Ending Gerrymandering

Gerrymandering is wrong. This year, SCOTUS, decided to chicken out on dealing with the problem. They acknowledge that Gerrymandering is bad politics, unjust politics and a terrible thing. But they tell society they can't fix it. Justice Kagan wrote a powerful dissent on the subject:

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” [SCOTUS]

If a problem is beyond judicial solution, that indicates bad design.

“And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.” [SCOTUS]

Gerrymandering is also corruption.

“These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences.” [SCOTUS]

Real Issue

And they are right. The real issue with redistricting and gerrymandering is that it reflect a poorly constituted system of Government. We have gerrymandered States. Giant states with tiny populations, tiny states with giant or tiny populations, and each of them has two Senators and at least one representative. The fact that states further compound this design problem by drawing abusive political lines is at least partly a symptom of bad constitution as much as it is unconstitutional behavior.

The Courts Can Mitigate

Kagan noted that the courts could and should moderate Gerrymandering according to basic principles. She writes:

“checking them is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority’s own benchmarks. They do not require—indeed, they do not permit—courts to rely on their own ideas of electoral fairness, whether proportional representation or any other. And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process. But yes, the standards used here do allow—as well they should—judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms. In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.” [SCOTUS]

It is also my opinion that elections should be managed by election courts, subordinate to ordinary courts if there are disputes.

Antiquated Constitution

Everyone acknowledges our system is antiquated. Unfortunately, most of the energy on changing our constitution comes from people who think the problem is that we have too much democracy in our Federal Republic and not that we don't have enough. The result is that I find myself resisting a constitutional convention, even though we need one. This is because our system has many wonderful features and works well enough on most issues. But much of where it works well for the general population reflects kludges opposed by a tiny minority of extremely wealthy and powerful people.

This Post is also a follow on to Gerrymandering in Redistricting is Bad Constitution. I have suggestions for fixing our electoral system. It starts with making a distinction based on land area and population. Texas is slightly less than a million square kilometers in size. California is nearly half a million square kilometers. Rhode Island is only a little more than 3000 square Kilometers. In terms of population, the disparities are equally nuts. The founders tried to resolve this by giving large and small states 2 Senators and making the representation in the house based on population with each state having a minimum of one representative. The result is a gerrymandered schema at the national level before any census sets the particulars.

Gerrymandering as Bad Constitution

Our charter was optimized for Thirteen Colonies, for a narrow elite of wealthy white males and for a relatively small population. The fact that our system still favors a minority of privileged wealthy white males is not surprising. Gerrymandering is a symptom of an antiquated system. It needs fundamental reform. What blocks that reform is that it serves the interests of privileged special interests.

The Schema of the Federal And State Government

When Alexander Hamilton and James Madison helped lay out the Constitution, they argued to the public that the schema for the United States was to borrow on the kind of relationship between States and Counties. (Federalist 1!) The Federal Government was to have the same sort of relationship to the States that their states would have to their own counties and municipalities. Ultimately the system was intended to be a union of many parts working in collaboration.

But they were afraid to muck with the organization of the Union. They were afraid that if they'd used subdivision schema that would have led to separate countries:

“we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.” (Federalist 1!)

Had they divided the country into territories and regions to replace the States, they:

• Knew that the States would oppose outside interference in their own powers.
• Small States did not want to be subject to the power of neighbors.
• Large States had claims on and imperial ambitions beyond their 1775 borders.

When the USA acquired the Ohio Territory, they adjudicated the multiple claims by making Ohio a Territory and eventually letting Kentucky (claimed by Virginia) and Tennessee (claimed by North Carolina) become new states. Reorganizing our system doesn't seem to have occurred to them except among folks seeking to carve out new countries. Same with Louisiana. Territorial governments were established by the Federal Government, and instead of being administered as intermediate between the Federal Governments and the smaller states, they were treated as colonies until taken in as states. Eventually, as the country became bigger and bigger, states were acquired that were never going to become new states; the Philippines, the whole country of mexico!, Puerto Rico and Cuba. Puerto Rico may yet become a state, but the Colonial Schema, while occurring naturally to people who were themselves colonies previously, is unjust, and still is unjust.

Further Discussion

Thus the two principles meant to be embodied were those of:

• Distributive allocations of responsibilities and revenues
• Collaboration and appropriate subdivision

Adjudicating Rivalries through the principles of Subsidiarity

Of course the States were too rivalrous, as discussed above, for this to work as intended. The North and South were jealous of each other. The Delegates were ambitious. The ones from the East were interested in developing the country, but also in acquiring wealth from that development. They tossed out Franklin's ideas from years earlier about money and banking and wanted a National Bank. This was partly because they had had bad experiences with the Continental paper currency during the Articles of Confederation. The Southern leaders were rightly suspicious of a National Bank, founded on a privateering charter, because it was obvious that the Northerners intended to found it on the Bank of England, privateering Model. That is for another post. But they were right to fear a bank modeled on the Bank of England.

Election Schema

But they also faced the issue of large states and small states, large populations and small populations. The States in the North were large and small but all the states had relatively large populations. The states in the south were largely large sized with small populations. And they had rival claims to vast swaths of land to their west. They didn't adjudicate this matter well. The solution they came up with was a kludge. With a house of representatives that gave at least one representative to every state but apportioned delegates by population otherwise. They gave Southern Slave owners the right to vote an equivalent of 2/3 of their slaves numbers, and they gave each state, regardless of its population two delegates. This didn't satisfy anyone but it gave each of the 13 states sufficient representation to keep them together. The idea of a parliament with general suffrage was novel. It was opposed by many in the upper classes. They believed that only person with property should have the right to vote. They faced populations that would have tarred and feathered them if they didn't get a vote, so for its time this was very progressive.

Too Big

The real problem was that 13 colonies were huge. And as the country expanded we didn't constitutionalize the issues but dealt with them through administrative structures. Virginia was eventually divided, first into Kentucky and Virginia, and later further divided with West Virginia breaking off. North Carolina gave us Tennessee. When we got to Texas, instead of getting 5 states of manageable size, we got a country sized state. Alaska and California also divide into geographic countries. These huge territories have 2 Senators and dozens of representatives. Alaska has 2 Senators and one representative. It's population is so small. Geography is not addressed by our constitution very well.

Reorganization

In a rationally constituted Republic, political lines reflect geography, which reflects population location, interconnections, natural and man made property lines. People belong to collective entities such as towns, neighborhoods and the like. A rational subdivision schema ensures that the people of those areas of self identity are represented in government. In the case of large scale general government a politician may represent more than one local area. When that is the case there should be intermediate general representation to represent the common interests of multiple jurisdictions.

Territories

So the long term fix for our system is a bit of reorganization. The constitution pretty much rejected subdividing States without everyone's permission. But it makes no sense for our country to have one size fits all administration when we have integrated networked connections. The Mississippi River Region stretches from West Virginia and the Ohio River to the Missouri River Valley and Colorado. It is fully 2/3 or so of the country's area in extent. And it ought to have a governing body that represents all people impacted by the Mississippi River.

Collaborative Executive

On an administrative level we probably should have Governors at levels. Essentially a Mayor or a County Executive is a Governor. So is the Governor of a State. But then we go straight to President. We were afraid to divide the country into permanent territories and that has led us to have colonies like Puerto Rico that are territorial possessions of the United States, but have no vote. It also made it impossible for us to confederate with our neighbors, which would have been the optimal way to adjudicate border issues and have an integrated and fully functional economic system on a vast scale. One change I'd recommend would be to subdivide recursively. The Ohio Territory should have been a constitutional change. A territory should not be smaller than 10,000 square miles. But states should be part of territories by geography and population. The Governors of Territories should be elected and have representation in executive decision making. General Governments should have round tables of governors of their subdivisions by population and function and these should meet to develop and hash out policy and regulation. Territories should have their own Senate and house and a say in the national government. This is a suggestion. I know it probably won't fly. But a strong suggestion is that we have collaborative executives subject to oversight by an elective legislature at each level of government. Regulations should be done in collaboration with elected representatives. We liberals don't always like that idea, but it would be a tool for getting consensus. One problem we have is too much administrative law and not enough legislative oversight.

Gerrymandering.

democratic subsidiarity,

separation of power into collaborative general actions and those of subdivisions;

ultimately reserving appropriate power to the most local subdivision.

Appropriate subdivision of the country into divisions and subdivisions, for optimizing land and population management.

Representation

Appropriate representation of the resulting subdivisions,

One person one vote principle,

Doing Violence to the Schema of Appropriate Subdivision

Gerrymandering does violence to the principle of "appropriate subdivision" by ignoring the principles of "appropriate subdivision" in drawing election districts. That this isn't a trivial issue is illustrated by simply looking at the worst of the resulting gerrymandered districts. Gerrymandering reflects population size at the expense of ignoring geography. The Drawers of gerrymandered district are looking at how people vote and choosing to maximize the vote for their favored candidates.

Thus Gerrymandering doesn't merely reflect cheating. It reflects unjust and arbitrary government that infringes on principles of:

• Majority Rule
• one person one vote;
• Local self rule;
• Local representation.

All this could be ruled unconstitutional were they spelled out in the constitution. But gerrymandering reflects a constitution that spells out dividing states into districts based the same schema as the electoral college. Thus they are bad constitution and only by kludgy legislation or interpretation of other parts of the constitution "unconstitutional. To provide a permanent fix would take an amendment to the constitution.

Infringing on the Majority

Gerrymandering infringes on principles of "majority rule." It is necessary to a functional Republic that all persons be represented. That implies majority rule and/or majority approval. Actual majorities are threshold states for achieving full consensus. Even Birds mentally calculate majority direction when deciding where they will fly as a flock. Minority rule blocks such consensus. Gerrymandering blocks majority rule. It leads to conflict because people (and animals) instinctively know when there is unfairness. Majority rule has its weaknesses, but minority rule is intrinsically unfair.

I discuss this in the context of the Federalist Papers:

http://holtesthoughts.blogspot.com/2015/01/demos-in-federalist-papers.html

The Right Wing, in True Totalitarian Manner equates Majority Rule with "Collectivism". That is one reason their ideology is anti-democratic and dysfunctional. For more see:

http://holtesthoughts.blogspot.com/2012/07/attacking-democracy-itself.html

Infringing on One Person One Vote

Gerrymandering effectively denies one person one vote principles by paying lip service to them in dividing up lines. District lines that ignore population principles infringe on the voices of those so relegated to weaker representation.

The Principle of one person one vote is enshrined in the principles of our founding. It is the second fundamental principle, that must be in balance with the principle of majority rule. That is the right of every person to 'his' (or her) 'own person' [Thomas Jefferson]. To be truly free one must have power over one's own life. Each person under natures law has what Locke Called a right to "a state of liberty." The principle of one person one vote is meant to adjudicate arguments over whether smaller (and likely weaker) states should have disproportionate power to larger and more populous states by allocating by population. Balancing that principle has to be the principle of self rule for localities.

http://holtesthoughts.blogspot.com/2015/01/demos-in-federalist-papers.html

http://holtesthoughts.blogspot.com/2012/08/john-locke-on-virtues-of-liberty.html

Infringing on Local Self Rule

Gerrymandering takes part of the population of one town or county an lumps it with people from other townships in order to strengthen or weaken the votes of those so infringed. The principle of one person one vote is used as an excuse to deny representation to people in unfavored jurisdictions.

Gerrymandering thus subverts principles of local self rule and subsidiarity. In States like Michigan this is exacerbated by other constitutional flaws that give excessive power to State Government. It is also subverted because without representation there is no way to protect local rights of self rule.

This country barely protects the rights to self rule of Cities and Incorporated Towns. But neighborhoods? Forget about it. Theoreticians like to talk about "Statism" with reference to the Federal Government, but States and Counties are also central Government. Even Towns and cities are General Government. We don't do self rule at the neighborhood well in this country except in some parts of New England. Gerrymandering happens because of this as well as aggravating it.

Infringing on Subdivision Representation

Principles of Federation infringed

The USA is a Federated Republic as a nation. A Federation is an association of subdivisions representing equality of the members in common defense and common-wealth. A well constituted Federation has levels of government that allow people to work in concert, focused on common areas of importance. Each in turn subdivided according to a rational schema that maximized the authorities, powers and effectiveness of each level of Government. That is the influence of principle in action, simply good strategy.

Gerrymandering insults those principles. The whole purpose of it is to subvert just allocation of power between the subdivisions and factions of a Federation.

Geography and History

This design is demanded by our geography and history. Good principles can be applied to constitute equitable, functional and safe Federations. History often complicates such design. Our system makes it difficult to change that constitution. That is partly the reason our system has so many points of bad design. Our current system is completely understandable historically. But that historical design is bad design. The electoral College, our representation system, the way we allocate delegates, all reflect poor design that infringes on the rights and welfare of people in this country.

The thing about principles of Federalism, republicanism and common-wealth, is that infringing any of them, in an unwise effort to use one principle to subvert another, infringes and subverts all of them ultimately. Local jurisdictions deserve representation as localities. In our system they get it at state level (sometimes) via State Senates. But at the National Level the house of representatives only represents local subdivisions if they have a large population.

The Right wing in this country love to treat the constitution as a biblical document. Yet even they, when the mood is upon them want to change it. They would do it through a Constitutional Convention because the current design can run over people in more populous states. In the meantime they use those weaknesses to design gerrymandered districts and use other tricks to keep power.

A well constituted Federation versus "history"

But history always complicates the design. Republics don't always embody principles of equality but the power relations of the people in their domain. The fact that we have States with all sizes of population and geography with influence far out of proportion to numbers reflects History. And Bad design.

Watershed example,

For example, simply on principles of good government design; A nation should be divided into watersheds and those governed according to agreed principles for sharing the water. Large unwieldy watersheds should in turn be divided into subdivisions allowing Governing authorities to divide the labor of managing the overall watershed by focusing on their portion of it. This can be recursive down to towns, villages and neighborhoods. This is a good idea because there is a level of government that has to adjudicate the claims of different users of the water falling in that Watershed. That would be general government. But there should also be subdivisions executing judgment over basins within that watershed. And those living in any part of that watershed should have a say in the government of their water supplies. Thus a well constituted Federation has a hierarchy of general government with different roles and applies principles of separation of powers and allocation of jurisdiction within them.

Subsidiarity

The principle of subsidiarity suggests that the level of government which holds sufficient information to make best decisions should hold sway on local matters under general supervision.

A well managed Government would exercise principles of concerted action and delegation of authority down to the lowest level where knowledge of what is going on specifically is complete. It also has to consider the "big picture", which is usually only visible to general government. With the watershed example, a locality can best engineer and manage local water supplies. But a general government is necessary to direct for long term water availability as well as disaster preparation, mitigation and avoidance.

General Republican Principles local Democracy

A Federation may embody republican & commonwealth principles at all levels. But only at the most local level can there be anything approaching direct government or direct democracy. Orders that ignore local issues are usually both dysfunctional and oppressive. This is the principle of Subsidiarity. Democratic Subsidiarity would provide a voice for all the people and executive power, at each neighborhood or local government level.

Republican Principles = Effective Representation

All levels of government should provide for effective representation of the people within their subdivision. Governments must have to provide a means to effective representation in order for voices to be heard. If there is no means to gather information from locals and get their consent on decision making that violates the basic principles of Republican Government. A government that operates with the advice and consent of all the people has democratic & representative attributes.

Representation should have a broad component that allocates representatives according to one person one vote principles, with every community represented. Where having every community represented is impossible directly, every community should be represented in subdivisions of the Federal Government.

Evils of Oligarchy

One that represents only some of the people has oligarchic ones. A mix of both is difficult to avoid but without the consent of governed decisions are made in an arbitrary, self benefiting way for "private, separate gain" and that is suboptimal or even destructive. Leaders love to delude themselves that they are all wise. But when they use resources recklessly and solely for their own gain they waste those resources or even destroy them. Oligarchy is destructive, oppressive, and tyranny. All representation at Federated levels should be of both individual voices broadly and also of the subdivisions. Representation locally should be of all persons living (or working) in that locality. Information must flow up and down a hierarchy of bottom up representation & interim decision making and top down final decision making. It can't do that without democratic attributes. Spies and bureaucrats become bottlenecks for good information. Officers with unchecked authority make irrational decisions. These are principles developed both in industry and effective Government. Only the ego and greed of dishonest and ambitious leaders prevents us from having good government. But that ego and greed is enabled by bad design. "Bad Constitution."

Violating Basic principles

The USA Schema violates those principles, and that has been a growing source of friction since the founding.

Archaic Boundaries

The USA is divided into Big states and little states, both for population and for land. These subdivisions are archaic. They imperfectly represent these Federation principles. When we were thirteen colonies this subdivision was intended to give the original members an equal say through the Senate in governing the country as a whole. But the subdivisions are basically archaic now. They've been archaic since the beginning but they started being absurd with the Louisiana Purchase. We had territories and those were denied representation until parts were broken off into States. The territorial divisions often represented land claims from the British Empire that led to absurdly large and unwieldy states that could not be managed from their capitals. Kentucky, West Virginia, were both claimed by Virginia. North Carolina claimed all of what is now Tennessee. Pennsylvania and Maryland, Virginia and other states almost went to war over land claims that represented an absurd schema. The principle of one man one vote was denied by this schema from the beginning, and not just for Indians and black people.

• States with small populations have disproportionate representation in national government.
• Watersheds are arbitrarily divided and managed with upstream communities allowed to flush poisons and waste to downstream communities and states.

But locally we are communities. If we have democracy at all, it has to reflect at the community level. If it doesn't reflect at the local level it fails at the national level. Every level of government except the local level is general government. General Government has to reflect Republican principles. It cannot be direct democracy in any way because to involve everyone in governance is unwieldy and violates principles of specialization that give us a best solution.

Sources and Further Reading

https://www.aclu.org/blog/voting-rights/fighting-voter-suppression/kris-kobach-pushes-voter-fraud-lies-while-meeting

https://slate.com/news-and-politics/2019/06/kagan-dissent-partisan-gerrymandering-rucho-common-cause.html

Notes

I had to scope this post down as I could ramble on this subject for a few thousand words. This post was started sometime before 4/18/2018. I also decided to post this today (July 13, 2019) because, while it needs further work, I wanted to include references to Elena Kagan's dissent and the rest I can come back to later.