By Any Means Possible


Looking at a map of where the Democrats are in the majority, the fashionable conclusion is that their party is now a regional one, hugging the coasts.  In fact, they’re barely even that.  One-third of all Democratic Congressmen come from just three states – California, New York, and Massachusetts.  So when the party chose Chuck Schumer (NY) and Nancy Pelosi (CA) to lead it in the Senate and House, they were just being true to the current shrunken geography.  They may represent the party’s ideology, but there also just weren’t that many states to choose from.

One state where leftists have been feeling the pinch is Wisconsin, home of the progressive movement.  Democrats have seen their share of the state legislature wither to 13 of 33 Senate seats, and 35 of 99 House seats.

So off they went to court.  In the past, federal courts have generally struck down some forms of gerrymandering designed to dilute voting power based on race.  While the Supreme Court held open the idea that partisan gerrymandering, it had never found a practical yardstick that it approved of, and so the issue lay where it had lain since the beginning of the Republic.

However, in 2016 The Year of the Unprecedented, Democrats have managed to win an unprecedented victory.  A federal court has ordered the state’s legislative lines redrawn.  The court thinks it has found a Judicial Sabrmetric measure that allows it to definitively state that partisan gerrymandering violates freedom of association.  The argument is roughly that votes in excess of what’s needed to win are “wasted” votes.  If the losing side has substantially more wasted votes than the winning side, then it will win disproportionately fewer seats than its vote total suggests that it “should” have.

The logic of the argument escapes me.  Parties are voluntary associations, created for the purpose of attaining elected office.  (Or in the case of Libertarians, for debating certain ideas.)  Nobody is preventing anyone from freely associating, and there is no “right” for a party to be elected to any given office.

Moreover, sometimes, a party simply becomes so weak in a jurisdiction that even with the best districting, there’s simply not way to guarantee it any seats.  For example, in Hawaii’s State Senate, there are currently 25 Democrats and zero Republicans.  None, nada, zilch.   And yet Republican candidates surely received votes.  Should the state be required to draw a district in order to guarantee at least some Republican seats?  Of course not.

But for the moment, at least in Wisconsin, the law is that Republicans aren’t allowed to win by too much.  So let’s look at some of the inputs and implications.

Wisconsin’s Own History

The state has historically leaned left, but has never been as monolithically Democrat as its reputation might have it.  Indeed, back in the 20s – 40s, the Democratic Party there was all but extinct.  As late as 1948, Republicans controlled 27 of 33 State Senate seats, and 92(!) of 100 House seats.

The pendulum started to swing back, and the 1958 elections proved to be a watershed.  Republicans went from a supermajority in the House to a minority, and virtually all of the statewide offices went to Democrats.  Note that this happened with the same districts that, in 1956, had give Republicans 2/3 of the State House.  The party reached its high-water mark in the early 80s, with supermajorities in both the State House and State Senate, but since then – 35 years ago – the state has been swinging back to Republicans.

Naturally, the Democrats blame this weakness on redistricting and gerrymandering, rather than natural party swings and their own misreading of the state’s politics.  Such gerrymandering doesn’t explain Scott Walker winning three statewide elections, a conservative winning a state Supreme Court election, or the election and re-election of Sen. Ron Johnson, but then Democrats have never been one to let logic interfere with a good power-grab.

Gerrymandering is Self-Limiting

There’s a vast literature on drawing legislative districts, but ultimately, a party with control of the process is confronted with two choices – it can either pack its opponents into a few districts, or spread them out.

By packing them in, the majority party is seeking to limit the number of competitive districts, and ensure a smaller, but more durable majority.  Many districts will be uncompetitive, a few will be swing districts.  If the majority is small enough, then it might lose control in a bad year, but will retain control in most years.

By spreading them out, the majority party will be in front in more districts, but those majorities will be smaller.  So in a normal year, they’ll have broader control of the legislature, possibly a supermajority, but they risk losing many districts in a wave year.  That’s what happened to Republicans in the 1958 Wisconsin elections.

Parties who are clinging to small majorities may find that there just aren’t enough districts to go around to try the first option, so they choose the second, writing themselves small majorities in many districts, and counting on the power of incumbency to see them through.

The Democrats have done poorly in the 2014 and 2016 legislative elections in Wisconsin, and their argument is predicated on the idea that they’ll never be able to claw their way back to competitiveness.  But while gerrymandering helps, it can’t overcome long-term secular trends.

For decades, nay generations, Democrats gerrymandered districts to their advantage.  In response, Republicans began a long-term, multi-decade effort to squeeze the Democrats from the bottom-up.  Their in state legislatures are the result of that.   The change from 1980 is stunning, and began in earnest in 1994:

Perverse Outcomes

I mentioned above that there are two broad ways of gerrymandering – write in small but secure legislative majorities, with a few competitive districts, or write in a greater number of competitive districts, with some majority in each.

The ruling would seem to favor the first option over the second.  If the metric is that each party has a proportional number of “extra votes,” a party will have an incentive to make as many districts as lopsided as possible, giving themselves small but secure majorities.  The net result is liable to be less competitive elections, with efforts concentrated in a few districts.  The vast majority of residents would live in uncompetitive districts.

This would seem on the face of it to contradict the ruling’s logic.  While the point of gerrymandering is legislative control, the point of an individual election is the selection of an individual legislator.  The majority party would have an incentive to make sure that in the vast majority of those districts, at least one party never had a reasonable shot at getting elected.  To the degree that gerrymanding contradicts freedom of association (and again, I don’t follow the logic there), this result would compound the problem, not ameliorate it.

Consequences for Open Primaries

The court is agreeing with the plaintiffs’ argument that unfair district lines are an attack on freedom of association.  So be it.

Colorado just passed a law imposing a presidential primary, and another law requiring that unaffiliated voters be allowed to vote in one party’s primary.  How then are state laws that determine how parties’ nominees are chosen not such an infringement?  If a party chooses to have a primary, or a caucus, or an open primary, why is that not the party’s business?  If this ruling stands, it’s almost impossible to see how an inherently political process that affects a party’s ability to win can be an infringement on free association, while a state diktat on how a party chooses its nominees isn’t.

Too Bad – Go Win

Democrats are (or were, in 2009) fond saying that elections have consequences.  Unless they’re won by Republicans, especially in years ending in 0.  At one level, they’re right to be concerned.  The Democrats find themselves where the Republicans were for a long time – a regional party, and a minority party at every level, with only the White House in grasp.

They’ve never been shy about using judicial and administrative tools to achieve policy ends, but at this point, those are the only tools in the toolbag.  The public has soundly rejected the social activism and, to a lesser extent, the regulatory manipulation that is the Democrats’ current stock in trade.  Should it continue to see its desires frustrated, things could get even uglier for the Democrats and for the country.

And electorally, the Republicans have been squeezing out the Democrats’ bench for decades now.  Not only are Pelosi and Schumer bicoastal, they’re old.  The only areas outside of the coasts producing new Democratic talent are the cities, which have been trending blue for a while.  If the Democrats have to rebuild everywhere else, the Republicans may have a very difficult time rebuilding there.  Count on them to try, though.

Rebuilding the party isn’t the work of one cycle, or of winning the White House, no matter how dangerously concentrated power has become.  The last two Democratic presidents have been terrible for the party.

If Democrats want to win again, they need to figure out how to win, not look to the courts to save them from their own disconnect from the people whose votes they’re trying to earn.