Following is an informal “Friend of the Court” brief I mailed to each individual Supreme Court Justice regarding the gerrymandering case from Wisconsin. The Court will hear oral arguments in that case on October 3rd.
The Court has probably gotten hundreds of friend of the court briefs from high profile stake holders through the formal process. I am trying to go around that process where I know I would never even be heard.
To that end I have mailed the following letter directly to each Justice. My hope is that some law clerk working for one or more individual Justices will read my letter, say this is just from an American citizen, and decide that my arguments are worth calling to the attention of his/her boss.
I know this effort is a long shot, but at least I will have tried to do something to change the status quo!
September 8, 2017
The Chief Justice of the United States
One First Street N.E.
Washington, D.C. 20543
Reference: Gill v. Whitford
Argument: October 3, 2017
Dear Chief Justice:
This correspondence is intended to be an informal and honest “friend of the Court” brief. I am neither an attorney nor a lobbyist. I do not represent any corporate, business, or other organized entity’s interests. I am an American citizen expressing my concern about the direction our country is going in this age of big money, big data, and precision gerrymandering in our political system.
My concern regarding the Wisconsin case is the broader implication for our national interests that case and others like it represent. I believe political gerrymandering is a core threat to the very foundation of our liberal democracy. I wonder how long we can survive as a free people if we allow political party apparatus to thwart the will of America’s citizens. I am concerned for the long term viability of our democracy if political gerrymandering continues in its current sophistication.
In a large majority of states the legislative district maps are gerrymandered each 10 years during the redistricting cycle for the advantage of the then-current political party in power. The politicians serving in those gerrymandered state districts subsequently gerrymander their state’s Congressional Districts for the same political party’s advantage. The result is two layers of manipulation that obscure, if not totally subvert, the real preference of the majority of voters in their Congressional representation.
I am aware that the Court has wrestled with the issue of political gerrymandering for decades. I know the Court found political gerrymandering to be justiciable under the Equal Protection Clause in Davis v. Bandemer, provided that both discriminatory intent and effect could be demonstrated. But then later the Court found it non-justiciable in Vieth v. Jubelirer because no judicially discernible and manageable standards for adjudicating such claims could be found.
Now more than a decade after Vieth, the political landscape is fundamentally different. The political parties can acquire detailed personal information about every potential voter. With unrestricted contributions from PACs combined with the ubiquity of the internet and social media messaging, I believe the parties have demonstrated their ability to subvert the will of American voters. I submit that both discriminatory intent and effect can easily be discerned by reviewing the election results in most states since the 2011 redistricting.
With virtually unlimited money and vast databases, the major political party in control of redistricting in a state can draw the district maps so precisely through “packing and cracking” that they can guarantee a disproportionate majority of seats in the state legislature as well as the Congressional Districts of that state.
The outcome in any given state or Congressional election is generally well known before the first vote is cast. That renders a large majority of Congressional District seats “safe” for the incumbent party. Primary elections are generally the only competition an incumbent Representative faces. In that scenario incumbents and challengers must stake out ever more extreme ideological positions on most issues in their district primaries to distinguish themselves from each other. Representatives elected in that process do not necessarily feel the need to fairly represent more moderate views of many or most of their constituents.
Given the reality that re-election is the first priority of most politicians, the Representatives successfully elected in a gerrymandered system arrive in Washington with a strong incentive not to compromise on anything regardless of what is best for the country, or even their own state as a whole. I don’t think the Founding Fathers could have imagined the subversive power political parties would have today when they drafted the Constitution.
The end result of political gerrymandering is that very few (usually substantially less than 10%) of the 435 seats in the House of Representatives in any given election are actually seriously competitive between the parties. There is virtually no moderate center right or left anymore to conduct the people’s business. I believe the lack of moderation does not represent the wishes of the majority of Americans.
My state of Ohio is a near perfect example of the power of political gerrymandering to subvert the will of its citizens. Voter preference in recent elections in Ohio is split roughly 48% Democrat and 52% Republican. Yet the party in legislative control at the last redistricting (Republicans) was able to draw the maps such that the Ohio Senate has 24 Republicans and 9 Democrats; the Ohio House has 65 Republicans and 34 Democrats. The same manipulation is clear, though worse, in Ohio’s Congressional districts where the maps were gerrymandered so that the Republicans hold 12 seats and the Democrats hold 4. That 12 to 4 political party split was planned and predicted by the Republican controlled legislature during the 2011 redistricting process. They did their manipulative job so well that their predictions were born out precisely in the 2012 election. And also as predicted, no Ohio Congressional District has changed party affiliation in the three elections since the 2011 redistricting plan was officially approved.
The Wisconsin case the Court is considering in Gill v. Whitford is not unique. Nor is the Ohio example I site. The same effect is true to a large degree in at least 30 other states. That is what makes it so insidious. The most extreme political elements in our society are gradually taking over governance of our nation.
Some argue that the Framers built adequate protections against the effects of gerrymandering into the Constitution by granting Congress the authority to “make or alter” state Congressional District boundaries. I disagree. The House of Representatives has never exercised that authority and is not likely to in the future. Congress is made up of Representatives from gerrymandered districts. The members have a vested interest in not challenging state Congressional District boundaries. In most cases interfering in the gerrymandering decisions of one or more states may well put their own “safe seats” in jeopardy.
Others argue that elections themselves take care of the gerrymandering problem. They claim that if voters don’t like their Representative they will simply vote him/her out. I disagree with that premise as well. A district’s party affiliation very rarely changes after the district boundaries are drawn. Voter preference studies by economists Ethan Kaplan and Sharun Mukand show that most Americans tend to identify with one party or the other for generations. Even Independents lean toward one ideology or the other, and show little inclination to change political party support from election to election. When the districts are gerrymandered in favor of one party, that party generally stays in power in that district almost without regard to the incumbent’s performance. After all, if he/she is too moderate or cooperative with the other party there is always a primary election challenger who will take a harder ideological position.
Further, in recent years the manipulative power of money and voter data has nearly eliminated the moderate political center which is so critical to a healthy democracy. It has given way to the most extreme political ideologies. Even when the voters reject the party in power the shift is to the opposite extreme. It does not appear to ever move toward that moderate center right or left where most Americans are.
The American people and our democratic government face some daunting strategic challenges that require Congressional attention in the coming decade: national healthcare crisis; long term viability of Social Security and Medicare; looming national debt; crumbling national infrastructure; economic planning for an aging population; social, educational, and economic impact of automation, international trade, and conversion to a service economy; the proper role of the US in international institutions and other world affairs; global climate change and other environmental crises. All these issues require rational discussion, debate, and compromise among Congressional Representatives to reach workable solutions. Without eliminating political gerrymandering in Congressional Districts nationwide I fear our democracy cannot address them before it is too late.
Some citizens’ groups have offered viable redistricting processes that would prevent or substantially limit abuse. Arizona is an example where the Court has upheld the legislative rights of citizens to control the redistricting process. I am including another such proposal advanced by Common Cause and the League of Women Voters in Ohio for the Court’s review and consideration in its deliberations. However, the gerrymandered state legislatures have been the strongest opponents of these citizens’ initiatives in most states. Expecting those grassroots citizens’ efforts to be the solution without intervention and support from the Supreme Court is asking too much.
I understand the Court’s reluctance to try to define standards for determining what is unconstitutional gerrymandering. However, I don’t think the Court even needs to establish such standards to bring more rational redistricting. I suggest that the Court:
1.) affirm the legislative rights of citizens nationwide to submit anti-gerrymandering redistricting plans directly to the voters for ballot consideration in their respective states;
2.) specify that state legislatures must not oppose, obstruct, or otherwise interfere with such citizens’ rights;
3.) require states to provide the necessary voter registration data and software systems used by the legislatures themselves to recognized statewide citizens’ groups for their use in establishing anti-gerrymandered Congressional Districts.
I accept that this proposal is not likely a perfect solution, but I believe it would render a substantially fairer representation of the electorate’s preferences than the current system.
I submit that it is incumbent upon the Supreme Court, as the most politically unbiased branch of our national government, to strike down the institutional injustice of political gerrymandering. For the preservation, security, and health of our democracy, I think the Court must limit state legislatures’ authority to draw irrational district boundaries for political advantage of the party in power at the time of redistricting.
Therefore, I ask the Court to re-emphasize and strengthen the constitutional rights of our citizens not to have their voting rights abridged by political manipulation. I am requesting that the Court reject the use of political gerrymandering, nationwide, in the broadest possible terms. That practice serves no useful purpose in any liberal democracy. I implore the Court to restore the authority and will of the people above the manipulative power of money and data to subvert our electoral system.
340 W. Goodale Street
Columbus, Ohio, 43215
Phone: 864 378 4811
Attachment: Proposed Ohio Constitutional Amendment to eliminate political gerrymandering of Ohio Congressional Districts