Читать книгу Gerrymandering - Stephen K. Medvic - Страница 8

It is commonplace to hear that democratic elections must be “free and fair.” But what, exactly, does that mean? Drawing on Robert Dahl’s classic work, Jørgen Elklit and Palle Svensson argue that elections must avoid coercion if they are to be free.¹⁷ Voters must be allowed to fully participate in the process, meaning their rights to assemble peaceably, speak freely, and associate expressively, among others, must be protected. Free elections, according to Elklit and Svensson, entail “the right and the opportunity to choose one thing over another.”¹⁸

Whereas free elections must avoid coercion, fair elections must ensure impartiality. Fairness “involves both regularity (the unbiased application of rules) and reasonableness (the not-too-unequal distribution of relevant resources among competitors).”¹⁹ That is, election rules must apply equally to everyone, and all political parties and candidates must have roughly equal access to resources that are necessary to be competitive. Equality, then, is a vital aspect of electoral fairness. It is the basis, for instance, of the “one person, one vote” standard.

Free elections occur almost automatically in free countries. It’s nearly impossible to imagine a country with protections for free speech or a free media somehow curtailing those freedoms in the electoral arena. Fairness, on the other hand, requires the conscious development and application of impartial electoral rules. A country may be judged to be fair, in general, according to any number of standards and still have election laws that fail to ensure electoral fairness.

We might think of electoral fairness, following the political theorist Dennis Thompson, as “electoral justice.” Electoral justice, in turn, “is a species of procedural justice. It seeks fair terms of cooperation, a set of practices that all citizens could accept as an equitable basis for making collective decisions.”²⁰ Importantly, Thompson argues that we must judge electoral processes independently of the outcome of any given election (or set of elections). In other words, we can’t decide that an electoral rule is fair or just simply because we’re happy with the result of an election. We have to assess electoral rules and procedures in and of themselves. For Thompson, electoral rules “are just to the extent that they realize principles that could be freely adopted under conditions of equal power. In the case of electoral justice, the principles express the values of equal respect, free choice, and popular sovereignty.”²¹

Thompson readily acknowledges that people will interpret these principles differently. What sorts of (and how many) alternatives must voters be given if their choices are to be free? How equal must voters, or candidates, be in order to achieve an equal level of respect and what is required to ensure such equality? Must the electoral system always enable the majority to win if “the people” are to rule? Of course, the problem is not only that it isn’t obvious what kinds of procedural arrangements are necessary to achieve equality, liberty, and popular sovereignty. It’s that these principles can sometimes come into conflict with one another. The freedom of a billionaire to spend as much as they’d like supporting the party or candidate of their choice conflicts with the ability of citizens to have equal voice in the process or of candidates to have roughly equal resources for contesting an election.

It is unlikely, therefore, that debates over electoral rules and procedures – including redistricting and gerrymandering – will take the form of a democratic side versus an undemocratic side. Instead, the debate is over competing visions of democracy. Thus, the most productive way to frame the debate over gerrymandering is as follows: One side believes redistricting should be considered part of the regular legislative or, more generally, political process, while the other side believes that redistricting should be thought of as a periodic adjustment to the foundational rules of the political system. The former will necessarily be ‘political’ and partisan; the latter aims to be apolitical and non-partisan.

As it happens, most of those who embrace the political/partisan perspective, or what I’ll call the “realpolitik redistricting” argument, are political practitioners such as campaign consultants and party operatives. There are some scholars in this camp but most of its adherents work in the realm of practical politics. The other side of the debate, which we might call the “civic redistricting” argument, consists mostly of legal scholars, political scientists, and reform activists. Thus, in a given sphere – “real world” politics or academia – the debate may be lop-sided. Taken as a whole, however, there are as many advocates of one perspective as there are of the other. These advocates simply come from different worlds and are, undoubtedly, influenced by their experiences in those different domains.

The realpolitik redistricting argument rests on the assumption that no process involving political actors can be apolitical, nor can the product of such a process be neutral. Even if some such processes could be apolitical, redistricting is not likely to be one of them. As the political scientist Justin Buchler explains, given the winner-take-all nature of legislative districts in the United States, the procedures for drawing district boundaries will inevitably determine winners and losers, broadly defined, in those districts. Indeed, according to Buchler, choices about redistricting rules are “indistinguishable from the question of who should win and who should lose.”²² This holds both for the choice of actors responsible for redistricting and for the specific decision-making rules those actors choose to utilize to draw maps. “Thus,” writes Buchler, “there can be no apolitical redistricting in any meaningful sense of the term because the choice of delegation is as ‘political’ as the choice of algorithm.”²³

In partisan and bi-partisan (or incumbent protection) gerrymanders, it is easier to see how the process picks winners and losers. However, even if district lines are drawn to enhance competition between the parties (an approach Buchler calls a “competitive gerrymander”²⁴), winners and losers are being determined. If competitive districts make it more likely that a centrist candidate will win, then centrist voters are the winners, and non-centrists are losers. If, given voter and candidate polarization, a non-centrist is sure to win, then non-centrists on the winning candidate’s side of the spectrum are the winners and centrists and non-centrists on the other side of the spectrum are the losers.²⁵

Critical to the realpolitik argument is the claim that voters aren’t powerless in the process. They know that redistricting takes place in the year following the census and they can vote for candidates who will draw lines the way they’d prefer them to be drawn. As the political commentator Kevin Williamson puts it,

If Democrats are unhappy with Republican domination of the state legislatures and governorships – and they should be unhappy – then they have a much more direct option [than going to court]: They can go into the states and ask people for their votes in legislative races and in gubernatorial elections. If they find that route difficult, then maybe the Democrats should be rethinking what they’re trying to sell people.²⁶

According to this view, when the voters put one party in charge of the entire post-census legislative process, they are likely to be satisfied with the legislative maps that party draws. (If, on the other hand, voters produce divided government – that is, control of at least one chamber in the state legislature is in the hands of one party while the governor is a member of the other party – then they apparently prefer compromise in the redistricting process.)

In fact, the realpolitik perspective maintains that it is undemocratic to take redistricting out of the democratic process. “Redistricting is not politicized. It is political,” writes Williamson. “For the Democrats and the Supreme Court to try to step in and take away from the state legislatures their longstanding right to draw up legislative districts as they see fit is much more deeply undemocratic than anything Republican gerrymanderers ever dreamt up.”²⁷ Take, for instance, the use of independent redistricting commissions to draw district boundaries. Members of such a commission, like judges, may appear non-partisan but they undoubtedly have partisan loyalties. It’s not realistic to expect that people involved in public affairs will be apolitical. But even if they were non-partisan, redistricting commissions with the power to unilaterally determine district lines would not be accountable to the voters. What recourse would voters have if a redistricting commission produced district maps the voters found objectionable?

Finally, this perspective maintains that the rules of the game were established at the founding of the country, when the Constitution was adopted. Those rules – essentially, the Constitution – can be amended, but that process itself is provided for in the Constitution. However, in the absence of an attempt to change the Constitution, formally or informally as part of what might be referred to as “constitutional politics,” “normal politics” reigns.²⁸ Normal politics is the familiar, day-to-day struggle over “who gets what, when, and how,” as the political scientist Harold Lasswell famously put it.²⁹ Redistricting, then, is simply part of normal politics.

One might argue, of course, that the Constitution forbids partisan gerrymandering. We will consider that argument in a later chapter. For now, suffice it to say that the realpolitik viewpoint does not believe partisan gerrymandering is constitutionally prohibited. To understand why, it’s worth quoting law professors Larry Alexander and Saikrishna Prakash at length:

There is no natural or obviously correct way of dividing voters into equipopulous districts. People have diverse preferences about how that ought to occur. Nor are there obviously wrong or improper ways of allocating voters across equipopulous districts. If we are to believe that the Constitution mandates certain districting and electioneering ideals, then we have to suppose that the Constitution implicitly imposes certain rather controversial and complex preferences on the conduct of districting and elections. Necessarily, we have to imagine that the Constitution also implicitly rejects all other plausible preferences about districting and elections. We think that such claims have no merit.³⁰

The countervailing viewpoint, the civic redistricting perspective, acknowledges that neutrality in human processes is difficult to achieve. Nonetheless, it takes the position that we should strive to find a set of rules governing the operation of elections that both parties (or, indeed, all parties) can accept. Without opening a Pandora’s box of contemporary political theory, this position is grounded in the notion of public reason and the claim that political actors ought to be reasonable in their public deliberations.³¹ To be reasonable, a person must be willing “to live by rules that can be justified to similarly motivated citizens on grounds that they could accept.”³² There is, then, an important element of reciprocity at work here. What is fair for one side ought to be fair for the other (or others). We’ll find a version of reciprocity later in the book in the concept of partisan symmetry.

With respect to processes governing democratic elections, reasonable people would likely agree that the purpose should be to establish robust competition. Competitive elections are, after all, a hallmark of democracy. In a series of academic papers, the legal scholars Samuel Issacharoff and Richard Pildes develop a framework for adjudicating electoral rules that seeks to maintain “competitive partisan political environments that avoid insider lockups of democratic politics.”³³ Whereas current jurisprudence interprets election law in the context of individual rights and state interests, Issacharoff and Pildes argue that the focus should be on “the background rules that structure partisan political competition.”³⁴ “The key to our argument,” they write,

is to view appropriate democratic politics as akin in important respects to a robustly competitive market – a market whose vitality depends on both clear rules of engagement and on the ritual cleansing born of competition. Only through an appropriately competitive partisan environment can one of the central goals of democratic politics be realized: that the policy outcomes of the political process be responsive to the interests and views of citizens. But politics shares with all markets a vulnerability to anticompetitive behavior. In political markets, anticompetitive entities alter the rules of engagement to protect established powers from the risk of successful challenge.³⁵

Gerrymandering, of course, is the quintessential anticompetitive tactic. Drawing on the theory of political competition, Issacharoff finds problematic even a legislative map that is mutually agreed upon by both parties if that map gives the parties a distinct electoral advantage in their respective districts. This, he argues, causes voters harm based on the “constriction of the competitive process by which voters can express choice.”³⁶ Issacharoff analogizes the collusive behavior of these parties to companies, say Coke and Pepsi, that agree to sell their products in different geographical regions to avoid competing with one another. Such an agreement would be illegal on antitrust grounds. Partisan cartels, he maintains, should be treated similarly.³⁷

What of the argument made by the realpolitik redistricting camp that voters will decide who they want drawing district boundaries? The response from the civic redistricting perspective is that such a claim is naïve in several respects. First of all, voters are faced with the relevant choice just once or twice every ten years, in elections immediately preceding the census count (i.e., election years ending in “8” and/or “0,” depending on when the officials responsible for redistricting will be elected). This decennial opportunity doesn’t really allow voters to influence the redistricting process. The exigencies of a given election year – is it a presidential or a midterm election year; is the economy strong or weak – are likely to have more impact on voters’ choices than is the fact that the redistricting cycle starts in the near future. Furthermore, even if voters wanted to cast their ballots solely on the basis of their redistricting preferences, they have no way of assessing potential maps because those can’t be drawn until the census has taken place. As a result, voters are left with only one option, namely, the crude partisan determination that their party should control the redistricting process. However, as the polls cited at the beginning of this chapter suggest, the majority of voters do not want gerrymandered districts, even if such districts are biased in their party’s favor. A victorious party that believes it has a mandate to run the redistricting process is almost certainly mistaken. Finally, in elections for legislators who will be involved in the upcoming redistricting cycle, district boundaries drawn in the previous round of redistricting will constrain voters’ choices. If those boundaries were the result of partisan gerrymandering, the choices in the current pre-redistricting elections will already have been unduly influenced.

Many of those who would like to see politics removed from the redistricting process believe that the best way to do so is to take responsibility for drawing district lines away from elected officials. Opponents argue that it is more democratic to allow elected officials, who are accountable to the electorate, to draw district maps rather than unelected redistricting commissions or judges, who don’t have to answer to anyone for their work. However, those who take the civic redistricting position believe both that elected officials are not as accountable for the maps they draw as we might think and that redistricting commissions can be designed to ensure accountability.

Imagine what would be required of voters if they were to hold accountable the elected officials drawing maps. A voter would have to be aware of the range of potential maps being considered during the redistricting process and would have to develop a preference for one of the maps (per legislative chamber). Not many voters are apt to gather this information, or even have access to it, and few would come to a judgment on it. If, by some chance, most voters did identify their preferred maps, they could only then punish those responsible for supporting district lines they object to after the maps had been drawn. Thus, even if they were to defeat the offending mapmakers at the next election, the maps those officials drew would be in use for the rest of the decade. (Some states do allow mid-decade redistricting, though in practice this rarely happens and its legality in most of those states is ambiguous at this point.³⁸) Furthermore, the whole point of gerrymandering is to shield one party, or a group of incumbents, from serious electoral threat. How likely is it, then, that elected officials in newly gerrymandered districts are going to be vulnerable in the next election? To the extent that elected officials are invulnerable, there is no real mechanism for accountability.

We’ll discuss redistricting commissions in detail later in the book. For now, it should simply be noted that there are ways to design independent redistricting commissions so that they are accountable to the citizenry. Indeed, there are ways to design these commissions to allow the public at least some role in the process.³⁹ Accountability can be preserved even if district lines aren’t drawn by elected officials.

Those who take the civic redistricting perspective insist that redistricting is not – and shouldn’t be – part of normal politics. It is not part of normal politics because it is not concerned with the identification of policy problems and solutions. And it should not be part of normal politics because it lays the foundation for normal politics by delineating the playing field. To the extent that politics plays a role in the redistricting process, the normal politics that occur after lines have been drawn will be skewed. That means, in part, that normal politics may not reflect the underlying preferences of the electorate.

Of course, the redistricting process is not part of constitutional politics either. To be sure, there is a debate over whether partisan gerrymandering is permitted by the Constitution (with most of those in the civic redistricting camp believing it is not, for reasons that will be discussed elsewhere in this book). Those engaged in that debate are, no doubt, involved in constitutional politics. But the redistricting process itself isn’t part of any attempt to alter our understanding of our most foundational document.⁴⁰ Redistricting, then, occurs – or should occur – within a unique space in American politics. Without reaching the lofty arena of constitutional politics, it ought to nonetheless remain above normal politics.

In the end, these competing perspectives on the nature of redistricting differ not in terms of how democratic they are but in terms of the way they conceive of democracy. One takes the view that democracy is conflictual and is shot through with politics. This view of democracy is like the American humorist Finley Peter Dunne’s view of politics – it “ain’t beanbag.”⁴¹ A free society allows individuals, typically acting in groups, to pursue their own self-interest. This makes democracy a battle between groups of people over the future direction of the country. Given the stakes, we should expect those groups to play hardball and any legal means to achieve one’s ends are permitted.

The other view is that democracy is about achieving the common good. From this perspective, too much partisanship is antithetical to that purpose. While there will be vigorous debate over what the common good requires, the pursuit of one’s own conception of the common good does not justify bending the basic rules of the game. If the only constraint on political actors’ behavior is what is legally permissible, the norms of democracy – including the expectation of fair play – will erode and deep divisions will emerge in society. Under those conditions, the common good is nearly impossible to achieve.