Partisan Gerrymandering and the Constitution

On October 3, 2017, the United States Supreme Court will hear arguments in the case of Gill v. Whitford. This case raises the question of whether gross partisan gerrymandering by the Wisconsin state legislature in creating state voting districts violates any provision of the U.S. Constitution. Partisan gerrymandering – intentionally drawing voting district lines to favor one party or the other – has seen a sharp increase since the redistricting that followed the 2010 census. Many observers believe that partisan gerrymandering is to blame for much of the gridlock in Congress and the state legislatures because highly partisan districts elect highly partisan representatives who have no political room to compromise. The old legal wisdom is that for every wrong there is a remedy, so you would expect that this case would be a slam-dunk for those challenging the Wisconsin redistricting in the Supreme Court. But you would be wrong.

Appendix AFirst, some basics. The constitutions of each state determine the number of state Senators and Delegates assigned to voting districts and the apportionment of the state’s population into those districts. In West Virginia the House of Delegates is composed of a fixed 100 members, each theoretically representing 1/100 of the state’s population. But instead of there being 100 districts, our legislature has created 67 districts some of which elect multiple Delegates. (Appendix A). All Delegates face re-election every two years.

There are two Senators from each of seventeen senatorial districts for a total of thirty four. According to the West Virginia Constitution, senatorial districts “shall be compact, formed of contiguous territory, bounded by county lines, and, as nearly as possible, equal in population, to be ascertained by the census of the United States.” (Appendix B). There is no such language relating to House districts. Senate terms are four years and elections are staggered so that a portion of senators faces re-election every two years.

Appendix BState legislatures also draw each state’s Congressional district boundaries, which must be revisited every ten years immediately after the census. West Virginia has had three Congressional districts for several decades, but their boundaries have changed slightly over time to reflect the shift in population to the Eastern Panhandle and Monongalia County. The U.S. Constitution and its Amendments determine who can vote in federal elections. But as for how districts are constituted, it merely says that “Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective numbers” and that “the number of Representatives shall not exceed one for every thirty Thousand.”

The basic requirement of Congressional apportionment that each district have an approximately equal population is consistent with the 5th Amendment’s promise of equal protection of the law. For example, if District A has a population of 750,000 and District B has a population of 800,000, then voters in B have an incrementally less powerful vote. That same principle was made applicable to the states by the 14th Amendment, ratified after the Civil War. In a series of cases in the 1960s, the Supreme Court announced that “equal protection” in the context of state legislative district apportionment meant “one person, one vote.” For example, in Reynolds v. Sims (1964), the Court said:

To the extent that a citizen’s right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. . . . By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean that the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.

But if all equal protection requires is districts of equal population, there is still an infinite number of ways to divide a state’s population into roughly equal segments. The development of software that predicts the likely election consequences of moving even small groups of voters from one district to another has tempted legislatures to find just those configurations that maximize the likely future success of the party in power, while still satisfying the equal population requirement. The Republican legislators in Wisconsin sorted through multiple proposed district maps with the use of redistricting software and the help of political science experts until they found the one they believed would best ensure their control of the legislature for an entire decade even if they were to lose the popular state-wide vote.

The challengers to this plan in Wisconsin were numerous individuals and groups acting on behalf of Democrat voters in the state. There is a subtle but significant difference between protecting an individual voter from the dilution of her vote and protecting a subset of the whole voting population – registered Democrats – from being deprived of a proportionately equal chance to elect Democrat candidates. This difference raises the question of whether the Equal Protection Clause even applies to state-wide voter groups? If it does, are all such groups entitled to equal protection? If Democrats and Republicans as distinct voter groups are entitled to equal protection, how about the Green Party or the American Nazi Party? This is one thing that makes the issues raised in the Wisconsin case so difficult for courts to get their minds around.

There is even a more fundamental legal question the Court must answer before deciding whether the Equal Protection Clause prevents partisan gerrymandering. That question is “justiciability” – whether a clear rule can be found delineating what is acceptable from unacceptable in the drawing of district boundaries and whether courts should step into the political arena at all in view of the separation of powers. In my next post, I will explain why partisan gerrymandering greatly intensified after the Supreme Court’s last pronouncement on these issues in 2010, and where the law now stands on the issues presented in the Wisconsin case.

 

Jeff Flake’s Conservative Conscience

Jeff Flake is the junior United States Senator from Arizona. He graduated from Brigham Young University with a degree in International Relations and spent time as a missionary in South Africa. Later he served as the Executive Director of the Goldwater Institute, a conservative think tank, and was elected to the House of Representatives six times beginning in 2000 before his run for the Senate. Flake is very conservative, believing that government’s involvement in the lives of individual citizens should be minimized and that strangling tax revenues and spending is the best way to ensure this. He is pro-life, opposed to gun control and voted against disaster relief spending for victims of Hurricanes Katrina and Sandy. So one would not expect Jeff Flake to be openly critical of a Republican President whose election in 2016 made this conservative nirvana more likely. But Jeff Flake is a man of principle and he has unloaded on Donald Trump.

Flake’s opposition to Trump began during the 2016 Presidential campaign. Although he does not acknowledge a vote for Hilary Clinton, Flake openly admits he did not vote for Trump. He then opposed Trump’s travel ban, declaring that it was unacceptable when even lawful permanent residents could be stopped at the border.

Flake is up for reelection in 2018, so he has recognized that his maverick positions require some explaining. He has attempted to do this in a book recently published entitled Conscience of a Conservative, a title he borrowed from Barry Goldwater’s famous manifesto.

Flake’s opening salvo in the book is a description of the “madman” strategy employed by Richard Nixon to make Ho Chi Minh believe that we might actually drop a nuclear bomb on North Vietnam. In a breathtaking observation about Trump, Flake says “there is a significant difference between appearing to have problems with impulse control and actually having impulse-control problems.” Flake does not let up from there.

Perhaps most destructive of all, we haven’t ever had an occupant of the White House who so routinely calls true reports that irk him “fake news” while giving his seal of approval to fake reports that happen to support his position. This is tremendously damaging . . . Only in anti-democratic propaganda states do we see “alternative facts” successfully compete with the truth for primacy.

Flake not only takes aim at Trump, he is also critical of the partisan gridlock in Congress and the behavior of his own party. He says that the “impulse to dehumanize, to ascribe the worst possible motives to people who in normal times would be regarded not as ‘the enemy’ but merely as political opponents, is a signal that something is terribly wrong.” This applies, of course, not only to Republicans but to all of us these days. In a chapter entitled “Country Before Party” he speculates that Lincoln, Teddy Roosevelt and Ronald Reagan might not be welcome in the Republican Party of today because they were pragmatic and willing to compromise to achieve important national goals. In a particularly powerful passage he argues that

populist resentments may feel good in the moment, but indulging them is destructive, and self-destructive, and offers no solutions to the very real problems that gave rise to the resentments in the first place. Manipulating populist resentments is the oldest trick in the book, and it is shameful. When we allow ourselves to prioritize winning at all costs over what is best for our country . . . then we have chosen our political interests over the public interest and in so doing we inflict great harm on the country.

This is certainly refreshing and welcome. But it will not endear Flake to the harder right elements in his own Party. He now has a challenger in the upcoming Arizona Republican primary, who called his refusal to support Trump “treacherous” and describes Flake’s policies as “America Last.” Trump won in Arizona over Clinton by only 49% to 45% — a far smaller margin than in West Virginia and the narrowest win for a Republican since 1996. So Flake will have both a vigorous Democratic opponent and his hard right challenger to consider. On top of this, his popularity rating in Arizona last fall was only 35%. All this has led The Atlantic magazine to wonder whether Jeff Flake is “too nice” for the Senate, noting that he sometimes seems as if “he has just crash-landed here in a time machine from some bygone era of seersucker suits and polite disagreements.”

It is hard for a progressive to wish a man like Flake political success. His views on most things are somewhat extreme, as befits his libertarian outlook. But on closer inspection he can’t be so easily dismissed. Indeed, he may be an example of a middle course like the one Joe Manchin has attempted to take. For example, Flake is a globalist, believing that we all prosper through international trade agreements and calling for a renegotiation of NAFTA instead of a complete rejection of the treaty. He also flatly rejects Trump’s populist anti-immigrant stance and supported an end to the Cuban Trade Embargo.

Whatever can be said about Jeff Flake’s political views, it is plain he is driven by principle. It is hard to say the same about Joe Manchin. The best that can be said about Manchin’s behavior in the Senate is that he consistently votes in a way he thinks will help West Virginians. But his judgments on this are sometimes debatable, such as with his unflagging support for the coal industry. On matters affecting the nation more than the state, Manchin’s only “principle” is political survival. One can’t help wish for a West Virginia Senator who is willing openly to stand for country over party, for respect of the opponent even during disagreement, and for basic decency despite the political risk. Maybe this is the true middle course that, in the end, will be rewarded by voters.

 

The Old Bait And Switch

West Virginia voters have just been made the victims of a fraud — we were sold one thing by Jim Justice and he has now delivered another. It did not take him long to reveal the fraud, suggesting that it was intended from the beginning.  In Huntington with Donald Trump on August 3, 2017, Justice announced that he was switching parties from Democrat to Republican. Recall that this is a man who switched party affiliations from Republican to Democrat in February 2015 so he could run for Governor on the Democrat ticket. He was elected in November 2016, a mere nine months before switching back to Republican again. In front of a cheering crowd who had booed him just moments before, Justice explained that “I just can’t help you anymore being a Democrat governor.” This bait and switch had far less to do with Justice’s desire to be an effective governor than with his lack of character.

It’s easy to dispose of Justice’s claim that being a Democrat governor limited his effectiveness during the recent budget fiasco. When his proposed budgets were first introduced to the Legislature they involved generating new revenues and preserving the spending necessary to retain the state’s social fabric. He got wide support for this from the Democrats but little support from the Republicans. As the debate wore on, however, Justice abandoned the progressive aspects of his budget and began caucusing with the far-right Senate Republicans in their effort to cut income taxes.

These income tax cuts were not only opposed by Democrats, but also by House Republicans. Since Republicans control the House of Delegates, it was Justice’s inability to deal with them that ultimately frustrated him. But actually being a registered Republican would not have improved his effectiveness.  He had already taken up with the right fringe in the Senate and begun to act like a Republican. Instead it was his poor policy choices, frequent course reversals and shallowness that caused his ineffectiveness. He has poor political instincts and is simply not a leader.

There is no question, however, that Justice’s switch of party affiliation has damaged the already lame Democrat party. That party has been able to elect only one Democrat out of five Congressional representatives and now all in the state’s elected leadership are Republican. Sen. Joe Manchin, who is reputed to have recruited Justice to switch parties to Democrat and run for governor, looks like a fool. So does current State Democrat Party Chair Belinda Biafore, who claims that Justice duped her, not to mention former Democrat Party Chair Nick Casey, who is Justice’s Chief of Staff. Calls for a shake-up of Democrat party leadership have already begun. Former West Virginia Senate President Jeff Kessler, a respected Democrat who lost to Justice in the 2016 primary, said “It’s time for a change at the top . . . They need some new leadership at the Democrat chair.”

Nobody looks good in this. The Republicans have their own problems welcoming back to their party a governor they were happy to lampoon just days ago. The Republican Governor’s Association said in November 2015 that Justice was “a selfish businessman who consistently put his interests before anyone else’s, especially taxpayers.” The West Virginia Republican Party said in July 2017 that “Jim Justice embarrasses our state every single day.” These statements were catalogued by the Democratic Governor’s Association, who are now firing their own invective at Justice when formerly they embraced him. The hypocrisy on both sides of this sad event makes you want to take a shower.

Not all politicians lack character.  One thinks immediately of Sen. John McCain on the Republican side and former President Obama on the Democrat side. But if character is the trait of steadfastness to principle when the going gets tough, Jim Justice has failed us miserably. It is hard even to see what he hopes to gain from this switch of party affiliations. Perhaps he expects larger campaign contributions from Republicans than he raked in from the Democrats whom he deceived in 2016. Maybe he wants to bask in the Mar-A-Lago sun. One thing is certain, though. The question of what he has to gain is the right question to ask.

Trump’s Advisory Commission on Election Integrity

One thing that rankles President Donald Trump is that he was not the most popular candidate in the 2016 Presidential election. In fact, he lost the popular vote to Hilary Clinton by approximately 3,000,000 votes, 2.1% of the total votes cast for President. Trump’s explanation is that Clinton’s vote total was the result of widespread voter fraud. In a tweet on November 27, 2016, Trump asserted “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.” Although he has produced no evidence of fraudulent voting, Trump has continued to make this claim and threatened an investigation. The truth is that voter fraud is exceedingly rare.

On May 11, 2017, the President issued Executive Order 13799, which created the Presidential Advisory Commission on Election Integrity. The ostensible purpose of this Commission is to study the registration and voting processes used in Federal elections. Vice President Pence chairs the Commission and has appointed as Vice Chair Kansas Secretary of State Kris Kobach. An early supporter of President Trump, Kobach has been a key architect of anti-immigrant policies and voter suppression rules around the country. In one of his first Commission duties, Kobach issued a letter to all state Secretaries of State requesting the production of sensitive voter registration and voting history information.

The letter requested only publicly available information and suggested that the responsive information could be submitted electronically. Here is the specific information requested:

The publicly available voter roll data for [your state], including, if publicly available under the laws of your state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.

As of this writing 44 states have declined to provide some or all the information requested, often because some of it is deemed unavailable to the public or is not collected by the state. But some states such as California and Virginia refuse to cooperate in any way. West Virginia Secretary of State Mac Warner has not yet responded.

It may be unnecessary for West Virginia to decide how to respond. On July 3, 2017, the Electronic Privacy Information Center (EPIC) filed an Emergency Motion for Temporary Restraining Order in U.S. District Court in the District of Columbia alleging that the Commission had begun collecting and aggregating sensitive personal information of voters without any procedures in place to protect voter privacy or the security of the state voter data. In particular, EPIC alleged that the Commission failed to comply with the Privacy Impact Assessment requirements of the federal E-Government Act of 2002. A hearing on the motion will be held on Friday, July 7.

Assuming that collection of state voter information is not enjoined, what response can we expect from the West Virginia Secretary of State? State law already permits the Secretary of State to sell state voter lists and data files containing some of the information the Commission has requested. WV Code 3-2-30. However, this information may not contain the voter’s telephone number, email address, Social Security number or driver’s license number. In addition, no lists or voter data files may be used for commercial or charitable solicitations, sold or reproduced for resale. The Secretary of State is authorized to share data files across state lines with state or local election officials, but there is no express authority to share data with federal officials.

The Commission’s request for voter data is troubling for a number of reasons. The data will reside in the White House with no legal restriction on how it can be used. It is not clear how the Commission will use it in the first place, because each state collects and stores its information in unique ways making state to state comparisons difficult. There is no structure for ensuring that the information, aggregated for the first time on a national basis, would be secure from hackers. And as the plaintiffs in the EPIC lawsuit argued,

It does not matter that a particular state might disclose its voter data to some other requester under some other circumstances: this requester — the Commission — is barred by law from gathering this data without sufficient constitutional and statutory privacy safeguards.

The safest thing for Secretary of State Warner to do is to respond with questions of his own about how the information will be used and how it will be safeguarded. The Commission has no subpoena power, and Warner should not rush to comply with some artificial deadline before he is certain that our voter information will be safe and properly used. Second, he should not disclose the last four digits of a West Virginia voter’s Social Security number under any circumstances. That is prohibited by state law. Third, if he decides to provide the information he should sell it to the Commission on the same terms as he would sell it to research groups and political parties. State law does not authorize him to release the data for free to anyone. And no doubt there are provisions in the form contract of sale used by the Secretary of State’s office when this type of data is sold that bind the purchaser not to use the data for commercial purposes.

But here is an even better strategy. Responding to requests for voter information from federal officials is not among the statutorily enumerated powers of the Secretary of State. WV Code 3-1A-6. This suggests that the decision whether to provide the information belongs to the Governor, who holds the state’s executive power. Governor Justice should simply direct Warner to decline the request to provide voter information, or respond in that fashion himself. Virginia Governor Terry McAuliffe took this approach, saying “I have no intention of honoring this request. Virginia conducts fair, honest, and democratic elections, and there is no evidence of significant voter fraud in Virginia. . . At best this commission was set up as a pretext to validate Donald Trump’s alternative election facts, and at worst is a tool to commit large-scale voter suppression.”

Those Who Work, Those Who Don’t

After the 2016 election results we are struggling to understand what hit us. One common view is that Democrats have become tone deaf to the working class, advancing policies that cater to other key constituencies of the party but failing to do much about bettering the economic lives of those in the middle and lower middle. Why, we ask, did Wisconsin, Michigan and Pennsylvania forsake Hillary Clinton in favor of a bombastic outsider who made huge promises, but apparently hasn’t a clue how to govern to deliver on them?

Several thoughtful books can help us find the answer. The best of these is Those Who Work, Those Who Don’t, a sociological study written by Jennifer Sherman in 2009. Sherman sought out a small town in rural America where industry and jobs had been decimated and widespread poverty made the normal social pecking order collapse. This should sound familiar in West Virginia. She wanted to learn what factors provided status and capital in a community where economic distinctions were no longer possible. What she learned is an eye-opener.

Sherman’s town is located in the rural Northern California forest area. She gave it the fictitious name Golden Valley. Golden Valley’s economy was wrecked by the environmental decision to protect the spotted owl at the expense of local industry. All logging activity and most sawmilling in the area ceased and many layoffs occurred. Golden Valley residents viewed this economic devastation as the handiwork of bi-coastal liberals who cared nothing about working class people. But they also recognized that Rebublicans cater to big corporate interests and were not concerned about their plight either.

In Golden Valley nearly everyone was poor. In the absence of economic wealth and distinctions, moral capital was the source of self-esteem and community standing. Those who had moral capital were often able to exchange it for economic capital in the form of job opportunities and assistance from other community members in time of need.

There were two main sources of moral capital. The first was connection to work. Work ethics were highly valued. Those who had a steady full time job were at the top of the hierarchy, followed by those with part time jobs, those on unemployment compensation, and those with a work-related disability. Receiving state or federal benefits because of unemployment or disability was not a negative because these benefits had a connection to past work. Even those who worked to support their families by hunting, cutting wood for fuel or gardening had moral capital from these activities.

Those who did not work, but instead received government welfare assistance, had negative moral capital and lost standing in the community. This effect was felt powerfully by those in that category. Many drove forty miles to the nearest town to use food stamps for fear that they would be recognized by their neighbors. At the bottom were those who were addicted to drugs or abused alcohol, and those who survived through illegal activity. These people were shunned as having no work ethic and were effectively shut out of job opportunities.

The second source of moral capital was “family values.” A person high on the family values scale was usually in a stable marriage, and was a parent or foster parent. But as in most poor communities the traditional family didn’t exist. Children were often raised by grandparents, distant relatives or complete strangers. An individual or couple could gain moral capital if they provided a safe home for any child in the community who needed one. Parents in Golden Valley did not behave as middle class parents frequently do by planning for and becoming involved in the child’s future. Instead parents gained self-esteem and community standing merely by sheltering children in an environment free from abuse that allowed them to develop in their own manner and direction.

What can those interested in regaining the votes of working class people learn from all this?

  • Working class people value hard work, so policies that are designed to provide jobs will be supported by working class voters;
  • working class people are not lazy, do not want public assistance, and will mostly avoid using even well-intentioned benefits that do not somehow recognize recipients as having been connected to the working economy;
  • working class people believe that their moral values of hard work and family are the true American values. Republican rhetoric about morality and values resonates with them;
  • guns, particularly those associated with hunting and providing food, are a strong tradition in rural America and are sometimes essential for family survival; and
  • working class people will reward politicians and political parties that speak to them in a sympathetic, understanding manner and couple this with policies that attempt to deal with the hardships in their lives.

Working class people do not vote against their “interests” when they vote for the Republican agenda, even if that agenda worsens their economic plight. In fact, it is condescending to suggest this. Instead they vote in line with their values. It’s just that Republicans have been more successful addressing those values. But there is nothing inevitable about working class support for the Republican agenda. A progressive agenda that seeks to level the economic playing field through tax reform and job creation can reverse this trend.