Nicholas Stephanopoulos: Why Does Gerrymandering Matter So Much?

Understanding the impact of partisan gerrymandering: who is doing it, and why, and what might be done to stop it

 

 

Why Does Gerrymandering Matter So Much? Nicholas Stephanopoulos, a political scientist and legal scholar whose research focuses on gerrymandering, explains its effect on American democracy and how it might be stopped. Topics include recent state laws that limit voting, the voting-rights bills being debated in Congress, and the current state of “alignment” between voters’ wishes and government actions. 

A note to our listeners: this episode was recorded on September 30, 2021. 

  

A transcript from the interview (the following was prepared by a machine algorithm, and may not perfectly reflect the audio file of the interview):

Lydialyle Gibson: Right now, states and municipalities across the country are in the process of redrawing their district maps after the 2020 census, with political parties vying for electoral advantage wherever they can. In recent years, an issue of rising concern and national conversation and lawsuits and voter initiatives has been political gerrymandering. In a democracy, why does gerrymandering matter so much and what can be done to stop it? Welcome to Ask a Harvard Professor. I'm Lydialyle Gibson, and I'm here today with Nicholas Stephanopoulos, the Kirkland and Ellis Professor of Law and a specialist in election law. He has focused much of his research on political gerrymandering. In 2015, Professor Stephanopoulos developed a quantitative method for measuring partisan bias in districting that became the basis of lawsuits against gerrymandering in North Carolina and Wisconsin. Stephanopoulos helped litigate those cases all the way to the Supreme Court. And in a landmark 2019 ruling, the Supreme Court decided that although extreme partisan gerrymandering is unconstitutional, it is nevertheless a question beyond the reach of federal courts. Today, we'll ask Professor Stephanopoulos about the current state of gerrymandering, the likely effects it will have, and what can be done to stop it. We'll also talk about how gerrymandering intersects with a broader range of electoral issues, like recent state laws limiting voting, efforts in election subversion, and the Voting Rights bill now before Congress. Welcome, Professor Stephanopoulos.

Nicholas Stephanopoulos: Thank you very much for having me. It's really a pleasure to be here.

Lydialyle Gibson: So political gerrymandering has been around almost since the beginning of the country. So I guess the first question to ask is, what is it? And why is it such a problem?

Nicholas Stephanopoulos: Sure. So it's absolutely the case that we've had partisan gerrymandering for a long, long time in America, and in other countries, also, that use single member districts to elect their legislators. And I think the definition is, is pretty familiar to most people, you know, so drawing district boundaries, with the intent of advantaging the line drawing party and disadvantaging the opposing party. You know, we can quibble over whether it's the intent behind a map that's the essence of gerrymandering, or whether it's the actual impact of the map that's at the heart of the concept. But we can all agree that it's drawing a map, so that one side benefits and the other side is disadvantaged. And why is it such a big deal? Because it massively affects power in legislatures, you take the same votes, you take the same electorate. And depending on how the lines are drawn, you might have a competitive legislature, you might have a Democratic legislature, you might have a Republican legislature. So you're the power of gerrymandering is to change the composition of the legislature dramatically, and thereby to change the laws and the policies that the legislature is actually enacting.

Lydialyle Gibson: Okay. And I mentioned the measure that you came up with in 2015 for partisan bias, what you call the efficiency gap. Can you tell us a little bit about what that is and how it works?

Nicholas Stephanopoulos: Yeah, sure, so the term efficiency gap is meant to refer to a difference in how efficiently the two parties are each converting their statewide votes into statewide seats. So if one party is a lot more efficient, at translating its votes into seats, there's an efficiency gap in favor of that party. So the underlying insight, I guess, that the efficiency gap is based on is that all partisan gerrymandering operates through the twin techniques of cracking and packing the opposing sides' voters. So cracking refers to dispersing the other side's voters among a relatively large number of districts, where those voters' preferred candidates will reliably lose by relatively narrow margins. Packing refers to over concentrating the other side's voters. So their preferred candidates win but by enormous inefficient margins. So both cracking and packing produce wasted votes, votes that aren't essential to the victory of the candidate who prevails in a district. In the case of cracking, all the votes for the losing candidate are wasted. In the case of packing, all the votes for the winning candidate, above the 50% threshold that's needed for victory are also wasted. So the efficiency gap is just one side's total wasted votes across all of the districts in a map minus the other side's total wasted votes, divided by the number of votes that are cast. And so it captures in a single number, which party is the net beneficiary or the net victim of all of the cracking and packing choices that go into a district map?

Lydialyle Gibson: Okay. Okay. So the current situation this year, you and I talked a couple of months ago, and you said at that time that you thought we were about to see, quote, some of the most aggressive gerrymanders in American history. What makes you say that? And who is doing the gerrymandering this time around? And why is it more aggressive than after the last census in 2010?

Nicholas Stephanopoulos: Yeah, great. So the net effect might not be more aggressive or worse than in 2010. 2010 was a nadir of gerrymandering in modern American history, we had more one sided, more durable, more aggressive gerrymandering than ever before. I think this cycle will see equally aggressive gerrymandering in some states. But I think the overall national playing field might not be as tilted as it was in the 2010 cycle. So who's doing the gerrymandering now? Basically, whichever party happens to be in full control of a state, That's republicans in more states than democrats, so including some major states, like Georgia, Texas, Florida, North Carolina, but democrats are gonna be the ones doing the gerrymandering in places like Illinois, or Maryland, or my home of Massachusetts, or New York. So it's certainly not going to be a one-sided phenomenon. As to why it's going to be more aggressive where it can be pulled off, there are a couple reasons. One is the Supreme Court case that you referred to at the beginning of our conversation. So in the past, there was always at least the possibility of federal court intervention to strike down the gerrymanders. There was at least some reason for gerrymanders not to be as aggressive as they could be out of a fear that if they were so aggressive, that their mat might be invalidated. Now, that fear is completely gone, there is no possibility of federal, judicial intervention, to stop gerrymandering. So I think that's one prompt for more aggressive gerrymandering. A second one is that technology has gotten better, you know, you can now instruct an algorithm to spit out thousands and millions of maps with whatever criteria you want. And of course, those criteria could include partisan advantage for your side. So that technology is new for this cycle, the algorithmic mass production of district maps. And a final factor is just that voter behavior is more predictable now than it was 30, 40 years ago. There used to be a lot of voters who genuinely would swing from one party to another over the course of a decade. And so large proportions of swing voters can negate a lot of gerrymandering, or even make it counterproductive sometimes. These days, there are fewer swing voters, there are smaller shifts from election to election. And so if a gerrymander designs a map, at the beginning of the decade, the gerrymander can have more confidence that the map is going to remain tilted in the same direction for the entire decade long lifespan of the map.

Lydialyle Gibson: Ok. So it can be done more precisely in every way now.

Nicholas Stephanopoulos: Yeah, exactly. No fear of legal liability, more technology at the disposal of the line drawers, and more sticky, more predictable voters as well.

Lydialyle Gibson: Okay, so some states are deep in the process already of redrawing their maps, what have you seen so far?

Nicholas Stephanopoulos: I think it's basically played out as I expected. So in states where a single party is in control, we've seen aggressive maps. And so this includes Republican states like Ohio, or Georgia, or Texas, where they've proposed—although they haven't yet finalized—some pretty aggressive republican gerrymanders. I guess one somewhat surprising thing is that the Republican maps so far have been about equally skewed as their predecessors in the 2010s. They haven't tried to go an additional step beyond that. So you know, the new proposed Texas map is about as biased as the 2010s map. The new Georgia map is about as biased as the old map, maybe a little bit more republican, but it's not leaps and bounds beyond. So it kind of tells me that Republicans think they were already close to their ceiling in terms of seats won in these places. And so their goal is sort of maintaining and reinforcing existing gerrymanders, as opposed to trying to ratchet up the level of gerrymandering by another notch or two.

Lydialyle Gibson: Okay. Okay.

Nicholas Stephanopoulos: And also note, the process has barely begun. Only two or three states have finalized their maps. The vast majority of states haven't released any drafts yet. So we're still really early and it's hard to draw any firm conclusions yet about the cycle.

Lydialyle Gibson: Okay. Okay, what things can be done to stop gerrymandering? I mean, like you said the 2019 rulings and Supreme Court sort of closes off the the federal court system is an avenue for reform. So what kinds of mechanisms are still available?

Nicholas Stephanopoulos: Yeah, so state courts can do the exact thing that the Supreme Court was, you know, insufficiently courageous or overly partisan and didn't want to do. And there have been a couple of examples in recent years of state courts in Florida, North Carolina, Pennsylvania, invoking the state constitution, instead of the federal constitution, and striking down district maps as gerrymanders. So you know, precisely the thing the Supreme Court refused to do, can be done and has been done within state courts instead. Another option is direct democracy. So a whole bunch of states, maybe 10 or more, have adopted independent redistricting commissions, typically through voter initiatives. So you know, unsurprisingly, the people doing the gerrymandering in states are extremely reluctant to abandon that line drawing power. And so often, the only way to get reform is to circumvent the politicians, which can be done in a number of states through voter initiatives. And so in California, in Arizona, in Florida, in Michigan, in Colorado and elsewhere, voters have proposed and then enacted independent redistricting commissions, which I think is a really good, you know, elegant structural solution to the problem of gerrymandering. At the federal level, the US House has now passed two different bills that would revolutionize congressional redistricting. They would do two things: they would require states to use commissions for congressional redistricting. And they would include an explicit partisan fairness requirement that specifies numerical thresholds in terms of the efficiency gap and other similar measures and tells commissions, you know, you have to consider partisan data in order to make sure that you're not accidentally stumbling into a map that scores above certain levels in terms of these metrics. So you know, I'm no political expert, I have no idea what's going to happen to these bills in the senate, they certainly haven't been passed yet by the senate; you would require a filibuster reform to enact them. So, but even if nothing happens, now, I think it's still a pretty dramatic moment where the US House, you know, a whole chamber of Congress, is willing to enact really sweeping, really powerful anti-gerrymandering reform.

Lydialyle Gibson: Okay. Okay. This is a question not on my list, but I'm wondering, thinking about those voter initiatives—it seems like in some states, the legislature has tried to find loopholes to keep from enacting those voter initiatives that were passed. What do you think of those efforts? Do you think that those will hold up? Or do you think that the voter initiatives will, you know, succeed in the end?

Nicholas Stephanopoulos: Yeah, so interesting. A lot of the legislators that are fighting the voter initiatives are gerrymandered legislatures. And, of course, they're fighting voter initiatives, because voter initiatives actually reflect the popular will, in a way that the legislators don't. You know, the legislatures bias and distort the popular will, whereas the voter initiatives are an accurate reading of what the public wants in the state. So, of course, the legislators are resisting the voice of the people in those places. So a lot depends on what kind of initiative we're talking about. If we're talking about a statutory initiative that merely results in a state law being passed, then often the legislature can ignore that law or amend it or rescind it or, you know, do something to thwart it. The more powerful initiatives, though, are constitutional initiatives. So when they're enacted, they directly amend the state constitution. And when that's done, you know, there's nothing the legislature can do. This is higher law than any legislative enactment. And so in places like Michigan—especially Michigan, you know, the Independent Redistricting Commission was adopted over the shrieks of protest, over the lawsuits of the legislature, but once it was passed, you know, it's now part of the Michigan constitution, and the Michigan legislature is powerless to resist what's now in the Michigan constitution.

Lydialyle Gibson: Okay, I wanted to ask you a little bit also about how gerrymandering intersects with other related issues like voter suppression, and election subversion. And one thing is the recent wave of state laws that are being discussed and passed restricting voting, what will be the effect of those laws? And do you expect those to hold up?

Nicholas Stephanopoulos: Yeah, so I consider voting restrictions, gerrymandering, election subversion, to all be sort of tools for a party to hold on to power, when the people don't want that party or those candidates to be in power. So they're all different complementary mechanisms. You know, voting restrictions, when they're effective, reduce the number of votes that are cast, for the targeted candidates or the targeted party. Gerrymandering affects how the votes that are cast are translated into seats. So it affects the the aggregation of votes, instead of the very casting of votes. And elections subversion refers to efforts to ignore, manipulate the numbers of votes that are cast. So if you can't stop the other side's voters from casting ballots, maybe after the election, you can toss out their ballots, not count them, override the initial count. So they're, they're all different tools of frustrating the will of the people, and enabling, you know, insiders of a particular party to hold on to power when people don't want that party to have power.

Lydialyle Gibson: Okay. And that goes to a concept that I've heard you talk about before the concept of alignment, which you're currently writing a book about, right?

Nicholas Stephanopoulos: Yeah, that's right.

Lydialyle Gibson: What is alignment? And what does it mean for democracy?

Nicholas Stephanopoulos: Yeah, so I consider alignment to be one of the core values of any democracy. As I use the term, it refers to the fit, the match, the the congruence, between what the government does, and what the people in the jurisdiction want. And so the simplest, I think the most compelling, form of alignment is having enacted governmental policies that in some, at least, roughly reflect the policy preferences of the public. So you know, conversely, there's a significant misalignment if you have a government passing liberal policies when the people prefer conservative policies, or vice versa. So your alignment is a democratic aspiration. Misalignment is a significant democratic problem. And all of the different tools we just talked about are misaligning tools, you know, weapons that can produce misalignment. Voting restrictions can result in a misalignment, a mismatch between what the entire public wants and what it gets, when certain people are disenfranchised, or prevented from voting. Gerrymandering: classic misaligning mechanism. You distort the translation of votes to seats, and result in a lawmaking body that passes policies that don't reflect what the people want. And, you know, election subversion, same thing, it's a tool for ignoring what the people actually want, and enabling the government to ignore their views and do things that people don't want. So I see alignment as a sort of useful, powerful theoretical framework for understanding gerrymandering, for understanding voting restrictions, election subversion, the influence of money in politics, and many other electoral issues. And so that's what I hope to highlight in the book, that alignment is a powerful democratic ideal that can be used as a benchmark for assessing the state of our democracy along a whole bunch of different dimensions.

Lydialyle Gibson: Okay, reading the news these days, it sometimes feels like we're not doing so great on alignment. How is alignment going for the United States right now, do you think?

Nicholas Stephanopoulos: Yeah, pretty poorly. There are a couple classic patterns of misalignment that we see throughout American politics. One bias tends to be in favor of the ideological extremes. So you know, most Americans, not all, but the most common ideological position in America, still, is a moderate position. There are more centrists than there are extreme liberals or extreme conservatives. And yet representatives and policy outcomes are significantly more skewed toward the respective edges of the ideological spectrum than people themselves are. So that's one bias. A second bias is in favor of the wealthy and especially those who give money to candidates. So you know, this is a different mechanism than the ones we've talked about so far. This is you know, because the people that dominate campaign contributions and campaign spending are a tiny handful of wealthy individuals, they exercise a lot of pull over elected officials and policies. And so, you know, representatives and policies tend to do a better job reflecting the preferences of the wealthy than they do reflecting the preferences of ordinary people. And the final bias is just a conservative bias. You know, because we have, at least in the current historical moment, more republican gerrymandering, than Democratic gerrymandering, more Republican voting restrictions than Democratic voting restrictions, the senate and the electoral college currently have republican skews to them. So the result of all of that is that in addition to the skews in favor of the ideological fringes and the wealthy, there's just a right-wing skew as well to current American politics. So those are probably the three most important flavors of misalignment that exist today.

Lydialyle Gibson: Okay. And I guess lastly, I wanted to ask you, how is the landscape for all these issues changed over the last few years—as a political scientist and a scholar of the American electoral system, what are the questions you find yourself asking most these days?

Nicholas Stephanopoulos: Yeah, you know, election subversion, for one thing was not on the radar of law professors or political scientists a few years back. And so the the Trump era and the developments since the 2020 election, and some of the recent laws in states that seemed to make elections subversion possible, all of those developments have created an issue, a really bad troubling issue, where there wasn't really one before. You know, to some degree, you can think of election subversion as a return of a first-order democratic issue. You know, if you don't have elections where the votes are counted fairly, you really don't have a democracy. Alignment is wonderful. But before you can even get to sort of higher-order more ambitious goal like alignment, you've got to have elections where the votes are counted correctly. So I see the recent rise of election subversion as an issue, as striking at the real core of what it means for the US to be a democracy. I still want us to be a good successful democracy that achieves alignment and other loftier goals. But we first need to deal with the problem of subversion, you know, make sure that those who want to vote are able to vote and their ballots are counted. And the winners are those who actually get more votes. And we don't see ballots, you know, valid ballots, discarded, ignored, what have you. So I think that's been the single most troubling development of the last, you know, two, three, four years. On the positive side, the big development, I think, is the massively increased plausibility of of sweeping congressional action. At the moment, as I mentioned before, the House has passed the most ambitious election reform bills in American history. Let's say the Senate doesn't act on them. I think still the Senate is one or two votes away from amending the filibuster and doing something comparably sweeping to what the House has done. So even if it doesn't happen now, I think that large-scale election reform is on the national agenda in a way that it probably hasn't been in 50 years. I think the last time that Congress was considering changes this substantial to the American election system, it was the mid-1960s and the Voting Rights Act. And if anything, the bills that the House has passed would go way beyond the Voting Rights Act, in tackling gerrymandering, public financing for elections, universal vote by mail, universal voter registration. You know, they would put our electoral system into sort of the best set of modern democracy. We'd go for me was one of the worst countries, I think, in terms of our overall democratic systems and procedures to being one of the best. And that's really striking that, you know, federal action that ambitious is really on the table right now.

Lydialyle Gibson: That's incredible to think about. And a lot to think before the 2022 election.

Nicholas Stephanopoulos: Yeah, sadly, might be that if this doesn't happen in the current Congress, there might not be a window for it again for years down the road. But I still think that it's now become part of the policy platform of at least one of the parties. And so, you know, if and when there's a substantial enough Democratic majority in Washington, I think that democracy reform now has the same status, as, you know, health care reform prior to Obamacare. It was, you know, a very high priority for Democrats. And when they finally had a big enough majority, it happened. I think the same story is now at least plausible for Democracy reform

Lydialyle Gibson: Ok. All right. Well thank you, Professor Stephanopoulos it's been a pleasure to talk to you.

Nicholas Stephanopoulos: Yeah, my pleasure as well. Thank you very much for having me.

 

 This episode of Ask a Harvard Professor was hosted by Lydialyle Gibson and the season is produced by Jacob Sweet and Niko Yaitanes. Our theme music was created by Louis Weeks. This fourth season is sponsored by the Harvard University Employees Credit Union and supported by voluntary donations from listeners like you. To support the podcast, visit harvardmagazine.com/supportpodcast. If you enjoyed this episode, please consider rating and reviewing us on Apple Podcasts. Contact us with questions at [email protected]

 

 

 

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