The Tyranny of Automatic Bipartisanship

The recent voting-rights controversy in Ohio hinged around a curious institutional feature. In each of the state's 88 counties, a local elections board determined county electoral policy. But these boards weren't just elected by the general county population. Instead, they had a predetermined equal number of Democrats and Republicans. So, when each county was considering whether or not to have early voting in this year's Presidential election, a curious dynamic started up. Democrats, who favor voting rights generally, supported early voting everywhere. In most counties, their Republican counterparts also supported early voting. The exception, of course, was the handful of urban counties where Ohio Democrats rack up big margins to stay competitive statewide. In those counties, every Republican voted against early voting, creating a tie. The Ohio Secretary of State got to break those ties, and sided with the Republicans, preventing early voting. Net result? More generous voting provisions in Republican-leaning counties than Democratic-leaning ones.

Now, fortunately, a federal judge has put a stop to this whole regime, thanks to a quirk of the law permitting the roll-back of early voting in Ohio that exempted the military, and therefore ran afoul of the Equal Protection Clause. But I'd like to point out a different aspect of the whole affair, namely the dangers and, in a sense, tyranny of requiring everything to be bipartisan. Because the problem here was only that Republicans held genuine policymaking power in the Democratic-dominated areas. If, in Cuyahoga County where Obama won more than two-thirds of the vote, two-thirds of these board members were Democrats, they'd've just voted to continue early voting, and no problem. In each county, if the boards reflected the political composition of their constituents, they would automatically have an interest in promoting their constituents' rights to vote. Instead, we had a system that gave people control over the political voices of their opponents.

Another way in which insistence upon bipartisanship leads to undemocratic results can be seen through the "grand bargain." If there's a culture that says all major legislation must have substantial support from both parties, and both parties' leadership, then it doesn't matter in the slightest who wins the elections. Policy gets made by the two caucuses together, and the people stop being allowed to choose which policies they prefer. It's a slightly different dynamic to the Ohio situation, but serves similarly to illustrate the problem. An a priori decision that everything must be bipartisan amounts to a decision to reserve power for the losers of elections. It means you don't need to win an election to hold substantial political power. That is, almost tautologically, undemocratic. And the result is what we saw in Ohio.

Good thing we've got the countermajoritarian judiciary to police these things.

Why I Can't Support the Constitutionalization of the Right Against Gerrymander

I'm a huge fan of Baker v. Carr, and all its progeny, the cases which for the first time in our nation's history subjected the apportionment process to constitutional scrutiny, and declared the fundamental principle of "one man, one vote."* I also think that there is roughly-speaking zero good reason for anything resembling the kind of gerrymandering that's standard fare these days. I'm pretty sure that if you plugged a population-distribution map into a computer, and gave it a few parameters about respect for political divisions, respect for demographic distinctions, etc. versus the desire for compactness and simpleness of form, that computer could spit out a map of equipopulous districts rather quickly. I think we ought to do that, rather than let committees of the politically-powerful draw maps to achieve various ends. And yet, I just cannot bring myself to support the idea that anything like independent, non-gerrymandered districting is required by the Constitution.

The fundamental logic behind the idea that this is a constitutional requirement, or should be anyway, is that we want the voters to choose the government, not for the government to choose the voters. A scheme of partisan gerrymandering, where the opposing party's voters have their votes diluted much as blacks had their votes diluted in old Southern maps, seems like an obvious case of one party using power to perpetuate its own power. I'm open to the idea that this is not acceptable, constitutionally speaking. But lots of gerrymanders aren't like this! They are, often, for the purposes of 'incumbent-protection.' In some states, the two parties achieve a state of detente, in which each is allowed to protect all of its incumbents, reducing the number of 'swing districts' and locking in the status quo. This seems uncool, right? We want The People to retain the power to vote their government out of office.

But here's my problem: they have that power! Voters can just vote for someone else if they want to! If a district is drawn in which Barack Obama captured 70% of the vote, with the intention of creating a "safe seat" for some Democratic incumbent to cushily occupy for all eternity, the voters of that district retain a complete right to kick that incumbent out of office if they so choose! Given that we have a fairly universal open primary arrangement in this country (and I do think there may be some sort of right to an open primary, though I'm not sure what I think about that issue), those Democrats can just vote for some other Democrat in the primary, as happened to Emmanuel Celler and Adam Clayton Powell in deepest-blue New York City. Or they could vote for some independent candidate. Or for the Republican. It's up to them. That it is highly unlikely a majority of them will decide they prefer the Republican challenger to the incumbent Democrat does not mean that their right to elect whomever they damn well please as their representative has been in any way lessened.

To put it another way, I just can't bring myself to accept that there's a right to live in a swing district. Hell, if we could define swing districts precisely that would seem to imply that voting preference couldn't change, which would make the whole notion of a right to vote kind of silly. The fact that I, and the vast majority of my fellow inhabitants of the First Congressional District of Rhode Island, have a fairly well-settled preference for the Democratic Party over the Republican Party, does not mean that our right to vote has been infringed!!!  I take about as much offense at an incumbent-protection map, like the one that governed California for the last decade, but c'mon people, it's just not an infringement of the right to vote, as malapportionment is. It's not an attempt to remove political power from members of one race, or one political faction. It's just the creation of relatively more districts which, we expect, will be won by large margins as opposed to small margins. There's no right to have roughly fifty percent of the people in your district favor each political party. So however much I might favor independent districting, I just can't conclude that it's a constitutional requirement.





*That's how the principle was phrased at the time; obviously, it should now be rendered "one human, one vote." (And yes, that's better than "person," because we don't give non-humans any votes, now do we?)