Len’s Letter #69 The Gerrymander Index in the House of Representatives

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March 15^th   , 2024    Len’s Letter #69  The Gerrymander Index in the House of Representatives

Justices Kagan and Roberts

 In June, 2019, the US Supreme Court decided, by a 5-4 majority, that, as the Brennan Center described it “federal courts have no role to play in disputes over maps that were drawn on a purely partisan basis.”  Chief Justice Roberts said there were no “discernable and manageable’ standards” with which to identify when these gerrymanders are unconstitutional.”

In dissent, Justice Elena Kagan replied “These gerrymanders dishonored our democracy….Left unchecked, as the court does today, gerrymanders like these may irreparably damage our system of government.”   She explained that these maps “reduce the weight of certain citizens’ votes. Depriving them of the ability to participate equally in elections; they also punish voters for their political expression and association.  These dual injuries…implicated fundamental principles of both equal protection and freedom of speech.”

Kagan further explained that experts ran more than 24,000 simulations of maps that used traditional nonpartisan redistricting criteria.  More than 99% of them produced at least one more Democratic seat than the 10-3 distribution of seats in North Carolina.

Justice Roberts’ final word: “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts…..Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”

Justice Kagan had been clear enough about Constitutional authority:  “Citizens of the United States were deprived of the ability to participate equally in elections and were punished for their political expression and association”.  These voters, she said, were granted neither “equal protection nor freedom of speech”.

Justice Kagan did not, however, offer a “legal standard to limit and direct their decisions.”

Today’s piece is an effort to identify a simple standard for measuring the extent of gerrymandering.  Having identified a standard, it may be possible to identify the permissible limits of gerrymandering and the direction that state legislators could be given.

Statewide elections for Governor, for US Senators, for President, set the general disposition for how a state divides its votes between Republicans and Democrats.  We can measure the statewide disposition to the Congressional seats that are a product of the districting created by state legislatures or by courts or by independent commissions.

An average of the two most recent gubernatorial elections, two most recent US Senate elections, and the most recent presidential election, adjusted to compare the votes for Republicans and Democrats with the percentage of Republicans and Democrats elected to Congress in the most recent Congressional election.  The difference is the Gerrymander Index.

If a future Court (or my readers) were to take the Gerrymandered Index seriously, there is a natural break at the point where the comparison does not call for a change in representation and where the comparison does call for a change in representation.  Initially, I looked at the twelve most populous states and found that the net change in national representation was minimal.  Looking at the totality, though, 28 seats flip from Democrat to Republican and 42 flip from Republican to Democrat.  That is the extent to which we are deprived of a Congress that represents the voting tendencies of all the states with more than a single Member of Congress.

Let me explain by using a few examples.

1. Pennsylvania
   1. The adjusted average (Democrats and Republican only) for the 2022 US Senate race, (Fetterman), the 2022 Governor race (Shapiro), the 2020 Presidential race (Biden), the 2018 US Senate race (Casey) and the 2018 Governor race (Wolf) was 55% for the Democrats and 45%for the Republicans.
   2. The 2022 election left Pennsylvania with 9 Democratic Members of Congress and 8 Republican members of Congress – 53% Democrats, 47% Subtract 45 from 47, the Gerrymander Index is 2. That is below a GI of 10, which at this time, is the point at which calculations suggest a gerrymander problem
   3. 45% of Pennsylvania’s 17 Members of Congress gets you 8 Members. Pennsylvania is not gerrymandered.
2. Mississippi
   1. The adjusted average (Democrats and Republicans only) for the 2023 Governor’s race (Reeves), the 2020 Presidential race (Trump), the 2020 US Senate race (Hyde Smith), the 2019 Governor’s race (Reeves), and the 2018 US Senate race (Wicker) was 56% Republican and 44%
   2. The 2022 election left Mississippi with 1 Democrat and 3 Republicans in Congress. Democrats had only 25% of the seats, yielding a GI of 19.  More important, if Democrats had 44% of the Congressional seats, those seats would be evenly divided – 2 seats held by each party.
   3. The Democrats gain a seat.
3. Washington
   1. The adjusted average (Democrats and Republicans only) for the 2022 Senate race (Murray), 2020 Governor’s race (Inslee), the 2020 Presidential race (Biden), the 2018 Senate race (Cantwell), and the 2016 Governor’s race (Inslee) was 57% Democratic, 43% Republican.
   2. The 2022 election left Washington with 8 Democrats and 2 Republicans in the House of Representatives. If Republicans had 43% of the Congressional seats instead of 20%, they would gain 2 seats.  Washington would then have 6 Democrats and 4 Republicans in Congress.  Republicans would gain 2 seats.
   3. For identifying where to draw the line, the difference between having 20% of the seats and 43% places Washington GI at 23.

Is it possible to make these kinds of changes?  They require a reverse gerrymander.  We see this happen when the courts require that representation based on racial discrimination be changed.  We cannot expect states to make these changes one state at a time.  Unless there is a national change, we will get situations like North Carolina where a changed State Supreme Court allowed this state with a 50-50 average state-wide vote to revise districts so that instead of electing 7 Democrats and 7 Republicans to Congress, North Carolina is projected to elect 10 Republicans and 4 Democrats.

It is enough of a failure of democracy that we have a constitutionally required US Senate that deprives us of equal representation. (see Len’s Letter # 59 Unrigging our System).  We can expect the “people’s house,” the House of Representatives, to actually represent us.  Let politicians know what you think.