Contributor Post Created with Sketch. Gerrymandering at SCOTUS

Richard Epstein
By Richard Epstein
Richard Epstein Contributor
Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Cas… [more]
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The Supreme Court has just heard oral argument in the highly anticipated case of Gill v. Whitford on the constitutionality of political gerrymandering. At issue is Wisconsin’s Act 43, a state redistricting plan enacted by a Republican legislature in 2011, which allowed the GOP to capture both houses of the state legislature in the 2012 and 2014 elections by turning a Republican vote of under 50 percent into a near 60 percent majority in legislative seats. But the act was then successfully challenged in federal district court before Wisconsin appealed to the Supreme Court.

In the case, the GOP relied on the familiar technique of partisan gerrymandering, long used by both parties, to fashion districts that force the opposition to “waste” its votes. The opposition racks up huge majorities in a small number of districts, enabling the controlling party to gain a larger number of seats by smaller majorities. One measure of the effectiveness of this technique is the much debated “efficiency gap.” As the challengers explain in their brief, that is “calculated by taking one party’s total wasted votes in an election, subtracting the other party’s total wasted votes, and dividing by the total number of votes cast.” The greater the gap, the greater the imbalance of wasted votes between parties—and the more likely that the gerrymandering will give the controlling party influence greater than its share of the statewide popular vote.

The Justices agreed in oral argument that this bipartisan practice is deeply unsavory. But then disagreement quickly set in about whether any possible cure would be worse than the disease itself, as Wisconsin stoutly insisted in its brief that decried the want of predictable remedial standards. Let a challenge succeed in one state, and similar challenges will be raised everywhere. Given the interdependence of district boundaries, changing one district could necessitate redrawing a state’s entire map.

Gill hearkens back to Colegrove v. Green (1946), where Justice Felix Frankfurter refused to redress major malapportionment in Illinois “because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination.” In other words, legislatures, not courts, have to fix this problem. Frankfurter observed that striking down one bad plan would not put a better one in its place, so he declined “to enter this political thicket.” Congress, he insisted, could secure redistricting if the state legislatures refused to heal themselves. Naturally, Congress never intervened.

Colegrove’s passive approach was repudiated decisively in 1962 in Baker v. Carr. There, Justice William Brennan, over a fierce Frankfurter dissent, leapt into action against an intransigent Tennessee legislature that since 1901 had refused to reapportion its districts after each decennial census despite large population shifts across districts within the state. Baker held that the massive disparities in district size had “diluted” the voting power of the citizens in the underrepresented districts. To cure this problem, Brennan fashioned the “one person, one vote” rule under the Equal Protection Clause of the Fourteenth Amendment, which says simply that no state shall “deny to any person within its jurisdiction, the equal protection of the laws.”

Baker ushered in a tumultuous period of massive legislative redistricting. But it was almost surely wrong as a matter of constitutional law. The Equal Protection Clause is an odd home for any claim about voting rights, as these rights are normally conferred only on citizens, not on all persons. The Privileges or Immunities Clause of the Fourteenth Amendment—“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”— meets that objection, only to raise another. The set of rights included under the opaque phrase “privileges or immunities” deals with voting rights only in “the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised,” as stated in the key 1823 case of Corfield v. Coryell. But this only gives people the right to vote under the existing law. It does not authorize either Congress or the federal courts to make any changes to state law.

A more comfortable home for the reapportionment project would have been the Guarantee Clause of Article 4, Section 4, which provides, “The United States shall guarantee to every state in the Union a Republican form of government.” But here, too, the difficulties are legion. In the 1849 case of Luther v. Borden, the Court held that the Clause was non-justiciable, meaning that it was not a proper subject for courts to deal with. But that does not render the Guarantee Clause in redistricting cases any more non-justiciable than the Equal Protection Clause.

The implications of the two clauses differ markedly in redistricting cases, for the Guarantee Clause does not support the “one person, one vote” remedy: a Republican government allows states to opt for multiple schemes of representation, chosen by different means, which the single efficiency gap measure ignores. So even if the Guarantee Clause could block rampant malapportionment, it lets the states imitate the United States by using choosing its Senate by a different formula—a result blocked the Equal Protection Clause in 1964 in Reynolds v. Sims.

Today, no one wants to walk back on Baker. Whatever its doctrinal weaknesses, it used an intelligible and manageable remedy to address a patent political abuse. Ironically, its greatest flaw was that the remedy was too weak. With a bit of warning, states could find, as in Gill, clever ways to skew political representation within the one person, one vote framework, even using compact districts.

Baker’s weak constitutional foundations surfaced with renewed vigor in Gill. When Justice Neil Gorsuch asked the challengers what constitutional provision they relied on, he was met with a laconic response from Justice Ruth Bader Ginsburg: “Where did one person, one vote come from?” Unfortunately, her response cuts not only against the Gorsuch query but also against Baker’s doctrinal shortcomings. It also puts Frankfurter’s political thicket front and center, given that the remedial complications in Gill vastly exceed those in Baker, even as the anticipated gains are far smaller.

Wisconsin landed some body blows when it noted in oral argument that the constitutionally suspect imbalances did not occur only when political actors—of both parties—drew the maps. They also arose with “court-drawn maps, commission-drawn maps, bipartisan-drawn maps, including the immediately prior Wisconsin-drawn map.” That list exhausts all the known possibilities, leaving elusive the prospect of finding a perfectly neutral map.

The difficulties arise for several reasons. First, the political alignment of voters is not randomly distributed—Democrats tend to cluster in cities, while Republicans predominate in rural areas. Compact districts contain wasted votes. Upending the legislative map in Gill could result in irregular districts with odd shapes that cut across different communities, often with different local issues and preferences.

Second, it is difficult to stop the use of wasted votes and to keep in place the current prohibitions against racial gerrymandering. Thus in the 1993 case of Shaw v. Reno, U.S. Attorney General Janet Reno insisted that a North Carolina redistricting plan had to be drawn along grotesque geographical lines to allow the 20 percent black population to obtain two “majority-minority” districts out of the twelve districts in the state. That revised scheme was promptly attacked by conservatives as a racial gerrymander. An obviously perplexed Justice Sandra Day O’Connor acknowledged that the district lines were blatantly drawn for racial reasons, but she then remanded the case for the District Court to “determine whether the North Carolina plan is narrowly tailored to further a compelling governmental interest.” Shaw necessarily meant that some racial tailoring was permissible, without explaining just how much or why.

Today, no one knows how to balance inconsistent racial and political imperatives in states with large minority populations. And in those cases that have no significant racial dimension, it is unclear how far the remedial measures must go. Must states eliminate the efficiency gap (or some other measure) entirely, or only reduce it to some as yet undefined, maximally permissible level? These are hard choices, precisely because both sides in the debate raise powerful arguments.

So where do matters stand? From the oral argument, it seems clear that the four liberal justices are prepared to jump head first into the political thicket and kick the case back to the district court to develop some kind of redistricting plan. In contrast, the four conservative justices will likely vote against striking down Wisconsin’s redistricting program. So it all comes down to the enigmatic Justice Anthony Kennedy. Early in the argument, he raised the possibility that the case was better understood as one involving associational freedoms protected by the First Amendment, and not as a traditional equal protection challenge. But that doctrinal switch accomplishes nothing because the remedial difficulties do not disappear if the Court conjures up an improbable violation of a different constitutional provision. The case rightly creates immense unease on all sides. For the moment, I would side with the conservatives because the intervention is likely to lead us down the path of no return.

© 2017 by the Board of Trustees of Leland Stanford Junior University

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  1. Frank Monaldo Member
    Frank Monaldo

    On a related note, here is an article on the difficulty of drawing districts algorithmically given America’s political geography:

    https://www.citylab.com/equity/2013/02/why-computers-alone-cant-eliminate-corruption-redistricting/4790/

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    • October 10, 2017, at 12:35 PM PDT
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  2. Qoumidan Coolidge
    Qoumidan

    Blah blah blah, Ginger. I wish I understood this stuff better. I suppose I’ll keep reading up on it and hope something sticks.

    Thanks for the post, anyway!

    • #2
    • October 10, 2017, at 12:37 PM PDT
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  3. Z in MT Member
    Z in MT

    Frank Monaldo (View Comment):
    On a related note, here is an article on the difficulty of drawing districts algorithmically given America’s political geography:

    https://www.citylab.com/equity/2013/02/why-computers-alone-cant-eliminate-corruption-redistricting/4790/

    Interesting article.

    It seems that there are two competing interests. Legislatures are told they must gerrymander to ensure that minorities can achieve representation, but are then are told they can’t gerrymander to achieve advantage in legislative districts.

    Drawing district lines is about as political as it gets, which is why the courts should stay out of it.

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    • October 10, 2017, at 1:15 PM PDT
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  4. D.A. Venters Member
    D.A. Venters

    I agree the courts should leave this to the political process (unless some other violation of law or the Constitution occurs).

    Couldn’t you argue that allowing this kind of gerrymandering forces, or at least should force, political parties to try to appeal to voters outside their base – to form different coalitions?

    If the shoe were on the other foot, and Republicans were challenging Democrat gerrymandering, I’m sure we would hear some argument like this from the left: “Well, if Republicans don’t like how the lines are drawn, they should make an effort to broaden their appeal. It’s not our fault they’ve moved so far to the right that they don’t appeal to voters in certain areas anymore. They can’t go crying to the courts to protect them from everyday politics. They should just try to compete for those voters.” So, I think that should be the response to Democrats – if they are upset that no one is voting for them in rural areas, and so it’s easy for Republicans to gerrymander, then they should moderate and try to appeal to those voters. They shouldn’t look to the courts to protect their leftward drift.

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    • October 10, 2017, at 2:11 PM PDT
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  5. Unsk Member
    Unsk

    The ‘one man- one vote ” ruling has been a disaster for states like California, granting near control of the legislature to the urban counties.

    Previously like the structure of the US Congress, the State Assembly of California was based on a proportional system where each duly registered voter got a proportional vote in the election of his or her State Assemblyman based upon a near equally sized assembly district. But in the California State Senate, much like the Senate of the United States, each county elected just one State Senator, again proportionally but only within the confines of the particular county. This system affected a system of ‘checks and balances” where the urban voter preferences that dominated the State Assembly were balanced by preferences of the smaller counties in the State Senate.

    Many complained that the weight of the voters within the small few thousand strong rural counties counted far more than the then 6 million plus strong LA County. However, passing legislature was always meant to a struggle – a process that was supposed winnow out bad laws. Now the desires of the “cow counties” are overwhelmed and virtually ignored by the desires of the corrupt and often illegal alien dominated urban counties, which has led to several decades of truly bad governance in the State.

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    • October 10, 2017, at 3:24 PM PDT
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  6. Randy Webster Member
    Randy Webster

    Richard Epstein: not meet for judicial determination

    Did he say that, or did he say “mete?”

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    • October 10, 2017, at 4:18 PM PDT
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  7. blood thirsty neocon Inactive
    blood thirsty neocon

    Richard Epstein: The opposition racks up huge majorities in a small number of districts, enabling the controlling party to gain a larger number of seats by smaller majorities.

    I think Donald Trump just gerrymandered America…3d checkmate!

    • #7
    • October 10, 2017, at 6:43 PM PDT
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  8. James Gawron Thatcher
    James Gawron Joined in the first year of Ricochet Ricochet Charter Member

    Frank Monaldo (View Comment):
    On a related note, here is an article on the difficulty of drawing districts algorithmically given America’s political geography:

    https://www.citylab.com/equity/2013/02/why-computers-alone-cant-eliminate-corruption-redistricting/4790/

    Frank,

    I’m going to be the contrarian in this. I am amazed at the number of people who just take self-driving cars for granted. This is an incredibly difficult automation application. I don’t think we’ve seen the mayhem yet when the early models really start killing people. Meanwhile, I find it ludicrous that a computer program couldn’t randomly form districts according to any algorithm that the courts see fit. I can’t possibly understand how the interests of voters should be left to be exploited by political parties. The courts should most certainly involve themselves in this process and employ computers to make the final choices.

    The courts have imposed SSM by judicial fiat yet they can’t handle the difficult task of sorting out gerrymandering?? This total hogwash is exactly what’s wrong. Our overlords invade areas of life they have no business in and they avoid responsibility for those things for which they are the natural arbiter.

    Regards,

    Jim

    • #8
    • October 10, 2017, at 7:43 PM PDT
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  9. The Reticulator Member
    The Reticulator

    Frank Monaldo (View Comment):
    On a related note, here is an article on the difficulty of drawing districts algorithmically given America’s political geography:

    https://www.citylab.com/equity/2013/02/why-computers-alone-cant-eliminate-corruption-redistricting/4790/

    Thanks for the link to that article.

    I have long wished that congressional districts and state legislative districts were drawn along lines that gave high priority to honoring county/parish/township and other local governmental boundaries. I never had any illusions that that an algorithm that did that would be the end of the problem, but did not know that the problem had been looked at as thoroughly as described in the article.

    So in the end, it’s a political process. I’ve just now been playing in my head with possibilities that draw from arbitration processes where each side gets to propose a settlement and the arbiter must choose one or the other of the proposals. The idea is to motivate the two sides to propose reasonable settlements.

    But if a state legislature allowed each legislator who wanted to to propose a redistricting plan, and there was some voting process, perhaps a multi-step voting process, by which the one that got the most votes won, a legislative majority that maintained strict party discipline would probably result in gerrymandered districts not much different from the ones that are contentious now.

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    • October 10, 2017, at 8:09 PM PDT
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  10. Sabrdance Member
    Sabrdance

    As others have pointed out, the calculation of the efficiency gap basically boils down to “the loser is always gerrymandered out” because all of the votes they lose in close elections also count as “wasted.”

    Basically, this argument boils down to “we can’t win elections, so we demand the court save us.”

    The court didn’t accept this when Republicans were objecting the Democratic gerrymanders, they shouldn’t start now.

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    • October 10, 2017, at 8:25 PM PDT
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  11. The Reticulator Member
    The Reticulator

    James Gawron (View Comment):
    The courts have imposed SSM by judicial fiat yet they can’t handle the difficult task of sorting out gerrymandering??

    Why do you want to turn a political process over to the judicial branch? The results where this has been tried should be a warning not to do more of it.

    • #11
    • October 10, 2017, at 8:41 PM PDT
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  12. D.A. Venters Member
    D.A. Venters

    There’s something about this debate that bothers me but I have a hard time putting it into words, though I think it’s related to my point above about parties having to compete for every vote, as well as Sabredance’s point. What bothers me is the assumption that voters are that predictable – that when they cast their vote for congress or their state rep they are following the script dictated by their demographic category. They cannot be persuaded by any appeal to principles, reason, etc…I realize that statistically it can certainly look like that, but I like to think most voters do consider their votes with more care than those statistics lead us to believe, which means a candidate from a minority party always has some chance. This debate seems to take it as a foregone conclusion that the gerrymandering will always work just the way the majority party wants it to.

    • #12
    • October 10, 2017, at 8:47 PM PDT
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  13. Profile Photo Member

    D.A. Venters (View Comment):
    I agree the courts should leave this to the political process (unless some other violation of law or the Constitution occurs).

    Couldn’t you argue that allowing this kind of gerrymandering forces, or at least should force, political parties to try to appeal to voters outside their base – to form different coalitions?

    If the shoe were on the other foot, and Republicans were challenging Democrat gerrymandering, I’m sure we would hear some argument like this from the left: “Well, if Republicans don’t like how the lines are drawn, they should make an effort to broaden their appeal. It’s not our fault they’ve moved so far to the right that they don’t appeal to voters in certain areas anymore. They can’t go crying to the courts to protect them from everyday politics. They should just try to compete for those voters.” So, I think that should be the response to Democrats – if they are upset that no one is voting for them in rural areas, and so it’s easy for Republicans to gerrymander, then they should moderate and try to appeal to those voters. They shouldn’t look to the courts to protect their leftward drift.

    That is exactly right. The liberal plaintiffs in this case would have had a better case if they had challenged Democratic gerrymandering. As it is this strikes me as special pleading based on a well-grounded hope that the courts will be more liberal than the legislature of most of the states.

    • #13
    • October 11, 2017, at 3:34 AM PDT
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  14. Profile Photo Member

    The Reticulator (View Comment):
    Thanks for the link to that article.

    I have long wished that congressional districts and state legislative districts were drawn along lines that gave high priority to honoring county/parish/township and other local governmental boundaries. I never had any illusions that that an algorithm that did that would be the end of the problem, but did not know that the problem had been looked at as thoroughly as described in the article.

    I had a somewhat different response to the article, though I did read it quickly. It seemed to me that they were pointing out that you can’t have an algorithm that produced neutral districts based on county/parish/township and other local governmental boundaries if you also include other demands such as guaranteed racial representation on a state basis. And that the more variables you add to achieve fairness, the more complex and difficult the process becomes. But they never addressed, or if they did I missed it, why an algorithm couldn’t be developed that divided a state into equal districts based as much as possible on existing communities. There’s probably still a fair bit of room for political games around the edges in terms of defining what constitutes a community.

    But, I think this will probably be decided on a 5-4 vote calling it a political issue that is outside the Court’s expertise, mostly because the Court wouldn’t want to see the flood of litigation that would hit them every ten years after each census as parties litigate over the shape of the political map.

    • #14
    • October 11, 2017, at 6:24 AM PDT
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  15. The Reticulator Member
    The Reticulator

    Isaac Smith (View Comment):
    I had a somewhat different response to the article, though I did read it quickly. It seemed to me that they were pointing out that you can’t have an algorithm that produced neutral districts based on county/parish/township and other local governmental boundaries if you also include other demands such as guaranteed racial representation on a state basis. And that the more variables you add to achieve fairness, the more complex and difficult the process becomes. But they never addressed, or if they did I missed it, why an algorithm couldn’t be developed that divided a state into equal districts based as much as possible on existing communities. There’s probably still a fair bit of room for political games around the edges in terms of defining what constitutes a community.

    The article gave very little attention to the issue of existing political boundaries within a state, but did mention them as a factor. From the article I gather that there is no reason why an algorithm couldn’t be developed to give high priority to honoring those boundaries. And I wouldn’t be surprised if such algorithms have already been developed, given the number of people who have devised such algorithms. The problem is that it doesn’t keep it from being a political issue. We still have (or need) a political process to decide on which algorithm, and we still have (or need) a political process by which to accept the results, and we still have (or need) a political process by which to make revisions. That is going to be no less contentious than what we have right now.

    As to deciding which political community boundaries need to be included, you have everything from counties or parishes (something every state has) to municipalities and down to school districts and lake homeowner associations. I’d propose that the boundaries of any district with its own taxing power be included. But there would still be the issue of how you weight those districts, and how you weight other considerations deemed by the courts to be important.

    What we really would need to concentrate on is the political process by which these things are done. No algorithm can substitute for that, which is the point the article made.

    • #15
    • October 11, 2017, at 8:15 AM PDT
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  16. Robert McReynolds Inactive
    Robert McReynolds

    Should concentration of votes not be the price to pay for the Left “owning” concentrated urban areas? Why should Milwaukee and Madison determine the make up of the legislative branch in Wisconsin? Ditto NYC for New York or Chicago for Illinois? I understand the desire for increased democracy–after all, it is the “American way” for the people’s voice to be heard during an election–but how fair is it to grant power to people stacked upon each other like fleas on a stray in a tightly concentrated geographic area?

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    • October 11, 2017, at 9:17 AM PDT
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  17. The Reticulator Member
    The Reticulator

    Robert McReynolds (View Comment):
    but how fair is it to grant power to people stacked upon each other like fleas on a stray in a tightly concentrated geographic area?

    The political processes are what decides how fair that is.

    • #17
    • October 11, 2017, at 9:52 AM PDT
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  18. James Gawron Thatcher
    James Gawron Joined in the first year of Ricochet Ricochet Charter Member

    Robert McReynolds (View Comment):
    Should concentration of votes not be the price to pay for the Left “owning” concentrated urban areas? Why should Milwaukee and Madison determine the make up of the legislative branch in Wisconsin? Ditto NYC for New York or Chicago for Illinois? I understand the desire for increased democracy–after all, it is the “American way” for the people’s voice to be heard during an election–but how fair is it to grant power to people stacked upon each other like fleas on a stray in a tightly concentrated geographic area?

    Robert,

    Funny, if you really believed in the American Constitution and principles upon which it was founded you wouldn’t shy away from this issue. In fact, this is a totally fundamental issue that should be given the greatest concern. Concern that the founders would have given issues. To leave this issue to party hack bureaucrats is a crime in itself.

    I suggest we spend a little less time on figuring out how many imaginary genders there are and a little more time on exactly this kind of issue.

    Regards,

    Jim

    • #18
    • October 11, 2017, at 9:53 AM PDT
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  19. Robert McReynolds Inactive
    Robert McReynolds

    James Gawron (View Comment):

    Robert McReynolds (View Comment):
    Should concentration of votes not be the price to pay for the Left “owning” concentrated urban areas? Why should Milwaukee and Madison determine the make up of the legislative branch in Wisconsin? Ditto NYC for New York or Chicago for Illinois? I understand the desire for increased democracy–after all, it is the “American way” for the people’s voice to be heard during an election–but how fair is it to grant power to people stacked upon each other like fleas on a stray in a tightly concentrated geographic area?

    Robert,

    Funny, if you really believed in the American Constitution and principles upon which it was founded you wouldn’t shy away from this issue. In fact, this is a totally fundamental issue that should be given the greatest concern. Concern that the founders would have given issues. To leave this issue to party hack bureaucrats is a crime in itself.

    I suggest we spend a little less time on figuring out how many imaginary genders there are and a little more time on exactly this kind of issue.

    Regards,

    Jim

    Agreed which is why I see no problem with gerrymandering as district design is the purview of the states.

    • #19
    • October 11, 2017, at 12:43 PM PDT
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  20. The Reticulator Member
    The Reticulator

    Robert McReynolds (View Comment):

    James Gawron (View Comment):

    Robert McReynolds (View Comment):
    Should concentration of votes not be the price to pay for the Left “owning” concentrated urban areas? Why should Milwaukee and Madison determine the make up of the legislative branch in Wisconsin? Ditto NYC for New York or Chicago for Illinois? I understand the desire for increased democracy–after all, it is the “American way” for the people’s voice to be heard during an election–but how fair is it to grant power to people stacked upon each other like fleas on a stray in a tightly concentrated geographic area?

    Robert,

    Funny, if you really believed in the American Constitution and principles upon which it was founded you wouldn’t shy away from this issue. In fact, this is a totally fundamental issue that should be given the greatest concern. Concern that the founders would have given issues. To leave this issue to party hack bureaucrats is a crime in itself.

    I suggest we spend a little less time on figuring out how many imaginary genders there are and a little more time on exactly this kind of issue.

    Regards,

    Jim

    Agreed which is why I see no problem with gerrymandering as district design is the purview of the states.

    Unless you’re a southern state, in which case it’s the purview of the DOJ.

    • #20
    • October 11, 2017, at 1:22 PM PDT
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  21. James Gawron Thatcher
    James Gawron Joined in the first year of Ricochet Ricochet Charter Member

    Gentlemen,

    I’ll try one more time. I worked hard on a congressional campaign for a very conservative Republican. The district was in Democratic hands though it was only rated +5 Democrat. It was a very tough uphill battle as the opponent was very able but we bested him by 3% and took the win.

    The state legislature supposedly controlled by a Republican majority promptly gerrymandered and what had been a +5 Democratic district was now a +17 Democratic district an insurmountable difference. We have listened to nonsense about Russian hacking of the election now for 10 months. The total quantity of Russian influenced social media would be like a teaspoon full compared to the ocean. On top of that most of it was poorly written English and on top of that half of it would have helped Clinton anyway.

    Meanwhile, in every single election in this country gerrymandering is thwarting the will of the people in serious incontestable ways. Yet, there isn’t the slightest inclination to do a thing about it. Sorry, but I’m not buying it. Dr. Epstein, Dr. Yoo, and every other professional legal mind in the country should work just a little harder and develop some guidelines at the very least. We could use the computer programs to identify dangerous cases of gerrymandering going on. At least people would realize what’s at stake and hold those pulling the nonsense accountable.

    Regards,

    Jim

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    • October 11, 2017, at 2:10 PM PDT
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  22. The Reticulator Member
    The Reticulator

    James Gawron (View Comment):
    Meanwhile, in every single election in this country gerrymandering is thwarting the will of the people in serious incontestable ways.

    It’s thwarting the will of some of the people and facilitating the will of others. The ways it is done and the remedies for it are all contestable.

    • #22
    • October 11, 2017, at 2:49 PM PDT
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  23. Guruforhire Member
    Guruforhire

    I believe “competitive” districts are actively designed to unrepresented half the population on any given vote. This isn’t a direct democracy, we are choosing a representative.

    The liberal districts, are properly constructed, and the people there are adequately represented.

    Districts should be of uniform population, with the greatest internal homogeneity so as to ensure that the people are adequately represented.

    Everything else is just politics, and trying to get the courts to change a factions fortunes.

    • #23
    • October 11, 2017, at 7:24 PM PDT
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  24. Zafar Member
    Zafar

    Robert McReynolds (View Comment):
    Should concentration of votes not be the price to pay for the Left “owning” concentrated urban areas? Why should Milwaukee and Madison determine the make up of the legislative branch in Wisconsin? Ditto NYC for New York or Chicago for Illinois? I understand the desire for increased democracy–after all, it is the “American way” for the people’s voice to be heard during an election–but how fair is it to grant power to people stacked upon each other like fleas on a stray in a tightly concentrated geographic area?

    Perhaps vote weight should be reflected in taxation proportion? So while people in urban areas have votes which don’t count as much as people in the country, the upside is that people in cities pay lower tax rates.

    I think that would make everybody happier. No? It’s also an elegant way of addressing the whole taxation/representation thing.

    • #24
    • October 12, 2017, at 1:29 AM PDT
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