If the Supreme Court Won’t Prevent Gerrymandering, Who Will?

A progressive take on states’ rights can come to the rescue.

Progressives have long looked to federal courts to guard the rights of racial minorities and dissenters. But that protection is weakening. Faced with the enormous injustice of partisan gerrymandering, the Supreme Court last month permitted politicians drawing election district maps to discriminate by party and even potentially mask their racial “packing” and “cracking” as mere partisanship. To fill this growing gap, reformers should take an unexpected route: states’ rights.

Chief Justice John Roberts wrote an opinion that allowed two gerrymanders, one committed by Republicans in North Carolina and one by Democrats in Maryland, to stand. His reason? He could not find a standard to judge when an offense had occurred. He rejected a considerable body of empirical research, including suggestions by my colleagues and me in an amicus brief.

Federalism, in which regional governments retain considerable power, has been invoked in the past to take away representational rights. But a local approach, properly applied, can also restore them. In a stinging dissent, Justice Elena Kagan pointed out that where the Supreme Court had failed to define and regulate partisan gerrymandering, four lower federal courts had succeeded.

State courts can do so, too — without federal approval. The elections clause of the Constitution gives states broad authority over redistricting as long as the actions do not run afoul of federal law. Chief Justice Roberts conceded that states can act on their own by “actively addressing the issue through state constitutional amendments and legislation.” Now that Republicans and their designates control the Supreme Court, the Senate and the presidency, reformers should embrace what Heather K. Gerken, the dean of Yale Law School, callsprogressive federalism.”

The Princeton Gerrymandering Project, which I founded, has investigated federalist approaches to redistricting reform. We found 27 instances in which a district map was overturned on the basis of state law. Recently, Pennsylvania’s Supreme Court overturned an unfair congressional map, citing the state Constitution’s free and equal elections clause, a phrase that is also found in 27 other state Constitutions.

And 47 Constitutions prohibit government discrimination based on political viewpoint, a principle also found in the First Amendment, which Justice Kagan has argued should protect partisan voters. Drawing a district’s boundaries to dilute a voter’s influence violates the principle of equal protection under the law as found in the 14th Amendment — and in 24 state Constitutions.

The use of federalism to protect voter rights will be tested in a trial this month in North Carolina, where General Assembly districts are being challenged as a partisan gerrymander. Since North Carolina law does not require the governor’s approval for maps, state court may be voters’ best and last chance at fair districts there.

Proving the case should be straightforward. Computer simulations can quickly explore thousands of alternatives to determine whether a map is an extreme partisan outlier. For example, in the Supreme Court case, which concerned a congressional map, Jonathan Mattingly, an expert witness, demonstrated that one congressional districting plan was more extreme than more than 99 percent of over 24,000 possible alternatives that honor city and county boundaries. Simpler mathematical formulas, which detect inequities of opportunity and outcome, can also help diagnose astate legislative map as extreme.

These technologies will soon be within reach of nearly everyone. Thomas Hofeller, a redistricting expert who died recently, drew North Carolina’s gerrymander. He was a Picasso of partisan maps. But thanks to data-sharing projects like OpenPrecincts and the Public Mapping Project, as well as free software like Dave’s Redistricting and PlanScore, citizens in every state will be able to draw their own maps — and expose partisan malfeasance the moment it emerges.

Federalism can also be imposed by voters directly. In 2018, redistricting reform initiatives passed in Colorado, Michigan, Missouri and Utah. These reforms earned 8 to 19 percentage points more support than the Democratic vote share in statewide races, showing that reform has bipartisan support.

The Colorado and Michigan initiatives establish independent redistricting commissions, in which passing a plan requires votes from independents or members of both parties. The political scientist Alex Keena and collaborators have shown that independently drawn maps are more balanced than maps drawn by either party alone. These commissions can also ensure representation for racial minorities and other communities. Citizens can change the law in the 24 states that allow voter-initiated ballot measures, and local reformers are now working to qualify such a measure for the ballot in Arkansas.

The spoils from gerrymandering are enormous. After a wave election in 2010 favoring Republicans, Republican-drawn gerrymanders in 10 states tilted the balance of power in Congress by nearly 20 seats, a modern high, and took hundreds of legislative seats out of contention.

With increased local power in the redistricting cycle of 2021, Democrats may be tempted to play tit-for-tat, imposing their own gerrymanders. But a proposed constitutional amendment that would have insulated Democrats from voters failed in New Jersey, in part because of popular anger. Rather than reducing electoral competition further, Democrats should seek representational balance by taking the high road of reform. They would be in step with over 70 percent of Americans who agree that gerrymandering should be curbed.

In states without the initiative process, legislators themselves will occasionally agree to give up power. The New Hampshire legislature has sent a reform bill to Gov. Chris Sununu. The Virginia legislature is considering a constitutional amendment for the 2020 ballot, though perhaps not entirely out of altruism: The current Republican majority may lose seats and fall victim to a future Democratic gerrymander.

A final route to reform uses the governor’s veto to check legislatures. Maryland has a Republican governor, counterbalancing the Democratic legislature. Wisconsin, site of one of the most extreme Republican gerrymanders in the nation, now has a Democratic governor. Depending on three competitive governors’ races this November, bipartisan control may spread to Kentucky, Louisiana and Mississippi.

Putting all federalist routes together — courts, voter initiatives, laws and elections — I estimate that reform is actually possible in the vast majority of states, even without the Supreme Court’s help.

In biological systems, my other area of expertise, self-correction prevents living systems from going off-kilter. If we don’t sweat, we overheat. When cells disregard the boundaries of the organ where they belong, the result is cancer. So too in democracy: Without a mechanism to ensure fair districts, a political party can ensconce itself in power indefinitely. By introducing self-correction mechanisms, we can reverse the erosion of faith in democracy that comes from gerrymandering.

Sex, Ducks, and The Founding Feud

Jilted lovers and disrupted duck hunts provide a very odd look into the soul of the US Constitution.

What does a jilted lover’s revenge have to do with an international chemical weapons treaty? More than you’d think. From poison and duck hunts to our feuding fathers, we step into a very odd tug of war between local and federal law.

When Carol Anne Bond found out her husband had impregnated her best friend, she took revenge. Carol’s particular flavor of revenge led to a US Supreme Court case that puts into question a part of the US treaty power.

Producer Kelsey Padgett drags Jad and Robert into Carol’s poisonous web, which starts them on a journey from the birth of the US Constitution, to a duck hunt in 1918, and back to the present day … it’s all about an ongoing argument that might actually be the very heart and soul of our system of government

Goldberg: Seeking Tolerance and Reprieve from Culture Wars

.. the Offended Wars are a kind of Potemkin conflict for the true battle over double standards.

The assumption is that liberals’ hearts are in the right place, thus, when they stray off the path rhetorically or in some other way, it’s not seen as revelatory of something darker or more sinister. Of course, conservatives do the same thing. We assume the best of our own tribe and can dismiss a joke or errant tweet quite easily from one of our own.

.. I think one of the reasons we got here is that liberals were truly blind to the double standard they benefit from and the norms they were happy to see violated when the people violating them were “the good guys.”

.. the principle of religious tolerance was a last resort, an utterly utilitarian practical compromise, after the combatants in Europe’s religious wars recognized what C. V. Wedgwood called “the essential futility of putting the beliefs of the mind to the judgment of the sword.”

.. First, we need to return to the idea of ideological and theological pluralism but moral consensus. People are free to believe whatever they like, and they are free to act on those beliefs so long as they don’t harm others. Second, we need a lot less nationalism (for want of a better term). What I mean by that is that the federal government and various national elites need to stop thinking that the whole country needs to think and act in one way.

..  Fox News likes to do stories that boil down to “Can you believe someone in San Francisco believes X!?” MSNBC likes stories that boil down to “We have troubling reports that someone in Wyoming believes Y!” The underlying assumption is that in America everyone is supposed to think alike. Well, unless someone is actually being harmed — and I don’t mean in the terminally asinine construction, “words hurt”

.. Lastly, we need to get as much power out of Washington as conceivably possible.

.. As long as we think that the federal government, especially the executive branch, has monarchical power to impose a vision on the whole country, we will turn political contests into cultural warfare. The Whigs couldn’t abide a Catholic on the throne because they believed the king would impose his vision on all of England. The Catholics felt the same way about the prospect of a Protestant crown. The solution is to restrain the power of the crown — so that the faith of the monarch doesn’t matter.

What happens when a party becomes unmoored from the truth and the American creed

a willingness to tolerate falsehoods and attacks upon democratic norms and the American creed, as though these are matters of style.

.. “conservatism” these days has become (both in the eyes of liberals who think conservatism is interchangeable with “right-wing extremism” and those claiming the conservative mantle) a cartoon version of itself.

.. much of the cheering for “conservative” ends skips over the details, disregards the substance and ignores context — none of which are indices of conservative thought.

.. Means that do not respect values that conservatives used to hold dear (e.g. free markets, federalism, family unity) are no cause for celebration.

.. if conservatives think Trump’s accomplishments are conservative, then conservatism has morphed into something foreign to those who spent decades advocating a governing philosophy rooted in

  • opportunity for all,
  • civility,
  • federalism,
  • the rule of law,
  • free markets and
  • limited but vigorous government.

.. Trump’s right-wing apologists would have us treat Trump’s racism, attacks on democratic norms, dishonesty and contempt for independent democratic institutions as matters of style. “Well I don’t much like his tweeting but …” “Well, we don’t really agree that there are good people on the neo-Nazi side.” “Well, we all knew he was a bit of a liar.

.. Call this the “other than that, Mrs. Lincoln, how did you enjoy the play?”  syndrome

.. If one puts racism so far down the list of priorities that it barely deserves a raised eyebrow — or worse, requires some fudging to cover it up — one has become an enabler of racism. If one brushes off repeated, deliberate falsehoods because they are embarrassing, one becomes an enabler of lying, a handmaiden to attacks on objective truth. These are not inconsequential matters; they are not style issues. Truth-telling and repudiation of racism are or should be top principles both for America and for conservatism.

.. Put on top of that the willingness to prevaricate (Well, if we say it was “shithouse” and not “shithole,” we can say Sen. Dick Durbin was lying!) and you have an assault on principles that are the foundation for our democracy and for conservatism (or what it used to be)

.. The assertion that we can disregard everything the president says so long as it does not become cemented in law misconceives the role of the presidency and ignores his oath.

.. His oath was not to produce tax cuts or regulatory rollbacks. He swore an oath to preserve, protect and defend the Constitution, including reverence for the First Amendment, an independent judiciary and equal protection under the law.

.. The party and Trump apologists who brandish the conservative moniker, we fear, have lost their way. They’ve ceased to think deeply about the substance of policy and its effects, but worse, they have inverted their once-claimed priorities. What is most important — democratic norms and objective truth — is now for too many an afterthought, and Trump’s evisceration of the same, mere differences in style. We cannot abide by this, and neither should Americans of whatever political stripe.

Jeff Sessions has done more for Trumpism than anyone. Trump still wants to ditch him.

Miller, once a Sessions acolyte, remains in the White House, his silence loudly suggesting that he’s content to let his old boss twist in the wind.

Over the past decade, conservatives have taken a hard look at criminal justice reform and concluded that our long-standing, tough-on-crime political war led to a system that was too punitive, too reflexive and too racially separate — to the point that just about the only bipartisan thing going in Washington right now is the joint bail reform initiative of conservatarian Sen. Rand Paul and San Francisco liberal Sen. Kamala Harris. But the Sessions Justice Department, consonant with the swaggering lock-’em-up rhetoric of the Trump campaign, has ordered federal prosecutors to aim for the toughest penalties in every case.

Non-Trump conservatives find the Sessions Justice Department’s expansive statism hard to swallow; his reiterationof the tried-and-failed War on Drugs is particularly repellent to those who claim to believe in federalism. Despite decades of Republicans advocating for power to flow back to the states and away from one-size-fits-all Washington regulatory and legal control, the “beleaguered” attorney general’s almost obsessive anti-drug crusade has focused on states that have passed marijuana decriminalization and legalization. Just the kind of showy but ineffective and unconservative policy that Trump routinely favors.

Sessions reversed an Obama-era reform that had been heralded across the political spectrum when he reapplied civil asset forfeiture regulations, allowing law enforcement agencies to seize property for people suspected of crimes — a move that law professor and conservative USA Today columnist Glenn Harlan Reynolds rightly argues is a message that “the feds see the rest of us as prey, not as citizens.”

 

AEI: Improving Health and Health Care: An Agenda for Reform

Those Americans without access to employer coverage should be given a refundable, age-adjusted tax credit that is set roughly equal to the average tax break for an employer plan.

.. This rule would protect persons with preexisting conditions from being charged more, or denied coverage, based on their health status so long as they have not experienced long breaks in insurance enrollment

.. States could also boost insurance enrollment by assigning persons who are eligible for the tax credits but have failed to pick an insurance policy to a default insurance plan. The upfront deductibles for these insurance plans would be set as necessary to ensure the premiums for enrollment would be equal to the federal tax credit, thus ensuring no additional premium would be required from a person assigned to a default plan.

.. Reform of Medicaid must start with changing how the federal government pays for its share of total cost. The program should be divided into its two distinct subparts, one for able-bodied adults and their children and the other for the disabled and elderly.

.. Medicare’s rules for paying hospitals, physicians, and other service providers heavily influence how care is delivered to all patients, not just Medicare enrollees. The program would improve if there were fewer regulations and more emphasis on market-based reforms. The starting point should be conversion of the program, on a prospective basis, to a premium support model

.. HSAs should be a central component of health care in the United States. The accounts provide strong incentives for their owners to seek the best value for their health care purchases, and they provide a ready vehicle for providing additional protection against high medical expenses.

.. A comprehensive reform plan should also reform the health insurance benefit for federal employees so that it operates like a defined contribution program.

Principles for Reform

  1. Citizens, not government, should control health care.
  2. Government subsidies should come in the form of defined contribution payments.
  3. Move power and control from the federal government to individuals, families, and states.
  4. Suppliers of medical services must have more freedom to innovate and provide better services to patients and consumers.
  5. Reform must improve the federal fiscal outlook by reducing long-term health obligations.

The Good, the Bad, and the Senate Health-Care Bill

It is a function of some things they’ve come to prioritize about the individual health-insurance market and Medicaid, and some things they’ve learned about the intricacies of the Byrd rule and Senate procedural constraints.

.. After seven years of saying they want to repeal and replace Obamacare, congressional Republicans have been forced to confront the fact that many of them, perhaps most, actually don’t quite want to do that.

.. That doesn’t mean that most of them never did. The case for repeal was strongest in the three or four years between the enactment and implementation of Obamacare. As more time passes since the beginning of implementation three and a half years ago, and more people’s lives become intertwined with the program for good and bad, the case for addressing Obamacare’s immense deficiencies by repeal weakens

.. I still think it is very much the case that the cause of good policy (almost regardless of your priorities in health care) would be better served by a repeal and replacement, with appropriate transition measures, than by this sort of tinkering — you’d get more coverage, a better health-financing system, and a more appropriate role for government.

.. The president has been an additional unpredictable political constraint — as the more coherent of his musings on health care have all suggested he is not comfortable with repealing and replacing the law, or at least is unfamiliar with the tradeoffs involved and unhappy when he learns about them.

.. But another thing Republicans have learned in these six months is that Donald Trump is an exceptionally weak president, probably the weakest of their lifetimes, and he is likely to accept whatever they do. He’ll celebrate it, sitting himself front and center while they stand around him awkwardly. He’ll praise it wildly and inaccurately. And he’ll sign it — even if pretty soon thereafter, in the wake of bad press, he tries to distance himself from it on Twitter and calls them names.

.. It is pegged to a less comprehensive insurance model and will both cost less and leave more room for more variation in insurance design — though this obviously means it will be less valuable and helpful to some of the people now getting subsidies.

.. Where today, people newly covered by Obamacare’s Medicaid expansion (who tend to be childless adults with relatively higher incomes than the non-expansion population) are funded by the federal government on much better terms than the traditional Medicaid population (which tends to include more women with children and people with even lower incomes), the Senate bill would gradually equalize funding for the two groups, effectively shifting Medicaid’s focus back to the most vulnerable of its beneficiaries.

.. the Senate bill would provide an income and age-based subsidy that would allow these lowest-income individuals to afford at least modest insurance coverage in the individual market.

.. the Senate bill as written would probably mean that Medicaid would cost the federal government about 30 percent more ten years from now than it does today (as opposed to about 65 percent more under current law), and would cover something like the same number of people at that point as today (as opposed to 10 million more under current law)

.. once states got their bearings about just how much it would allow them to do, we could see some genuinely different approaches to health-insurance regulation among the different states — with blue and red models, rural and urban approaches, and more and less competitive systems.

.. alters a portion of a broader pre-existing statute. But it is very broad. In its scope and structure, this redesigned waiver would be unlike anything else in American federalism — which also means we don’t know how it would work. Those of us inclined to look favorably upon a bottom-up, experimental mindset in policy design will be inclined to think the best of the possibilities here.

.. it looks like this provision would render any insurer who offers an individual-market plan that covers abortion in a given state ineligible to benefit from the stability fund in that state. It seems to me, though I can’t say I’m sure, that this would effectively mean that no insurance plans in the individual market would cover abortion. It could easily even mean that California, which has a state law requiring individual-market plans to cover elective abortion, would have to repeal that law or else forgo access to the stability fund.