Tuesday, November 22, 2016

The Courts Go After Gerrymandering: Deconstructing a Conflict-of-Interest

In the U.S., the boundaries of both federal (e.g., U.S. House of Representatives) and state legislative districts are redrawn every ten years after the census to “ensure that each district contains roughly the same number of people.”[1] Both major political parties in state legislatures “often remap districts to favor themselves, either by cramming opposition voters into a single district or by dividing them so they are the majority in fewer districts.”[2] I contend that a simple majority vote is problematic, given the irresistible temptation to redraw the districts for partisan advantage rather than merely to take account of changes in population.
By a 2-to-1 ruling, the U.S. District Court for the Western District of Wisconsin found in November, 2016 that the Wisconsin Assembly’s redrawing the legislative chamber’s districts was an unconstitutional partisan gerrymander favoring the Republican Party. U.S. courts had struck down gerrymandering on racial grounds, but never on “grounds that they unfairly give advantage to a political party.”[3] For the first time, a court offered a clear mathematical formula for measuring partisanship in a district. The Court found that the legislature’s redrawing of its districts violated both the First Amendment and the Equal Protection Clause of the 14th Amendment because the remapping “aimed to deprive Democratic voters of their right to be represented.”[4] The motive here is problematic, for it puts partisan advantage above the duty to act for the public good by fairly adjusting for changes in population.
In other words, the ability of the party that controls a legislature to use the census-adjustment responsibility for private (i.e., party) ends puts the party in a conflict of interest. The party being in the majority of a state legislative chamber is sorely tempted to put partisan goals above the democratic aim of achieving fair districts. Democracy itself suffers so a majority can remain in the majority.
One solution to this conflict of interest is to require a 2/3rd majority (or majorities in both parties) to approve changes in the districts. The latter pertain to the entire legislative chamber, as part of its basis in representative democracy, so it is only fair that at least some of the minority party approves.
My main point here is that going by simple majority enables, or sets up, the conflict of interest. Given the overwhelming force of the partisan temptation, the conflict should be deconstructed. In fact, all institutional conflicts of interest that can reasonably be taken apart should be, due to how ongoing temptation plays out in human psychology/nature.

1. Michael Wines, “Judges Find Wisconsin Redistricting Unfairly Favored Republicans,” The New York Times, November 21, 2016.
2. Ibid.
3.  Ibid.
4. Ibid.