As the Supreme Court prepares to hear oral arguments in our case aiming to establish constitutional limits on partisan gerrymandering, I got to thinking about how best to explain to non-lawyer friends how evil the practice of gerrymandering is. Being a baseball fan, I immediately thought of baseball as a good illustration of how one could rig the game in much the same way our current political system is rigged by political gerrymandering.
Let’s hypothesize changing the rules of baseball in a very strange and dramatic way so as to eliminate any semblance of fair play and competition. Assume last year’s World Series champion (the Cubs) got to choose, as a result of their victory, who their players would be for next year and they could choose players from any other team. The Cubs could scour every conceivable statistic on each and every player and using that sophisticated database, they could pick the one or two best players at each position and the best pitchers from across the leagues and pack their team with the best players.
We could also change the rules to give the Cubs the power to manipulate the rosters of the other teams by making sure that any remaining star players are not grouped on any one team. In other words, they could crack remaining stars among other teams so that their team could always win and other teams could almost never defeat them (even if the Cubs had a bad game). The other teams’ rosters would be filled with average players. But what if some of those average players started performing at star level? We could give the Cubs the power to remove high-performing players from the team they played on to guarantee that the other team didn’t start to approach the same winning level as the Cubs.
If we changed the rules in this bizarre way, what would be the intent and effect of the Cubs team? The intent of the Cubs would surely be to entrench themselves in power and harm other teams. The effect would surely guarantee that they stay in power year after year. And there would be no other legitimate factor, like player injuries on other teams, smart trading strategy, or excellent coaching, that could explain the resulting extreme baseball domination by the Cubs--except team advantage.
This hypothetical surely seems weird to any baseball or sports fan. But as bizarre and unfair as it is, very similar rules exist in our current political system that permit (for now) extreme partisan gerrymandering.
Those who engage in gerrymandering amass large databases with tons of statistics on how every voter votes, when they vote, and how they vote. The data are so complete that they even contain what magazines or newspapers they read and where they shop. Using these data, politicians doing the gerrymandering (both Republicans and Democrats) examine the current districts to see which officeholders (players) need help in performing better in future elections (games) in order to ensure a team victory. Using these incredibly detailed statistics with high-powered computers, map drawers identify voters who support their party and candidates, and those who don’t. They then move those voters into and out of districts to ensure that certain pre-selected candidates win and certain pre-selected voters lose.
Politicians then rearrange the voters in the districts in ways much like the Cubs did in the hypothetical to guarantee they win election after election (game after game) throughout the decade. If they find a group of voters who vote for the opposing party, they can crack them among several districts so they don’t have the power to win. Additionally, since the gerrymandering party can afford to create a few districts that are chock full of voters of the other party, they can pack them into those districts to ensure those voters have no influence elsewhere in the state.
It gets worse… Looking at their own candidates, gerrymandering parties draw lines that put ‘bad’ voters (those who vote against the officeholder or her party) into another district, and redraw the lines to include ‘good’ voters (those shown by the database to vote for them). Giving a struggling candidate a boost in this way essentially gives electoral steroids to their weakest candidates who need shoring up. Baseball has banned steroids; but electoral steroids are still commonly used by map drawers to ensure that a voting trend against one candidate in a district can be reversed by manipulating district lines, drawing out ‘bad’ voters, while drawing ‘good’ ones into the target district.
Map drawers can even help officeholders or prospective candidates in other perverse ways. For example, if a candidate or officeholder is at risk of possibly losing the next election (game) because there’s a well-funded or popular challenger (player) living in that district, they can use the data showing the residence of the challenger and move the district line so that the popular challenger will be in a different district (team). Or they can move the district lines around groups of voters (even in the middle of the decade (season) to shore up their candidates (team). All done in the interest of burdening one group of voters and advantaging another, based purely on the political party they belong to and the values they hold as voters.
Manipulating the districts in this way through gerrymandering allows a political party to rig the elections (games) such that even when the other party wins most of the votes statewide, they remain a political minority. Imagine if the team that scored the most runs in a baseball game was nevertheless declared the loser? No fans would attend baseball games anymore because the system would rightfully be deemed rotten and corrupt. This may explain one reason why many voters stay home rather than vote. They know ‘the fix is in’ as a result of gerrymandering.
The U.S. Supreme Court has an opportunity this term in CLC’s Wisconsin partisan gerrymandering case (Gill v. Whitford) to rein in the pernicious practice of elected officials cherry picking their voters and silencing the voices of voters in the other party. Our democracy desperately needs the Court to rise to the challenge.