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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Presidential Gerrymandering: The Problem and the Meta-Problem
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Thursday, September 15, 2011
Presidential Gerrymandering: The Problem and the Meta-Problem
Joseph Fishkin
Following up on Gerard’s post, I agree that there is nothing wrong with states changing the way they allocate their electoral votes in presidential elections. But the problem of partisans switching the rules around for short-term political reasons is only the beginning of what is problematic about the plan now being floated in Pennsylvania to allocate electoral votes by Congressional district.
Comments:
Now that we have the technological capability to figure out "the sentiment of the whole people of the United States" there is no reason - behind the veil of ignorance - not to do so.
Not only is this troubling because it will make electoral college reform more difficult, but this observation should really cause us to question the very existence of a Presidentialist system. If we're so partisan that it is impossible for one person to represent all the people, as seems likely for the (foreseeable) future, then perhaps it's time to reform our system to reflect that. Of course, this idea won't get much farther than a comment on a blog, but oh well.
Incidentally, on a practical note, I do think you're right that it makes electoral college reform more difficult, but normatively, I think it immensely strengthens the case for the National Popular Vote Compact (which I've supported anyway for a long time).
I see the Pennsylvania Republicans' suggestion as a sort of quantum theory, or aliquot postulate. If the net effect of the innovation PA Reppublicans are promoting would follow in the spirit of Reynolds' principle of 1-person, 1-vote; I would support it. However, as a commenter in the prior thread illustrated, the quantized tranches only engage in some of the most egregious offenses against the Reynolds standard, the sort which Scotus has dispatched with disdain since Reynolds was argued in the zenith of the early modern civil rights litigation era, 1964. The PA ploy is a partisan move to dilute Democratic party registration advantage.
I suppose that there is a way of viewing our government structure as a democratically ratified system of oligarchy, although the founding documents self-consciously circumvent addressing that fundamental verity. During the Lulac v Perry cases which were brought to court following the 2000 TX gerrymander, I examined US Census bureau family income data for some of the most disputed redistricting boundaries. Even at the pecuniary stratum it was perhaps revealing that the households in many geographic areas which were contested harbored average median incomes of ~15k/year. Those are the chips in the gerrymander game, places where the poor dwell. Unemployment statistics like those discussed in reports just prior to labor day last week, painted a cheery image of average family incomes all over the US hovering in the $40,000.'s-$50,000.s. On the ground where the gerrymander boundaries artwork is drawn, the realities are much more stark. I wonder, as a hypothetical, how the modern Democratic Party would fare in elections if, as in Jefferson's day, titled landholders were the only voters permitted to have a voter ID and vote. Or, taking the comparison beyond fair limits, whether only mortgage banking entities who hold homes' titles would be permitted to cast a vote in lieu of the nominal owner of property, given modern corporations' ascendancy in many legal spheres.
Joey:
Today, presidential races conducted only in “swing” states are narrow and exclusive enough. Presidential races conducted only in the even narrower confines of “swing” Congressional districts would be even worse, particularly in races like 2012 that immediately follow a redistricting cycle, when Congressional districts are as gerrymandered as they will be for a decade. Presidential campaigns have been conducted in swing localities within states since politicians could identify swing voters. Those localities are where the statewide races are decided. Moving from a first past the post system to a congressional district system of allocating EVs in a state with gerrymandered districts may actually expand the number of swing localities in which a candidate must campaign. Gerrymandering is drawing districts where the favored party has a narrow lead in many districts, while the opposition is herded into a few districts where they have heavy majorities. The tradeoff with gerrymandering is that, the more districts in which the favored party attempts to create a partisan lead, the narrower that lead becomes as the voters for the favored party become increasingly diluted. The reports of the proposed PA GOP redistricting maps suggest that the GOP is getting very aggressive and trying to create a 2:1 district advantage for themselves. This suggests that the advantage in those districts is narrow indeed the GOP may in fact be creating a series of GOP leaning swing districts. Thus, the combination of the GOP gerrymander and their plan to allocate EVs by congressional district may in fact expand the number of swing localities i which the presidential candidates will campaign.
What would have been the electoral vote result in 2000, if one electoral vote was allocated to the winner of each Congressional district, with two votes to the winner of each state (Florida's 2votes to Bush)?
Isn't this a bit naive? There is a significant conservative plurality in the US who believe presidential elections often don't produce legitimate office holders and have zero problem using every possible means necessary to overcome that perceived flaw by any means necessary.
These people are obsessed with the meta-problem of future of The Nation. Anything less than an all powerful American nation is the only thing that matters and gerrymandering or any of the dozens of well worn tactics to suppress the vote are not a meta problem but simply a tactic to correct the meta problem they perceive which is an existential problem for The Nation and for some for all people of the world, under God. You know Chris Matthews the erstwhile Democrat, or what passes for such now said before the 2000 election, "Al Gore, knowing him as we do, may have no problem taking the presidential oath after losing the popular vote to George W. Bush." http://www.jewishworldreview.com/cols/matthews110700.asp I don't suppose you recall him wringing his hands over Bush's subsequent legitimacy? Of course not. Any Republican is by definition legitimate.
Politicians forget that politics is a pendulum. The PA plan will help the republicans... and if it does the Dems will try it too.
If this keeps up, opponents of the electoral college will get their wish since if electoral college results are doled out proportional to congressional representation, rather than statewide winner-take-all, we will have a system that will effectively also be proportional to the popular vote. Sure, states might switch back and forth, but the political stars have to be aligned to get legislation signed as both the state house, senate, and governor have to be united. And once proportional representation is instituted, who is going to disenfranchise those districts to switch back to winner take all?
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