Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at references made in President Obama’s State of the Union speech, and their relation to a long-held debate about gerrymandering.
THE STATEMENTS AT ISSUE:
“It is one of the few regrets of my presidency that the rancor and suspicion between the parties has gotten worse instead of better. I have no doubt that a president with the gifts of Lincoln or Roosevelt might have better bridged the divide….But my fellow Americans, this cannot be my task – or any president’s – alone….If we want a better politics, it’s not enough just to change a congressman or change a senator or even change a president. We have to change the system to reflect our better selves. I think we’ve got to end the practice of drawing our congressional districts so that politicians can pick their voters and not the other way around.”
– Excerpt from President Obama’s final State of the Union Message to Congress on January 12.
“Let me now warn you in the most solemn manner against the baneful effects of the spirit of party. It serves always to distract the public councils and enfeebles the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one party against another, foments occasionally riot and insurrection….A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into flame, lest, instead of warming, it should consume.
– Excerpt from George Washington’s farewell address, September 17, 1796.
WE CHECKED THE CONSTITUTION, AND…
The leaders of America’s founding generation, and the authors of the United States Constitution, had observed the crude beginnings of a political party system, and saw in it a significant threat to the nation they were bringing into being. They referred to it as the “spirit of faction” or “the spirit of party.” It was, they believed, the opposite of the civic virtue that they prized in government leaders and in the nation’s citizenry – that is, the capacity to see, and work diligently to achieve, the common good.
In today’s America, the unfolding of a new presidential election campaign has been marked by a pervasive pessimism and fear among the citizens, noted by pundits as the likely cause for the seeming popularity of candidates from outside the political mainstream. In his last State of the Union message, President Obama spoke sadly of the “rancor and suspicion” that he saw in contemporary politics, and which he had personally failed to remedy.
It is of particular interest that, in calling on the nation to find solutions to those discontents in politics, the solution that was first on the President’s list was the end of a system of partisan gerrymandering – that is, drawing election district maps that are designed specifically to improve the election chances of particular parties. (It is possible that many in the President’s public audience did not catch his meaning when he phrased that problem fleetingly, as drawing districts for congressional elections as a process in which politicians pick voters, rather than the reverse. Among political commentators, that is a common way to describe the ability of legislative draftsmen to use very precise census data along with information about party affiliation to draw the lines of districts so that the partisan outcome can actually be predicted. It is done with very precise computer calculations. It is subject to very high risks of political manipulation.)
It was noteworthy that, when the President recited that complaint, it drew applause. That, however, probably cannot be interpreted as a sign that either party’s leaders will turn out to be in the vanguard of an effort to stop the practice of partisan gerrymandering.
In constitutional terms, drafting a legislative election map to create an advantage for one party or the other is not illegal. The Supreme Court has refused several times to hear claims that there can be too much partisanship in this kind of political gerrymandering; it has done so because, so far, it has been unable to define a way to show that too much party favoritism violates equality-in-voting principles.
One of the problems of partisan gerrymandering in state legislatures, where it very often occurs, is that those are the bodies that – after the next census – will be drawing up new election maps not only for themselves but also for their state’s members in the U.S. House of Representatives.
It is now commonly accepted, among unaffiliated analysts, that the current House of Representatives’ partisan makeup has been heavily influenced by partisan gerrymandering. It has been observed by some of those analysts that perhaps seven out of every ten seats in the House will be filled – at every election biennially -- by candidates elected from districts gerrymandered for partisan gain. If that is an assertion that can be proved, it probably suggests that there is no prospect for a change in party dominance of the House until after there is a new round of redistricting following the 2020 census, and then only if there is a notable shift in party control of state legislatures.
There is a movement in some states (and it has received the constitutional blessing of the Supreme Court) to take the legislative redistricting task out of the hands of party-dominated state legislatures, and turn it over to independent, non-partisan commissions. That movement, of course, is rigorously challenged by existing party leaders and their followers, because in at least a number of states it would cut seriously into their advantage at election time.
That movement is a modern echo of political reforms that came into being early in the 20th Century in what has been called the Progressive Era. That was the time when citizens began gaining the right to enact or second-guess laws on their own – through ballot initiatives and referenda. And that was also the time when, in 1913, the Seventeenth Amendment set up popular elections of members of the U.S. Senate, taking that task away from state legislatures and their appointive power.
Those reforms, too, were prompted by widespread public concern over the “rancor and suspicion” that had affected American politics, especially in the politics in America’s cities run by entrenched political “bosses.”
Whether President Obama, in office or out, can rekindle that kind of sense of civic improvement is a task he seems eager to embrace – but it may well be against significant odds.
