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Tuesday, December 11, 2018

Today on CONLAWPROF


The recent election results which followed political gerrymanders and other recent opportunistic reassignment of powers within state governments by lame duck legislatures—they have been described as “cheating”, “monstrous”, etc. I inquired about specifying the scope of the rule from which one could conclude that anything wrongful had happened. No one came forward with anything like a substantive answer. Had there been such an answer as to the scope of the rule, then I would have inquired about the source of that rule.

Professor ZZZ’s answer is to tell me what I already know and what no one could reasonably deny—that gerrymandering exists and it produces identifiable winners and losers—ex ante and ex post. I don’t disagree with that.

Where I disagree is with the normative judgment that these sorts of political behaviours are wrongful. The proponents of these conclusions—“gerrymanders as wrongs” and “monstrous”—don’t point to any particular democratic enactment making this behaviour a wrong. I never had an opportunity to vote on this issue or to vote for either: [a] any candidate (at least none come to mind) or [b] any national or state party promising to enact constitutional reform or regular legislation to stop such practices. On the other hand, this sort of behaviour has a rich history in our country—over vast spans of time. So maybe that is some argument that the people or country are not against it, or if they are, maybe it is not at the top of their list of priorities?

During my lifetime there have been several periods of time where the levers of the federal government and any number of states have been in the unified control of the Democrats. Did they run on platforms to forbid such practices and then implement such reforms? Answer: Nothing at the federal level, and inconsistent practice at the state level. The same is true for the Republicans. In such circumstances, complaining about legal conduct with a rich history, and doing so in hyperbolic and harsh terms, seems (to me at least) misplaced moral judgment. Captain Louis Renault: “I am shocked—shocked—to find that gambling is going on in here!”

Those people who are against these practices would (I think) be better off convincing the public that what the status quo allows is not best for the country and would seek support to implement such reforms. They could run for office, support candidates who and parties which would reform such practices, etc, etc—or they could just sit in judgment of...their neighbours, and people who have actually won elections and faced the voters, and others with whom they are having a vanilla political disagreement.

Some states have turned to purported non-partisan commissions. But the commission members are elected by the public or appointed by partisans—so whether you get better results by that method is hardly answerable as a matter of pure theory. One would have to look to practice—and then you’d still need a shared normative framework to determine if better results have been achieved. So at some point, even if you move to a commission, you might want to consult the people as to what the commission ought to do. Where has that happened?

If the [sincerely held] goal is to actually to convince the public toward institutional reform to end such practices [as opposed to intellectually sterile virtue signalling], you will need majorities, if not super-majorities. If you start that process by demonizing people who you are having a vanilla disagreement with, you are not likely to convince many (among those not already convinced). Such language—“cheating” and “monstrous”—will just lead to a pronounced Wilder/Bradley Effect (a/k/a Clinton/Trump Effect) (a/k/a Remain/Leave Brexit Effect). You won’t have political debate—you’ll have political silence. Those who disagree with you will not engage with you; they’ll lie to pollsters at election time, and then they’ll vote for Trump, and in the future, maybe Trump-squared. And I’ll add that among the many moderates who might be won over—they are liable to ask you...if this behaviour is so bad and deserves such hyperbolic characterizationsWhat have you done to stop it, other than engage in strong language on CONLAWPROF? And if they won’t ask that question, I will.

So go ahead, keep using language like “cheating” and “monstrous”, and keeping demonizing people with whom you disagree, and keep using hyperbolic language about normal politics without having first established a pedigree of personal conduct to stop such “wrongs”—and as you keep doing all that—you’ll get more ... Trump. But now I repeat myself.

Seth

Welcome Instapundit readers! 

Seth Barrett Tillman, Today on Conlawprof, New Reform Club (Dec. 11, 2018, 2:04 PM), <https://reformclub.blogspot.com/2018/12/today-on-conlawprof.html>. 

<https://twitter.com/SethBTillman/status/1072569602054520832>



10 comments:

bugscawfey said...

I once read an article saying redistricting to help your party is a reasonable outcome of winning the election at census time. Or as 44 said, "elections have consequences.” You're also right about citizen commissions, the last California redistricting was recently attacked as a stealth Democrat maneuver disguised as non-partisan. Maybe, and maybe CRP is the best description of the dead elephants.

Seth Barrett Tillman said...

What is CRP???

a bee ee? said...

California Republican Party.

Apart from that, it seems to me that whenever "nonpartisan" commissions are charged with drawing district lines, they always seem to do so in a manner favorable to Democrats. I agree with Unknown.

Tom Van Dyke said...

Democrats have a moral schizophrenia--an obsession with "fairness" but a self-dispensation for anyone who does whatever it takes to ensure it.

Since the world is unfair, things like gerrymandering are manifestly fair as long as they're done by those on the side of fairness.

gurugeorge said...

Surely there must be a mathematical formula that can tell you whether a given shape is becoming too ridiculous? I mean, districts should be roughly blobs, and you have some leeway for stretching and pulling, but maths should be able to set a limit for "too many bends in the boundary line" that can be agreed on by both sides, and any proposed district boundary can be checked against the mathematical formula.

GWB said...

All the geometry in the world won't solve the issue. It's a problem of people and community, not geography.

If we were all just identical widgets in a great big machine (a very progressive view), then a mathematical formula to start in a densely populated center and simply build out in an equal fashion would work.
But, people are different. And communities are different. A single homogeneous community won't really struggle with this issue. A larger heterogeneous one will. If you can draw your lines by community, then you get real representation. (Hint, a county is too large a scale of governance if your population is large enough.)

Which is why federalism - at all scales.

Colorado Dude said...

Colorado has had a supposedly nonpartisan reapportionment commission that first operated after the 1980 census. Did it solve gerrymandering? NOT.

The “swing” members of the board are selected by our Chief Justice. In FOUR separate reapportionment efforts, the outcomes massively favored the party of the governor who appointed the then sitting Chief Justice. I oughta know about the first one. I was part of the team drawing district lines in 1981. For the next five elections, Republicans won an outsized number of legislative seats, including 2/3 of the House and Senate.

Since then, Democrats have controlled the process with the help of members appointed by the Chief Justice. The election outcomes are dispositive. Regularly, Republican State House candidates collectively earned more votes than their Democratic opponents, but Democrats did much better than their vote totals would have suggested. In fact, as state legislatures nationally shifted Republican, Colorado was one of 4 states that, compared to the 1980s (before fancy computers made gerrymandering easy), moved to the Democratic camp. And our Supreme Court found “no foul” in these outcomes ... even praising the creating of one Congressional district because it pulled together counties, economically far from similar, that shared in an outbreak of pine bark beetles!

This election voters decided to give the Chief Justice even more power in who ended up on the reapportionment panel. We shall see if outcomes result in fewer goofy results.

Anonymous said...

We are only a step or two away from declaring all votes against the Democrats as illegal and immoral by the uncivilized and immoral.
"The constitution is designed to govern a civil and moral society, it is wholly inadequate for any other." The Progressive democrat, the socialist, the un American are the other.

Beldar said...

As its first witness, the defense calls the Hon. Martin Frost, Representative for Texas Congressional District 24 from 1979 to 2005, who designed the Democratic gerrymander that kept the Texas delegation to Congress majority-Democrat for more than a decade after Democrats won their last state-wide election.

Rich Rostrom said...

Gerrymandering is like porn. It can't be defined rigorously, yet everyone knows it when they see it.

Furthermore, a "fair" district map is going to have many geometric oddities, because fair borders would follow often-convoluted geographic elements such as river courses, or pre-existing political boundaries. (I.e. two Chicago suburbs are enclaves inside the city, along with part of unincorporated Cook County. Another pair of suburbs further out literally curl inside each other. here should the state legislative district boundary go?) There's no reliable way to distinguish such situations from gerrymandering.

Also, gerrymandering isn't always partisan. Racial gerrymandering is considered a requirement, resulting in highly convoluted districts to assemble enough minority voters for "majority-minority" districts. A more subtle form is when the "old guard" in both major parties join together to protect their own seats against intra-party troublemakers, who get hived out into safe other-party territory (or pushed together, so they have to fight each other).