Monday, November 3, 2014

A Step Forward to Slay the Gerrymander

By Professor Justin Levitt

In the early days of the Republic, Patrick Henry and James Madison were bitter political opponents. Henry thought that the new Constitution jeopardized states’ rights and individual liberties, and blamed Madison. When Madison sought a seat in the new Congress he had created, Henry sought revenge. He reportedly convinced Virginia’s legislature to draw their very first congressional districts to hurt Madison at the polls.

The burst of partisan pique would feel quite familiar today. For 200 years, American politicians have drawn election district lines to punish their enemies, favor their friends, and lock in their own job security at the voters’ expense. When incumbents gerrymander districts, the public’s partisan preferences are distorted, and communities are carved into electoral bits, to give those in power the best chance of staying in power. We are the only industrialized democracy that permits this conflict of interest.

And New York voters have a rare chance to lead the way out.

Proposal 1 on the November ballot would change the way that New York draws district lines. But more important, it could also change the model for change, across the country.

A handful of states have reclaimed power for the public, legally banning election lines designed to help or hurt specific politicians or political parties. These states are Democratic and Republican: Washington and Idaho, Arizona and California. Florida, of all places, most recently got fed up with incumbent manipulation of the process.

The states above share a common thread. They have a citizens’ initiative process, letting voters bypass the legislature to change the law.

Twenty-five states do not have that luxury. In half of the country, any road to reform the legislature must go through the legislature. It is perhaps unsurprising that the prospects for change there are grim.

This is what makes New York’s Proposal 1 the potential for national inspiration. New York has no means for citizens to make law directly; Proposal 1 arrives via Albany. Indeed, it is on the ballot only because of Gov. Cuomo’s enormous leverage in 2011. He refused to let the legislature draw any district lines at all – terrifying the incumbents – until they changed the process. He is the only governor in recent memory, nationwide, to have held out for such a bargain.

If Proposal 1 passes, the gubernatorial front becomes a model for advocates elsewhere. Suddenly, a new avenue for reforming the political process becomes instantly viable.

And the case against? In our nationally polarized climate, the New York debate involves an unusual consensus. Virtually everyone agrees on the urgent need to change a dysfunctional system. The main objection of those opposed to Proposal 1 is that the amendment does not go far enough.

They have a point. I had also hoped for more.

But passing up the improvement at hand to hold out for magic beans is a big mistake.

The windows for legislative change in this arena are vanishingly rare. It will take seven years before the electoral leverage of 2011 returns, if indeed it returns at all. Nothing stops advocates from trying to convince the next governor to go for the gold standard at the next opportunity.

In the meantime, New Yorkers have a chance to move the ball right now. Proposal 1 gives first crack at the lines to an impartial commission, and demands public hearings to add transparency to the process. It prevents one political party from running roughshod over another. It creates important protections against racial discrimination as a backstop to the federal Voting Rights Act.

Perhaps most important, Proposal 1 specifically prohibits drawing district lines to favor or disfavor particular candidates or parties, and bans the legislature from discouraging competition.

These provisions pull in the courts, providing Albany much-needed adult supervision. When Florida implemented a similar law, judges struck down both congressional and state Senate maps because partisan politics infected too much of the process. Giving this role to the courts gives the amendment some real teeth.

In 1964, the U.S. Supreme Court forced New York to redraw its political map. Since then, incumbents have held the state in a stranglehold. Proposal 1 is by no means perfect. But it may represent the best chance in the last 50 years to reshape this rigged process. And in so doing, it may point the way forward for reform in other states where the legislature is both the biggest obstacle and the only hope.

No comments: