as a driver’s license or passport, when showing up to vote. 38 The measure, which passed 104-88 in the state House and 26-23 in the Senate, was unanimously opposed by Democrats as well as a handful of Republican dissenters. 39 Voter ID laws have repeatedly been shown to discriminate against people of color, low-income Americans, young people, the elderly, and people with disabilities. 40 Furthermore, in this instance, partisan politics was a driving force behind the bill. Pennsylvania House Majority Leader Mike Turzai told a group of fellow state Republicans, “Voter ID—which is going to allow Governor Romney to win the state of Pennsylvania—done,” an acknowledgement that the law would suppress voting in communities that were more likely to support Democratic candidates. 41 A state court struck down the law in 2014. 42

  • In the most recent elections for each Pennsylvania Senate seat, in 2016 and 2018, Democrats received 50.5 percent of the vote, but Republicans won 54.2 percent of the seats. 43
  • In the 2018 Pennsylvania House of Representatives election, Democrats received 54.1 percent of the vote, but Republicans won 58.0 percent of the seats. 44

In 2019, the Pennsylvania Legislature passed a bill largely along party lines—111-88 in the state House and 31-19 in the Senate—that would have prohibited straight-ticket voting. Only four Democratic members in the House and three in the Senate voted in favor of the bill. 45 Many Democrats warned that the rule change would cause longer lines and confusion at the polls, placing a particular burden on “under-resourced polling locations,” predominantly those located in communities of color. 46 In 2018, a federal judge blocked a similar law in Michigan because it was expected to disproportionately affect African Americans. 47 Pennsylvania Gov. Tom Wolf (D) vetoed the bill, but it came at a cost: He also had to forgo $90 million in needed upgrades for the state’s voting machines, to which the Legislature had attached the provision banning straight-ticket voting. 48 Ultimately, Gov. Wolf and the Republican-controlled Legislature entered into an agreement to eliminate straight-party voting in favor of new voting reforms and $90 million in election funding. 49 The compromise legislation was opposed by a majority of Democrats who remained concerned over potential disenfranchisement. 50

Compared with other states, Pennsylvania has been slow to adopt vital policies that help Americans register to vote and cast ballots that count. The state lacks same-day voter registration and automatic voter registration. 51 Democratic lawmakers have introduced bills to establish these and other pro-voter policies that, if adopted, would significantly expand the ability of Pennsylvania residents to make their voices heard. 52 Gov. Wolf has similarly expressed his support for automatic and same-day registration. 53 Unfortunately, there is no reason to believe these policies will be adopted given that, for most of the past decade, the gerrymandered Legislature has worked to erect—rather than remove—barriers to voting.

Wisconsin

In Wisconsin, gerrymandering shifted control of the state Assembly outright in 2018, from Democrats who won a majority of the statewide votes to Republicans who fell short of a majority. In the Senate, Democrats fell 1 percent short of a majority of the vote, likely because of aggressive voter suppression targeting communities that disproportionately support Democrats. 54

  • In the most recent elections for each Wisconsin Senate seat, in 2016 and 2018, Democrats received 49.0 percent of the vote, but Republicans won 54.2 percent of the seats. 55
  • In the 2018 Wisconsin State Assembly election, Democrats received 54.2 percent of the vote, but Republicans won 63.6 percent of the seats. 56

In 2011, Wisconsin’s newly Republican-controlled Legislature passed one of the strictest voter ID laws in the country. 57 The bill passed 60-35 in the state Assembly with all Republicans voting in favor, along with one independent and two Democrats. 58 In the Senate, the measure passed along strict party lines every Senate Democrat voted against the bill. 59 The now-infamous law requires Wisconsin voters to present a driver’s license, passport, or other specified form of identification when voting. 60 In 2016, it was estimated that nearly 300,000 registered voters lacked necessary forms of identification leading up the general election. 61 Many of the individuals without qualifying ID were people of color, young people, and elderly people. Since taking office in 2019, Gov. Tony Evers (D) has attempted to make obtaining requisite ID easier and more accessible. 62 However, the gerrymandered Legislature has declined to relax or eliminate the requirement, even in the face of a pandemic.

The Wisconsin Legislature has also fought in favor of a mass voter purge of more than 200,000 people. 63 The Legislature persuaded a federal court to dismiss a lawsuit that sought to prevent the voter purge, expressing concern over the fact that notifications sent by the state failed to inform voters of the consequences of not re-registering. 64 An attorney for the Republican-controlled body requested that the suit not be considered until a related legal proceeding filed by conservative activists—which supported the removal of voters from the rolls—could be resolved. 65 Mass voter purges are especially common in places with histories of racial discrimination. 66 Wisconsin Democratic Party Chair Ben Wikler has condemned the purge as anti-democratic, saying in December 2019, “We’re supposed to have a system where voters choose their elected officials, not a system where the powerful choose who the voters will be.” 67

Legislators’ disdain for free and fair elections was on full display in spring 2020 when Wisconsin voters were forced to risk their lives to vote amid the COVID-19 pandemic. The Republican-controlled Legislature refused to heed desperate warnings from government and public health officials who noted that proceeding with the state’s April 7 primary election as planned would endanger voters and election workers and exacerbate community spread of COVID-19. 68 As described in a CAP column:

“The Republican-controlled Legislature’s refusal to postpone the primary ensured that state and local leaders did not have enough time to prepare by implementing necessary measures for conducting the election safely and efficiently. As a result, Americans were forced to make a terrible choice between shielding themselves against COVID-19 and exercising their fundamental right to vote.” 69

Across the state, hundreds of polling places were shuttered, with thousands of poll workers resigning due to health concerns. 70 Early voting was slashed or eliminated entirely in some locations, and thousands of requests for absentee ballots were never fulfilled. Recent reports suggest that election activity led to a spike in new COVID-19 cases. 71 Prior to the election, Democrats in the state Legislature proposed a package of bills that would have made the election safer by expanding access to absentee voting and rescinding voter ID requirements during state emergencies. These proposals would have protected voters from having to endanger their health by traveling to in-person polling places and visiting the Department of Motor Vehicles to obtain a qualifying ID. 72

Republican legislators seemed to view low voter turnout as a possible advantage to the re-election of an incumbent conservative state Supreme Court judge. 73 Not to be dissuaded from exercising their fundamental rights, Wisconsin voters turned out in large numbers and unseated the favored judge, 74 though they had to risk their health in the process.

How to fix gerrymandering and restore voting rights

If majorities of voters cannot elect majorities of legislators, that is a failure of democracy. If those ill-gotten majorities then use their power to disenfranchise voters, that is a democratic downward spiral.

Fortunately, voters and reform advocates have the capacity to fight back. As more and more citizens and political leaders have come to understand the problem of partisan gerrymandering, there has been a slow but steady string of anti-gerrymandering victories. Several states, including California and Arizona, have put reforms in place that prohibit politicians from drawing their own districts, entrusting independent citizen-led commissions to draw the districts instead. 75 In Michigan, citizen-activists passed a ballot initiative to create their own independent commission with specific criteria for district-drawing. And in 2019, the U.S. House of Representatives passed a bill—H.R. 1, or the We the People Act—that would require every state to use independent commissions to draw their federal districts. 76 The bill was blocked by the U.S. Senate under Majority Leader Mitch McConnell, but it lays a strong foundation for future reform efforts. 77

As CAP explained at length in a previous report, 78 taking the power to draw districts away from incumbent politicians is the first step toward any serious reform. The second step is instituting voter-determined districts, wherein people’s votes dictate how districts are drawn. If 55 percent of voters support one political party, for example, then that party should win as close as possible to 55 percent of the seats. In a democracy, this is the commonsense path to actually representing the will of the people. Finally, districts should be drawn so that people who have been underrepresented throughout American history—such as African American, Latinx, and other communities of color—are fully represented in Congress and state legislatures. 79

Majority rule is a cornerstone of U.S. democracy—and so is the right to vote. Fortunately, in many cases, the two go hand in hand. Fixing gerrymandering is a major part of undoing the democratic downward spiral in the United States and ensuring that democracy, at every level, serves the values and interests of its citizens.

Alex Tausanovitch is the director of Campaign Finance and Electoral Reform at the Center for American Progress. Danielle Root is the associate director of Voting Rights and Access to Justice at the Center.


The great Tory power grab: how they plan to rule for ever

Since the Conservatives’ narrow election victory, they have been quietly reshaping the political system to give them a permanent advantage. Will any other party be able to challenge their dominance in future?

A ‘political chess player’: the chancellor George Osborne. Photograph: Andy Rain/AFP/Getty Images

A ‘political chess player’: the chancellor George Osborne. Photograph: Andy Rain/AFP/Getty Images

Last modified on Thu 7 Mar 2019 19.46 GMT

T wo months ago, the chancellor and would-be prime minister George Osborne invited an unusual visitor to Downing Street. Robert Caro, the American biographer of Lyndon Johnson, US president half a century ago, had dinner and answered questions from Osborne and selected Conservative MPs.

Johnson was a Democrat, and one of America’s most left-leaning leaders. But he was also famously ruthless. “I do understand power, whatever else may be said about me,” Caro’s biography quotes him saying. “I know where to look for it, and how to use it.”

Osborne, too, is even more interested in power than most politicians – the accumulation of it for him and his party, the denial of it to others. “Osborne is a political chess player,” writes his biographer Janan Ganesh. The chancellor’s “grand strategy”, Ganesh continues, is “the calculated use of [government] policy” to alter Britain permanently in the Conservatives’ favour. Since school, Osborne has been a keen reader of political history books. His favourite, reportedly, is Caro’s Johnson biography.

A few weeks after Osborne met Caro, on 25 November, the chancellor produced his latest economic and political blueprint, the 2015 autumn statement. Half-hidden within it, and not mentioned by Osborne in his accompanying speech to parliament, was a proposed cut in “Short money”, state funding for all opposition parties, of 19%. “It came out of the blue,” says Katie Ghose, head of the pro-democracy pressure group the Electoral Reform Society. “The cut could make a huge difference to the capacity of opposition parties to operate.”

Since the Conservatives won their crafty but narrow election victory in May, they have made other subtle and not-so-subtle adjustments to the playing field of British politics. In October, they gave MPs in England, where their majority is much more solid than in the UK as a whole, greater voting rights than non-English MPs on matters deemed to affect England alone – “English votes for English laws”, or Evel for short.

In August, the prime minister David Cameron created 26 new Conservative peers. Even the usually Tory-supporting Times was uncomfortable at what it saw as an ongoing effort to “pack” the sporadically rebellious House of Lords with government supporters: “Mr Cameron has now created more peers than any other modern prime minister.” Government proposals for taming the Lords further, by reducing its powers to veto legislation, are expected to be slipped out before Christmas.

The House of the Lords: the government is attempting to tame the Lords further, by reducing its powers to veto legislation. Photograph: Ben Stansall/PA

The current trade union bill, too, looks like an attempt to give the Tories an impregnability that their small Commons majority does not. By requiring that trade unionists take the trouble to opt in individually to union funds for political parties, even though those funds are already subject to regular ballots, the bill threatens to cut off much of Labour’s largest and longest-established source of money. Meanwhile, the bill’s many proposals to make strikes and other union activities more difficult, particularly in the public sector, suggest a state-shrinking government crudely trying to minimise opposition to its policies. In September, the Financial Times, usually no friend of unions, said the bill was “out of proportion”, and would “threaten basic rights of assembly and free expression”.

This year, the government has also increasingly menaced the BBC, another potential centre of resistance, or at least, subjected it to inconvenient scrutiny. During the election campaign, according to the corporation’s then political editor Nick Robinson, Cameron responded to a BBC story that displeased him by telling journalists: “I’m going to close them down after the election.” Within days of winning it Cameron appointed John Whittingdale, long an advocate of drastically shrinking the BBC, as his culture secretary, responsible for negotiating the BBC’s charter, which sets out how the corporation operates, and which expires next year.

“The Tories have found themselves in government, probably to their surprise, and they’ve realised that their hold on power is thin,” says Norman Baker, the former Lib Dem MP and coalition minister, who lost his seat in May. “They want to make sure they stay there. There’s a window, until the opposition reasserts itself.” In August, Baker warned in the Independent that Britain was in danger of becoming “a one-party state”. He wrote: “Those interested in the continuation of a viable multi-party democracy need to wake up.” The Labour MP Chris Bryant, shadow leader of the Commons, is blunter: “I think the Conservatives are rigging the system massively.”

John Whittingdale, Cameron’s culture secretary, has long been an advocate of drastically shrinking the BBC. Photograph: Hannah Mckay/EPA

The part of the Conservative power grab that most alarms Bryant and Baker, and also more neutral observers, is the most stealthy and technical, but also the most fundamental. It concerns who gets to vote in general elections, and how they are arranged into constituencies.

In July, against the advice of the independent Electoral Commission, the government announced that it was accelerating the introduction of a new and controversial system for registering voters, Individual Electoral Registration (IER), so that it could be used for elections from the spring of 2016 onwards, including next year’s for London mayor. In theory, IER, which requires voters to register themselves, is a modern, much-needed replacement for the old system of registering voters by household, which was rooted in 19th-century assumptions connecting voting to property ownership. The system was occasionally exploited by electoral fraudsters, and more often was unable to cope with the fluidity of contemporary life – which meant that by 2015, one voter in 10 was left unregistered. The legislation for IER was introduced by Gordon Brown’s Labour government, with Conservative and Lib Dem support, in 2009.

Yet since then it has become steadily more clear that, in practice, the new system does not work well for some types of voters. “Inner-city areas, especially those with young and/or student populations and high levels of privately rented property, are most at risk,” according to a report on IER published last month by the left-leaning thinktank the Smith Institute, titled 10 Million Missing Voters! Another recent study, by the pro-diversity pressure group Hope Not Hate, found IER to be most inadequate in places with a lot of “multiple occupancy housing” and “regular home movers”. London and Scotland were the worst affected areas, potentially losing 6.9% and 5.5% of their voters respectively.

The electoral consequences of all this may be profound. London and Scotland, the inner cities, university towns, voters under 25 – these are all contexts where the Conservatives still struggle. At the last general election, according to the pollsters Ipsos Mori, the Conservatives received the support of only 27% of 18- to 24-year-olds. Labour got 43%. The government’s rushed introduction of IER fits a pattern, Baker argues: “Since the election Osborne has gone round saying: ‘Where are the threats to us? Where is the opposition? How can we damage it?’”

Norman Baker, former Lib Dem MP: warned Britain is in danger of becoming ‘a one-party state’. Photograph: David Levene/The Guardian

The government denies that its voter registration reforms are in any way party-political. “Individual electoral registration is to tackle election fraud, to remove ghost voters who don’t exist or have moved on, to make sure we have a clean and fair electoral roll,” said the minister for the constitution John Penrose last month. “The answer to under-registered groups like young people is … to run a vigorous and energetic voter-registration campaign. Which we will do.”

But there are already signs that this campaign, which has been cut short by a year by the early introduction of IER, may not have been as effective as advertised. This month, the university city of Cambridge, which has a Commons seat with a tiny Labour majority of 599, became one of the first places to publish a register of voters compiled using IER. Its electorate had shrunk by more than 10,000. In Liverpool, which has no Conservative MPs, it was down by more than 14,000.

Under voter registration reforms, the number of registered voters in Liverpool shrunk by more than 14,000. Photograph: UK City Images/Alamy

Next spring, the latest review of parliamentary constituency boundaries is due to begin, based on the contentious new electoral register. The results are to be published in the autumn of 2018, well in time for the next general election in 2020. The body carrying out the review, the Boundary Commission, is respected and independent. But everything else about the review has long filled many non-Conservatives with foreboding.

On average, a Labour-held constituency currently contains about 5% fewer voters than a Tory one. Some analysts say this is down to a long-term population drift away from the broadly Labour-supporting north and inner cities, and towards the broadly Tory south and suburbs. But others point out that some inner-city populations are no longer falling but rising, and instead blame the lower rates of voter registration in many Labour areas. Either way, evening out constituency sizes has long been a Conservative ambition.

The boundary review is also intended to cut the number of MPs from 650 to 600. The idea of downsizing the Commons was first mooted by Cameron in 2009, in the aftermath of the parliamentary expenses scandal, to “reduce the cost of politics” in an age of austerity. But this bland rationale sits oddly with Britain’s rapidly rising population, and Cameron’s enthusiasm for a larger House of Lords. Bryant says the real motive is strengthening the Conservatives’ Commons position. Inside and outside the Tory party, the expectation is that pruning and evening up the constituencies will improve their advantage over Labour by up to 30 seats.

In 2013, a Conservative attempt to achieve all this collapsed when they fell out with the Lib Dems over parliamentary reform in general. But now the Tories are in government unencumbered by coalition partners, little can stop the boundary review – and this time, its effects will be magnified because of its use of the new electoral register. According to an investigation last year by the psephologist Lewis Baston: “It could result in a gerrymandered electoral map in which the cities are disproportionately under-represented.” The Labour stronghold of London alone may end up with at least half a dozen fewer MPs than its population merits, he writes. “Whether this is deliberate or not, it would be a disaster for democracy.”

It is possible that the idea of the Tories engineering a permanent supremacy is scaremongering by the other parties. Labour have a history of seeing every boundary review as almost an existential threat, just as many Labour supporters see every general election defeat as the start of perpetual Tory government. But the Conservative power grab fits the pattern of their spending cuts, which have affected Labour councils much more than Conservative ones, and which have hit Britain’s left-leaning young much more than its right-leaning pensioners. And the appetite of the Conservatives to rule and to marginalise their enemies should not be underestimated. In September, within moments of Jeremy Corbyn being elected Labour leader, Conservative headquarters sent an email to its footsoldiers: “WE CAN’T EVER LET LABOUR BACK INTO POWER AGAIN.”

Labour leader Jeremy Corbyn: the Labour stronghold of London could be weakened by boundary changes. Photograph: David Levene/The Guardian

“George Osborne has got this hegemonic project, to construct a Conservative party state, and to reverse what he sees as the client state that Labour built up,” says Tim Bale of the University of London, a historian of the modern Tory party. “While you can’t quite say he’s gerrymandering, he’s aware that there’s quite a lot you can do on these technical, ‘boring’ issues.” Bale points out that Osborne is an avid student of both contemporary American politics, where the manipulation of constituency boundaries for party advantage is taken for granted, and of 19th-century British politics, when exactly who was able to vote was perhaps the most crucial and closely fought issue. But in today’s relatively apathetic Britain, Bale continues, “Who’s going to get exercised about this stuff? Who’s going to take the time to understand it? These are issues that get traction among the chattering classes, at best.”


Full court press: GOP's state-level power grab goes far beyond Trump

By Paul Rosenberg
Published February 18, 2018 12:00PM (EST)

(Getty/Photo Montage by Salon)

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After Cris Dush, a Pennsylvania Republican state representative, sent a memo to colleagues on Feb. 5 asking them to cosponsor articles of impeachment against five of the state’s seven supreme court justices for “misbehavior in office,” a Daily Beast headline identified Dush as “Baby Trump.”

And for good reason: In true Trumpian fashion, Dush issued his impeachment call two days before the court released its full 139-page decision that offended him so. The decision, in League of Women Voters v. Pennsylvania, struck down the state’s gerrymandered congressional maps, which had allowed the GOP to win 13 of 18 congressional seats every election since 2012, even when Democrats won a majority of the popular vote statewide.

In many respects, the Pennsylvania opinion’s combination of traditional legal reasoning and careful analysis of statistical evidence echoed that of a federal district court that handed down a 205 page decision on Jan. 9, striking down North Carolina’s partisan gerrymander in Common Cause v. Rucho. But unlike the North Carolina decision, the Pennsylvania Supreme Court decision had no appeal or other delay hanging over it. It called for new maps in time for the 2018 primary elections. Democrats could win as many as four additional seats in the Keystone State this year. Tick, tock.

It's no wonder Dush rushed to denounce something he couldn’t possibly understand, claiming that the ruling “blatantly and clearly contradicts the plain language of the Pennsylvania Constitution.” It was no doubt based on his deep legal background as a retired corrections officer.

But it’s a big mistake to think this all began with Trump. As noted on Gavel to Gavel, the blog of the National Center for State Courts, Dush’s impeachment plan was only the “latest in a 13-year national trend to threaten impeachment for judicial rulings.”

Although far-fetched and ill-founded, Dush’s plan wasn’t an idle threat, since — due to gerrymandering in the state legislature as well — Republicans have the votes necessary to get rid of the court majority. Though none of the earlier impeachment threats were carried through, they’re part of three troubling wider patterns, which Salon discussed with two experts from the Brennan Center, Michael Li, an expert on redistricting, and Alicia Bannon, an expert on state courts:

First, there were multiple other GOP norm-breaking power plays afoot in Pennsylvania around this gerrymandering case, with echoes in other states as well, as explained by Li.

Second, as described, there have been multiple other state legislative threats to unseat, replace, displace or otherwise restrict judicial power when it conflicts with GOP legislative power grabs. In January alone, the Brennan Center found that “legislatures in at least 14 states are considering legislation that would diminish the role or independence of the courts,” specifically:

    • Twenty-three bills in eight states would inject greater politics into the way judges are selected.
    • Four bills in four states would increase the likelihood of judges facing discipline or retribution for unpopular decisions, or would politicize court rules or processes.
    • Six bills in three states would cut judicial resources or establish more political control over courts in exchange for resources.
    • Four bills in three states would manipulate judicial terms, either immediately removing sitting judges or subjecting judges to more frequent political pressures.
    • Four bills in four states would restrict courts’ power to find state legislative acts unconstitutional.

    Third, these state-level actions fit within an even larger pattern, that of a long-term conservative project to undo the liberal constitutional/political advances of the 20th century, a struggle that gives rise to what legal scholar Mark Tushnet calls “constitutional hardball,” which I’ve written about before on several occasions.

    “For me, hardball involves doing things that are legal in the technical sense (so 'lawbreaking power-plays' aren’t hardball, they’re just lawlessness), but that are inconsistent with political norms,” Tushnet told Salon via email.

    When I described Tushnet’s concept to Bannon, she said she saw "a lot of similarity" to the Republican assault on state courts. "Most of the insulation the courts enjoy [from political pressure] is a matter of norms and traditions, and I do think we’re seeing some chipping away at that.”

    Either side can play constitutional hardball, which Tushnet elsewhere describes as “practices that are constitutionally permissible but that breach previously accepted norms of political behavior, adopted to ensure the smooth functioning of a government in a two-party world, engaged in precisely to disrupt that smooth functioning.”

    There’s a reason that Republicans do much more of it: Ever since the New Deal, they’re the ones who have been determined to fundamentally change our political system. Their norm-breaking efforts to do so have shifted dramatically from the far-right political margins toward the center. In the 1960s, the John Birch Society put up billboards — mostly in the South — demanding the impeachment of Chief Justice Earl Warren. Last year, Senate Majority Leader Mitch McConnell delivered a stolen Supreme Court seat to Donald Trump to fill. That’s a stark indication of how far they’ve come.

    Voter suppression, gerrymandering and other anti-democratic features of our political system, such as the Electoral College, have played key roles in this process. Republicans have won the popular vote in just one presidential election since 1988. (And that was in 2004, with George W. Bush running for re-election as a "war president.") In 2012, while Obama won re-election by almost 5 million votes, Democratic House candidates won a narrower national plurality as well (by about 1.4 million votes) but did not come close to winning a congressional majority.

    The day after that election, Mother Jones highlighted seven key states Obama had carried in 2008, but where Republicans had subsequently controlled redistricting: Florida, Michigan, North Carolina, Ohio, Pennsylvania, Virginia and Wisconsin. The official results confirmed their findings: The GOP's House victory was entirely attributable the gerrymandering of those seven states.

    Across those seven states, Republicans got 49.3 percent of the vote to 48.5 percent for Democrats -- a nearly even split. But Democrats won fewer than one-third of the House seats in those states: 34 out of 107. For the rest of the country, the net results were closely aligned — meaning that any partisan gerrymandering was balanced out. Democrats received 48.3 percent of the vote and Republicans got 46.2 percent accordingly, Democrats won a narrow majority of those seats, 167 to 161.

    These seven states offered clear-cut evidence of the central role gerrymandering plays in shoring up Republican power. Indeed, it's the driving engine behind all three of the patterns described above. (Gerrymandering state legislatures is important in itself, also important for gerrymandering the House.) These patterns are easy to recognize if one is willing to abandon a knee-jerk “both sides do it” view that makes it impossible to see what's really going on.

    First, let's deal with the widespread impression that geographic clustering -- meaning the undisputed fact that Democrats largely live closer together in metropolitan areas -- gives Republicans a “natural advantage” when it comes to drawing district lines. Second is the notion that both parties are equally motivated to gerrymander. Here's what Cook Political Report’s U.S. House Editor, Dave Wasserman, tweeted in early January:

    There are two problems with these propositions, starting with the fact that they are mutually contradictory. If you point to Maryland as an example of Democratic gerrymandering (as in Benisek v. Lamone) to prove the second point, for example, then you’ve highlighted an example where the concentration of Democrats in urban areas did not give Republicans a “natural advantage.” Such an advantage only exists if you choose the right set of “natural guidelines.”

    The second problem is history — especially the recent history dating back to the last cycle of redistricting, when the GOP’s $30 million REDMAP strategy changed everything. This has been explored by former Salon editor David Daley in his book "Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy," and again in his report on newly uncovered REDMAP documents published earlier this month.

    “I have tremendous respect for Dave Wasserman's work, and relied on it in doing my own, but we do disagree here,” Daley responded by email. “Did Republicans simply have four times more power to remap in 2011 than Democrats? Sure! But not in a vacuum. As part of a deliberate strategy -- and one that we need to understand and come to grips with if we want to rescue our elections from turning into decennial food-fights over redistricting, with results locked in for years to come.”

    Daley argued that “political geography is a minor issue” in the states where partisan gerrymandering has been so toxic. “Both of the three-judge panels that declared the Wisconsin state assembly map and the North Carolina congressional map to be redrawn as unconstitutional partisan gerrymanders carefully evaluate -- and firmly reject -- the Republican assertion that these maps were tilted by geographic clustering. . [T]ime and again the courts have made clear that it's not the reason for the partisan bias contained in this decade's maps.”

    But the federal courts are grinding exceedingly slowly, and there can be no assurance how today’s hyper-political Supreme Court will rule, or whether it will do so in time for the 2018 elections. Which underscores just why LWV v. Pennsylvania is so important: it’s going into effect almost immediately, in time for the full 2018 cycle. But it’s also built to last on state constitutional grounds that other states could follow as well.

    As constitutional and election law scholar James Gardner explained, the decision didn't break much new ground, yet represented "a potentially significant development in gerrymandering jurisprudence," because it found the facts sufficient "to trigger the constitutional prohibition" of the gerrymandered map. If the upcoming federal case, Gill v. Whitford, does not establish a clear partisan gerrymandering standard, LWV v. Pennsylvania could influence other states to follow its lead, as has happened in other areas where the Supreme Court has dragged its feet, such as gay marriage.

    As Brennan Center redistricting expert Michael Li told Salon, the LWV decision looks to be one of the most important court rulings of the decade. “This was an easy case, because Pennsylvania's 2011 map is one where you can just look at you can kind of tell it's probably wrong,” he continued, “but the court itself recognized there may be harder cases” -- and laid the groundwork for dealing with them.

    “On page 118 of the decision, it talks about ‘artificially entrenching representative power,’" Li explained. "Artificial entrenchment is something we can measure, from a social science perspective, and measure through multiple lenses. Once you have a constitutional harm that is measurable, that's been articulated, all future cases can be judged fairly easily on that basis."

    More than anyone, Princeton neuroscientist Sam Wang has helped bring those "multiple lenses" to the fore, describing a variety of them in a Stanford Law Review article, and making them available to explore at the Princeton Gerrymandering Project. One powerful strategy is to generate large ensembles of maps, then compare the existing plan with a sample universe of possible alternatives.

    In the North Carolina case, Duke mathematician Jonathan Mattingly generated a 24,518-plan ensemble, and found that the outcome of the existing plan “occurred in less than 0.7 percent of the simulated plans.” In the Pennsylvania case, Wesley Pegden of Carnegie Mellon took an even more dramatic approach, generating approximately 1 trillion alternatives, of which 99.999999 percent had less partisan bias. Both produced evidence that could not be explained by political geography.

    In January, Wang co-authored an explainer after the North Carolina decision, and on Feb. 13 he posted a graphic from Philly.com on his blog to show how badly Pennsylvania fared on five different measures of partisan gerrymandering — a clear indication how mainstream this once obscure subject has become. Not only are the statistical lenses available to the courts, they’re in front of the public as well.

    Li also agreed with Gardner that other states might follow Pennsylvania’s lead. “Pennsylvania has shown that digging down into a state’s own constitutional tradition, there may be a lot of richness there, that challengers to partisan gerrymanders can hang their hats on,” Li said. “There are 12 states that have a 'free and equal' [elections] clause that uses the same language as Pennsylvania, and those are listed in a footnote in the court's opinion.”

    Even beyond that, Li said, “Every state has analogues to the First Amendment and the Equal Protection clause, and they all have their own state constitutional tradition. A lot of times the state constitutions come in at a time of reform, and so there's a lot of history there that suggests that they could be interpreted more broadly than the federal Constitution, which was written some 200-some years ago. . It reminds us that we should not forget the state constitutional tradition, which is rich, colorful and may be surprisingly vibrant.”

    That, in turn, helps us understand why Republicans have become so heavily involved in political machinations to interfere with the courts — machinations that the Brennan Center and the National Center for State Courts have long tracked.

    Republican-sponsored bills attacking the courts “are, collectively, deeply troubling," Bannon said, "and reflect a real challenge to the role of courts as we normally understand them in our democracy. Courts play a particular role in our constitutional system, and that includes hearing cases, interpreting the law and sometimes finding the law is inconsistent with the Constitution and striking it down. To give the legislature the power to effectively override that is very much in tension with the lines we normally draw between the job of the court and the job of the legislature.”

    Dush-style impeachment efforts for political purposes — as opposed to criminal or ethical violations—are the most blatant example of this tendency. One report from the Center for Study of State Courts noted “a dramatic increase in not only the threats to impeach state court judges because of their decisions, but the actual drafting of legislation to that effect.”

    The Massachusetts Supreme Judicial Court ruling legalizing same-sex marriages provided the initial spark, causing bills in April and May 2004 to remove the four justices responsible for the ruling. An Oklahoma resolution would have condemned Massachusetts for the ruling and requested impeachment, while a bill in Virginia would have labeled any such decision in that state as malfeasance in office, subject to impeachment. A Maryland trial court ruling drew a similar effort in 2006. After Iowa’s Supreme Court unanimously found gay marriage legal in 2009, three judges were voted out of office in 2010, and the remaining four were subject to an impeachment effort.

    All these efforts failed, but that did not so much deter this campaign on the right as redirect it. Another report in September 2011 on “Codified, Anticipatory Impeachment Threats” noted 14 impeachment bills in seven states during that year alone, adding that “state legislators in several states have struck on a new formulation anticipatory impeachment threats placed into law.” These proposed laws cast a much wider net, trying to create new legal grounds for impeachment, such as a 2010 Arizona bill prohibiting “use or citation of religious sectarian law or foreign law.”

    In an amusing paradox, a 2009 Florida proposal would have made it impeachable to rule “adverse to the doctrines of stare decisis, binding precedent, or the supremacy clause of the United States Constitution,” while a 2010 Iowa bill would have prohibited judges from using “judicial precedent, case law, penumbras, or international law as a basis for rulings.” So following precedent could get you impeached in Iowa, whereas not following precedent would get you impeached in Florida!

    Except for Iowa, most of these were relatively obscure, below-the-radar efforts. But they reflected widespread right-wing sentiments, and help us understand the background for a few more dramatic higher-profile clashes. None of those has been bigger than in North Carolina, as the Brennan Center’s 2017 report explained:

    North Carolina’s experience is particularly noteworthy. Since Democrats won control of the governor’s office and the state Supreme Court last November, the state’s Republican-controlled legislature has passed a series of laws that weaken the governor’s power over judicial selection and entrench Republican control in the lower courts — normalizing political interference in the rules governing how judges are chosen and how courts are structured.

    One new law reduces the size of North Carolina’s intermediate appellate court by three seats, thus preventing the governor from filling vacancies that are expected to open when several (Republican-appointed) judges step down due to the state’s mandatory retirement age. The bill was passed without input from the court of appeals, its judges, or the courts’ administrative body.

    This dovetails with a larger overview from the Election Integrity Project, which announced that North Carolina no longer qualified as a functioning democracy after the 2016 election. EIP co-developer Andrew Reynolds wrote that the state's "overall electoral integrity score" of 58 points out of 100 ranked "alongside authoritarian states and pseudo-democracies like Cuba, Indonesia and Sierra Leone."

    When it comes to the integrity of the voting district boundaries no country has ever received as low a score as the 7/100 North Carolina received. North Carolina is not only the worst state in the USA for unfair districting but the worst entity in the world ever analyzed by the Electoral Integrity Project.

    Extreme gerrymandering wasn’t the only problem Reynolds highlighted. He also cited an attempt to limit "citizens’ rights on the basis of their born identities" (a reference to North Carolina's anti-trans H.B. 2), along with "targeted attempts to reduce African-American and Latino access to the vote and pernicious laws to constrain the ability of women to act as autonomous citizens."

    Reynolds analyzed the Republican legislature's attempt to undermine a Democratic governor as a sign that "government in North Carolina has become arbitrary and detached from popular will," and "a direct attack upon the separation of powers that defines American democracy."

    There is an upside: People are fighting back. “I do a lot of work on issues around the courts," Bannon said, "and it’s oftentimes hard to get people to pay attention. It seems more technical, more abstract than other issues that might affect people in a more immediate way. But obviously courts are fundamental for everything else, if you want your rights to be protected. In North Carolina there have been protests. There have been crowded town halls. There's been a lot of public attention to these efforts. . I think this has broken through in a way that ordinary people are seeing this affecting them, and they are pushing back against it.”

    Republicans are still winning day-to-day battles in North Carolina: With a gerrymander-based legislative supermajority, they can override any veto by Gov. Roy Cooper, the Democrat elected in 2016. But with the broader public finally engaged in the fight for fair courts, the Tar Heel State's predicament could help lead the way out of the political wilderness of the last several decades.

    Other states have seen similar power grabs proposed. In Washington state, there was a proposal to divide the Supreme Court into districts and reduce the court from nine justices to five. Proponents argued in last year’s hearings that the “intensely liberal” Seattle was skewing elections, since eight of the nine justices in office were from the western, more urban part of the state. A similar move has been contemplated in Oklahoma, with a proposal to require that two state court justices must come from counties with populations of fewer than 75,000.

    Add to all this the massive influx of dark money — documented in a recent report Bannon co-authored, which found that “only 18 percent of interest groups’ outside expenditures during 2015-16 could be easily traced to transparent donors” — and the need for citizens to get involved and fight to reclaim the courts could not be clearer. Conservatives have understood the importance of this battle for decades. It’s long past time for progressives to stop playing whack-a-mole and start playing some hardball of their own.

    Paul Rosenberg

    Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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