The Libertarian Case for Redistricting Reform
Walter Olson on Gerrymandering
Every 10 years, congressional district boundaries must be redrawn based on incoming census data. It sounds simple enough, but like every politicized process, redistricting decisions are made to benefit an entrenched class of incumbents and the politically powerful.
The practice of “Gerrymandering” dates back to 1812, when Massachusetts Governor Gerry (pronounced “Gary”) Eldridge signed a law enabling his party to redraw district lines such that they would remain in the majority. Oddly-shaped districts, often resembling crooked and lanky salamanders, have been a fixture of American politics ever since.
Redistricting reform is just one issue under the umbrella of the challenges inherent to representative democracy. Someone has to decide where to draw the lines, but who should it be? More importantly, how can we have fair and proper representation at all in a country with 300 million people?
The Founders’ solution was a House of Representatives that grew in size as the country got larger — but only up to a point. The House stopped growing after reaching its current size in the early 1900s. Now, each representative casts votes on behalf of more than 600,000 constituents — a number that keeps growing with the overall population.
Walter Olson, blogging pioneer and senior fellow at the Cato Institute’s Center for Constitutional Studies, laments the fact that our representatives have become so remote that politics can now only be conducted by mass media.
Politicians are treated more like celebrities than public servants, and the result is an aloof and unresponsive government.
Making matters worse, both major party establishments have entered in an unholy alliance wherein they allow each other to set district boundaries that insulate their preferred candidates from competition (both inside and outside of their party).
Walter says that libertarians and classical liberals should be especially sensitive to the dangers of politicians selecting their constituents, rather than vice versa.
He recently wrote the lead essay for a Cato Unbound symposium titled, Why Libertarians — and Others — Should Care About Gerrymandering. He drew on his experience as co-chair of Maryland’s Redistricting Reform Commission. Maryland’s Governor Larry Hogan has been a leader on this issue, looking for solutions that can spread to other states. Their recommendations included requirements that districts be compact and contiguous with existing municipal boundaries. That means no snaking segments linking two predominantly Republican or Democratic regions to create safe havens for incumbents.
Walter returns to the show to discuss the challenges of designing a truly representational system of government. Bob will introduce his idea for a Federal representative body of 20,000 members, which need not even be linked to geographical areas.
Is is time for a Constitutional Convention to bring the House of Representatives into the 21st century, or can smaller reforms achieve a similar end?
Bob Zadek: Hello everyone. Welcome to the Bob Zadek show, the longest running live libertarian talk radio show on all of radio. Thank you so much for listening this Sunday morning to an hour of ideas not attitude. I’m happy to welcome back to the show, this morning, Walter Olson. Walter is a senior fellow at the Cato Institute Center for Constitutional Studies. He’s written numerous books on the law, including The Rule of Lawyers, The Excuse Factory, Schools for Misrule and his first book, The Litigation Explosion, which was one of the most widely discussed general audience books on law of its time. It is a must read if you even have the tiniest bit of curiosity about litigation and the law. Walter is the founder and principal writer on probably the oldest blog on the law and one of the most popular, overlawyered.com, and because of his blog, Walter has been personally responsible for my missing more than one business telephone call that I had scheduled.
I come to work in the morning and the very first thing I do is read Walte’s blog, “Overlawyered,” and before you know it, I am hooked. I click to a link and that clicks to another link and then back to another link. And then, “Oops, I’ve missed a phone call.” So Walter, my practice is hanging by the slimmest thread because of overlawyered.com. It is a must read for lawyers, and of course for non-lawyers. Walter has testified before Congress numerous times and, most relevant to this morning show, in 2015, Walter was appointed by Maryland’s governor Larry Hogan as co-chair of the Maryland Redistricting Reform Commission.
Today, we will discuss redistricting aka, Gerrymandering.
Gerrymandering is a topic you probably know a little about. The rich history of that phrase is what we will be discussing this morning. If you value the right to vote, the practice of redistricting can basically neutralized, if not totally remove the value of your vote, at least in so far as elections in the House of Representatives or the State legislative body equivalent. So Walter, with that introduction, welcome back to the show this morning.
Walter Olson: Thank you so much. Thank you for kind words, too.
Bob Zadek: Oh, so well deserved. Now, let’s get right into redistricting. What is redistricting and why does it matter to each and every politically active listener of this show?
Walter Olson: The representation that we have in our State Legislature or in the House of Representatives is based on a geographical district. Those lines change at least every ten years, because the census comes out and with that they see that the population has moved into some areas and maybe out of some other areas. As we will see, this process of drawing lines gives a lot of power to whoever draws them, because by drawing lines in clever ways, you can take a small majority of voters and turn it into a large majority of legislators, or maybe even take a minority of voters and turn it into a majority of legislators. By cleverly drawing the lines they can maneuver concentrations of the other guy’s voters into just a few districts and keep a smaller majority of their own supporters around many other districts.
Bob Zadek: So often we hear about members of the House of Representatives who in effect, lose an election because their district line has been redrawn. They are voted, if you can use that verb, out of office simply due to the redrawing of their election district rather than because the voters have soured on them. And there have been many examples of that. Usually it happens right after a ten year census, which are required in the constitution. So, what is the relationship between redistricting and the every ten year census?
Walter Olson: Well, our Supreme Court has said that the districts have to be equal in population, and that the trigger for that is the census, which lets us know how many people live in each potential district. So that kicks off the process. We will see it after this upcoming 2020 census. Every redistricting body is going to have to go back to the drawing board and redraw the existing districts. This means that they will have the ability to retaliate against law makers they may not like and help their friends by creating favorable district for people who want to run for office.
In general, it benefits incumbents, because most states entrust the process to existing law makers. California does things differently, and we’ll talk about that. A couple of other states have also moved away from doing this. But in most states, the people who get to do this are incumbents or handpicked representatives, which means that it’s done in the interests of those, by and large, who are already in power. They use this to entrench themselves and dig deeper into their incumbent status.
Bob Zadek: The process of redistricting is such a hyper-political, nasty process. I was surprised, frankly, that you used the word “entrust.” If anything doesn’t apply to this process, it is trust. You empower perhaps, but trust… I winced when you said it.
We have had the system of drawing election districts for as long as we have been a country. Anecdotally, it kind of has a rich history. Our listeners probably aren’t aware of the fact it goes back to post-colonial times. Patrick Henry, who was not a fan of James Madison, opposed the Constitution as Madison introduced it to the Constitutional Congress. Patrick Henry was governor of Virginia and redrew James Madison’s district to try to get him voted out of office and then persuaded his friend James Monroe, I believe it was, to run against Madison. Madison survived the redistricting and went on, needless to say, to a successful career in politics. So it goes back that far. Now, just as a sidelight, Walter, the word “gerrymandering,” a rich word in our political vocabulary, where does it come from?
Walter Olson: Gerry is the one that it’s named after. I think he was vice president for a while, but he also was governor of Massachusetts. In one of the periodic re-districtings that Massachusetts did, Gerry strung together a number of towns north of Boston that really didn’t make much sense as far as any sort of neighborhood or part of the state. They proceeded in a line and avoided a bunch of other towns that were nearby. A cartoonist of the day realized that it looked a bit like a dragon or a salamander, and drew a famous political cartoon in which the outline of the towns was turned into a Jabberwocky-type dragon, which he called the Gerrymander. The name stuck, and the then-famous Gerry was forgotten for almost everything except this.
Bob Zadek: Elbridge Gerry was also famously one of the drafters at the Constitutional Convention who refused to sign the Constitution. He was opposed to the Constitution. As an interesting sidelight on this very interesting man’s life, he was one of three who opposed the Constitution, and many like me think he was right. But that’s for another show.
So now, Walter, we mentioned the Constitution. Does the Constitution offer any guidance? Does the text of the Constitution speak to the goal or the standards for drawing a congressional district?
Walter Olson: That’s the very interesting thing. It’s not silent, but at the same time it doesn’t really allow standards. For the U.S. House of Representatives –and that’s what we’re going to be talking about for the moment, because the Constitution doesn’t really say much about State Legislatures and as for the U.S. Senate there were completely different rules — it states that the states start out with the right to come up with the methods for election, but Congress may prescribe rules to standardize how the states do that. So the states start out with the power, but Congress can second guess them, and at various times throughout American history, it has second guessed them.
The Congress has at times, although not now, prescribed standards that get at the gerrymandering issue. It has used concepts like “compactness.” It has also gotten into questions of whether districts have to be individual, one representative per district, or whether you can use multi-member districts, or at large election where someone might run statewide for the seats in that state, even though it has more than one representative.
So Congress definitely can exercise power in this area, and one of the interesting debates proceeding right now in Washington is whether it should. The Democrats who feel injured from Republican gerrymandering in recent years are very interested in introducing bills by which Congress would reassert some power in this area. The Republican senate, of course, is not quite so enthusiastic. It’s definitely an area to watch.
Bob Zadek: The political class is able to get more and more specific and accurate data on where their voters are and where the other guy’s voters are. As Big Data starts to influence the political process, the ability to carefully draw a district to make sure that your guy is virtually assured of a majority — and it doesn’t matter how much of a majority, but a majority — turns the election, at least in so far as the House is concerned, into a vacuous empty act with no political significance. In effect, it becomes a “why bother?”
If your political point of view is not in the majority in the State Legislature, you shouldn’t even bother, under the existing system, voting for the House because you don’t get a vote.
Is it an exaggeration to say, at least in so far as the House is concerned and probably state representatives, that voters have been in effect denied the importance of their vote or in effect denied their right to vote by redistricting if they are in the party that’s in the outs?
Walter Olson: I wouldn’t go as far as that. You’ve launched into several topics here, and I’m not sure I can answer all of them at once. Let’s get back in a minute to the question of whether or not the voters who are on the wrong side of a Gerrymander have lost their right to vote, because I think it’s more complicated than that.
You brought up the topic of Big Data, and that’s a good place to start. That is one of the things that has changed between our parents and grandparents generation, when gerrymandering was definitely already happening. You can go back through the history of the 20th century and people were debating gerrymandering. What was not happening because there wasn’t the technology for, it was a very rapid use of Big Data in order to do this sort of thing with great efficiency and on short notice.
They had access to the records of how different neighborhoods had voted precinct by precinct. They had access to all of the same information for party registration and other key data. but it was messy. There was a lot of data there and it might take weeks or a months to construct something nefarious. In those weeks and months, your political rivals might be organizing, they might be publicizing the issue. There were many ways in which power was checking power or jealousy was checking jealousy. Now walk around with a database in your phone.
Eith modern technology, you can try “what-ifs?” For example, what if we moved 100,000 people over from one district to another and then make up for it by moving another 100,000. You can basically do this behind closed doors, in real-time, and with remarkable precision. Earlier generations probably considered themselves lucky if they could just switch around individual towns, as Governor Gerry did in Massachusetts.
Now they don’t have to stop at the precinct level. They can go down the street, separating the Republican from the Democratic buildings. There is one example from here in Maryland that we heard testimony on. The Maryland legislature had gone up and down one of the boulevard north of Baltimore and had scalped around individual buildings in order to put the more democratic buildings. Building by building! I think the only way they could get any more detailed than that would be to actually invade the property line and separate the Democratic husband from the Republican wife by cutting their bedroom in half. Short of that, they have brought it to an absolute perfection with how precise they can get, and that makes it a little more threatening in some ways. Especially on the time element, because legislatures can hold back and then spring changes at the last minute that are just as carefully done as if they had spent six months on it.
Bob Zadek: Your description of your experience working with the state of Maryland (and we’ll get more into that in a moment) brought up two thoughts.
First of all, were you able to conclude that a certain style of architecture was more likely to have Democratic residence or Republican residents? Because we might be onto something as a matter of real estate practice.
Second, during the debate in the legislature, I would love to hear about the hypocrisy on steroids that must occur when you have a member of one party defending their drawing as being more fair and a member of the other party defending his drawing as being more fair. There is no objective right and wrong, at least as the system now stands, for justifying districts. Is it just “I want to win” — “No, I want to win”?
Walter Olson: I have had a good laugh, and I know that the justices on the U.S. Supreme Court have had a good laugh comparing the justifications that they will make in public trying to defend their districts. This came up this last year because the U.S. Supreme Court heard, although it didn’t really resolve, challenges from both the state of Wisconsin and the state of Maryland.
Maryland had done this ridiculous and extreme gerrymander and they realized that they couldn’t just come out publicly and say, “Well, we wanted our party to win, and that’s why we did it.” They tried to come up with justifications. They might say that they were basing it on an interstate that runs the whole length of the district, and they felt that it was a community of interest to people who live near the interstate.
Of course, privately, they were trying to come up with some reason that they could give the public so that they could win the district, and this information came out in the litigation. The U.S. Supreme Court justices were having a big laugh, thinking how did the legislatures really think that people were going to believe what the statements they were putting out on this.
Fortunately, it doesn’t have to just be one side with the power over the other, because they are better and worse maps. Take the issue of compactness. There are some maps where you’ll see that they squiggled around to create these elongated districts in order to reach out and grab towns in very different sections. And you see other ones that have something closer to squares or circles that look as if they belong together.
You can actually measure compactness mathematically. You can reduce it to a formula and you can compare it two maps. You can say that one map is four times more compact than another map. Courts have used measures like that in places where the law allows judges to review the process and give objective standards like compactness. In these cases judges have struck down those maps.
The problem in cases like the Maryland congressional redistricting is that the law does not prescribe any objective standard, and in these states the courts feel that their hands are tied and there’s no way for them to intervene.
Alternatively, in some states the law itself prescribes standards. For example, don’t split counties unnecessarily and don’t split cities unnecessarily. When the law gives the line drawers and the courts three or four reasonably objective standards that the map should meet, you tend to see much better maps. In the other places where you don’t have these standards, they can go wild. That is what has happened in many states. They go wild because there is no control on them.
Bob Zadek: The subject of standards peaked my interest, Walter. I know the Cato Institute has published a lot of material on redistricting. Cato in its publications lists the compactness of districts, county lines, and the like as being positive, sensible standards. But there is something about it that does not ring true to me. Many counties are not comprised of individuals who have unity of interest. There are rich and poor in counties, urban, suburban, rural, and the like.
So there often is not one dominant or overwhelming characteristic to unify a county, and counties are historically random. In addition, county lines were often drawn a long, long time ago. The concept of county is kind of neat, but from a standpoint of the functioning of democracy, I find the county to be as arbitrary as a salamander.
Walter Olson: I’m going to agree that you have a point on part of your critique, but I’m going to go back and defend it anyway on a number of other grounds. Let me start by saying that if you go around the country, you will notice that the relationship between state boundaries and local political units varies a lot. In the mid-Atlantic, where I was doing my work as part of the Maryland Commission, counties are very important. Counties run the schools, the law enforcement, and most of the public services. As a result, people are conscious of the fact that they live in a particular county. And the political class that climbs up to run for Congress has traditionally and historically previously held county office. Now, that’s the way the mid-Atlantic does it.
If you go up to New England, it’s totally different. The counties are very unimportant in New England and it’s the town that’s important. Your town and someone else’s town might be in the same county, but neither of you really cares about that because the schools are mostly, law enforcement, etc. are managed at the level of the town.
Out west you have other mixtures. California, for example, is quite different. San Bernardino County and Riverside County have a city as the anchor on one end and then large stretches of desert on the other end. That’s not the same kettle of fish as a central state like Iowa where the counties are mostly square and uniform. Naturally, each state is going to approach these things differently.
Walter Olson: Let me start with one big advantage of this. As with originalism, which is a method of having judges interpret the U.S. Constitution, it ties their hands so they don’t try to bring in their own subjective and biased alternative notions of how to do it. If you just tell line-drawers to come up with whatever community of interests they want, then don’t be surprised if they come back with biased maps that help all of their friends and then rationalize afterward as to why they wanted to do it that way. If you tell them to follow rules of compactness and not to break the boundaries of counties anymore than they have to, then you are tying their hands against using their power for mischief the same way that Originalism ties judges’ hands against putting whatever spin they want on the Constitution in order to keep changing the law.
Beyond that, when you talk about compactness especially, you hope to be getting at the communication and transportation systems that make a real difference when people are trying to become known in a district in which they are running. For example, if you are lucky, you will be turning districts into single media markets where you advertise and you can be known by people in one particular city. A large number of the Maryland districts are situated such that they are partly in the Baltimore area and partly in the Washington D.C. area, which is a totally different media market. Let’s step back for a moment and think about what it’s like to challenge an incumbent in one of those districts. All of a sudden you’ve got to increase your name recognition in two major city markets at once, both Baltimore and Washington. If you want to advertise, then each of those places has six or eight congressional districts surrounding it and you’ve got to buy incredibly expensive advertising. Well, not too surprisingly, hardly anyone ever succeeded in challenging someone in one of those districts where they have to master two medium markets at once.
If they move over to a more compact district it’s more likely that they can become well known in that one city, and maybe that’s going to give them enough of a base of name recognition that they can knock out incumbent member of Congress who has been abusing their office or taking things for granted.
So the non-compact districts are more expensive to campaign in, they are harder to achieve name recognition in, and you are more likely to have to turn to one of the statewide lobbies. And here’s where interest groups come in to benefit from a gerrymandered system. In a state like Maryland, who’s going to help put you into one of the gerrymandered seats? You’re going to need some statewide allies like a public employee union or maybe a business group that has interests statewide and can mobilize troops anywhere in the state. That’s who is going to be able to help you when the districts no longer correspond to normal community is like cities or clusters of nearby cities.
Bob Zadek: I never thought about how the design of the district makes an incumbent elected official more vulnerable. You gave me a wonderful insight. I really appreciate that. Now, you mentioned in the beginning of our show that Congress rarely gets involved in giving rules to the states about how to design election districts. One of the most, maybe the most, glaring exceptions to Congress’s general reluctance is in the area of race. There has been so much written and discussed over the years on the effect of designing districts with race as a consideration and whether or not we should we be doing that.
What is the effect of that? Is that good policy or bad policy? Help us understand how the hot button topic of the consideration of race in the drawing of election districts has played out at the national and state level.
Walter Olson: It is a very important issue and it’s impossible to understand how the wider issue works around the country without understanding the Voting Rights Act and how race plays into it. Let’s start with the Constitution. The post civil war amendments were specifically aimed at changing the disfranchisement and the legal disabilities placed on blacks in the South. There were very real problems there that continued after Reconstruction through the Jim Crow era. Different legal techniques we use to keep blacks from voting in the South. To fulfill the mandate of the post civil war amendments, Congress was given power to supervise these rules in order to prevent blacks from being disfranchised. There was and is constitutional authority for Congress to act in this area. The question is, how it acts and whether it’s acting wisely or whether it’s making problems worse.
Part of the issue as it affects redistricting is that Congress should not be letting states in the south or anywhere else use gerrymandering in order to prevent the election, that would otherwise naturally occur, of minority candidates or candidates preferred by minority voters.
It’s perfectly fine for Congress to tell states that the Constitution specifically prevents them from using the system in order to deprive blacks or other minorities of the chance to elect whoever they want. That’s fine as a principal, but then you get into the implementation. Is it enough just to police the cases where there’s some indication of bad motives or you can deduce bad motives based on the fact that they keep redrawing lines, and even though there is a black majority in one part of the state, they’re always dividing it up to fit one specific person?
It was eventually decided that there would be active intervention and that states would be guided to create majority minority districts and have enough minority voters that, even if turnout rates were not as high, they would still elect minorities.
You were beginning to move over to the voting equivalent of what is so often criticized as affirmative action or goals and quotas. You’re beginning to get artificial controls that might take a perfectly innocent map, that someone had drawn for good reasons, and get it declared illegal.
You find in the modern era that the Supreme Court has gone back and forth. In a famous decision, Shaw v. Reno, Justice Sandra Day O’Connor, on behalf of a majority of the court said, “no, you can’t just use this as a license for affirmative discrimination. It has to be done in a way that falls short of a total race consciousness in the other direction.”
Still, that left a lot of unanswered questions. Now, let me shift from the legal background, where it’s still not really resolved, to the practical effect. One of the facts of life in American politics is that minority populations — and this also is true of Hispanics in various places as well as blacks — first, are geographically concentrated in a knowable way. Secondly, they tend to support the Democratic Party, which means that the creation of majority and minority districts winds up gathering a lot of the strongest democratic voters into a few districts.
What happens is that the rest of the state begins looking a lot like a Republican gerrymander. Texas is a good example of this. As well as Alabama and many other southern states. They have created districts that are pretty artificial in shape, in order to try to ensure that there will be blacks elected from them. And as a result, the districts around them have most of their democratic voters pulled away from them and you have a string of Republican districts around it. And of course, the Republicans also tend to control these states and also have a motive to maximize the number of Republicans. But whether or not they are adding additional gerrymandering, you wind up with a state that is electing a lot of Republicans and the maximum practical number of black Democrats.
It wouldn’t have to be that way or a more random or a more impartial mapping. You’d be getting some white Democrats too, as it were. So that makes the overall problem a much knottier one. Some of the ways of removing gerrymandering run into problems of Voting Rights Act compliance. The Voting Rights Act is widely supported. Its objectives are politically popular in both parties.
There are states where it doesn’t matter that much, because the state leans so heavily Democrat or Republican in the first place. California, you might say, is one of those states. However, in many states, it’s hard to disentangle the goals of the Voting Rights Act from the perceived gerrymander that is left when you’re done with all of the drawings.
Bob Zadek: Is the Voting Rights Act a negative or positive piece of legislation? And by that I mean, clearly a state cannot draw a district with the intention of diluting minority black voters so they don’t get a voice and are never in a majority. It’s another, very different principle to say, draw a district to assure that if they vote according to race, a black will be elected.
I have heard many people describe the purpose of the Voting Rights Act as to ensure that blacks get elected, but that’s not quite right, is it? It’s to make sure that blacks are not discriminated against, but not that they affirmatively get elected. Is that a fair observation?
Walter Olson: It’s hard to pin down exactly how the law works, but you’re right that it is not either of the clearer positions. It’s not just a ban on badly motivated attempts to reduce black voting power, on the one hand. And it’s also not a mechanical prescription that you’ve got to maximize the number of districts electing black officials or containing black voters. It’s somewhere in the middle. There are complicated rules such as retrogression, which states that you are not supposed to reduce the number of existing districts, even if you didn’t have to create a higher number.
So there’s a lot for lawyers to argue in between. It’s not clearly one and it’s not clearly the other. It’s enough to dissatisfy everyone, because there is an element of making things race conscious, and that bothers people who believe the Constitution aims to bring us to a race unconscious final outcome.
On the other hand, it doesn’t necessarily ultimately help the interest of minority voters. The fallacy here is the assumption that there is a single interest and a single wish on the part of minority voters. The fact is that minorities, like every other group, have a range of views. Some of them identify with the Democratic side and would rather have more Democrats elected whether or not it’s a maximum number of minorities.
Others say, “No, I feel that I’m better represented if there are people from my particular minority group and that’s more important to me than party.” There are black Republicans. There are all sorts of different combinations of perspectives. So, the idea that the law sometimes is thought to hold, which is that there is a single minority interest, is fiction that may not always withstand close scrutiny.
Bob Zadek: Implicit in what you just said, Walter, is something which always struck me as being kind of strange in today’s world, and maybe it was less strange a hundred years ago. And that is that a black or any other racial minority believes that they are best represented by somebody of the same race. That assumption I don’t think really proves true all that often. They might be more drawn to somebody in the same socio-economic bracket or the same part of the country. There are other types of affinity that might draw you to vote in a certain way. I don’t know how many people actually vote on the basis of race, but the Voting Rights Act assumes that to be the case.
Walter Olson: We can look at individual elections. For example, there are many elections in which the Republicans choose a minority candidate and the Democrats choose a white candidate. Let’s look at Ted Cruz. He gets a lot of Hispanic votes in Texas, but he does not get to a majority of Hispanic votes even though he counts as Hispanic. I think the same is probably true for Senator Scott of South Carolina, a black Republican. He does well for a Republican, but it’s not as if he is carrying black votes in South Carolina. So the tug of party loyalty is one of the things that is typically more important. As soon as you move over to a primary level, let’s say it’s a Democratic primary, then you may see quite a bit of racial block voting, depending on what state, what year, and who the particular candidates are.
In some states, blacks in a Democratic primary look as if they prize the chance to vote for some black candidates over the white alternatives. Again, people’s own feelings are complicated, they are expressed in different ways. If you take something away, they will feel that you’ve taken it away. If you act like you’re requiring it, they also don’t want it to be required. There is certainly no consensus that I’ve seen, on the part of black voters, for preventing racial block voting. But they also feel that in many cases it’s just not relevant.
There are other things are more important, such as the viewpoints of candidates or the trust they have in the candidates. They find these things more important than staying on racial lines. If I had any solution to America’s racial problems, I would be delighted to advance it, but in many cases we’re not out of the woods and we don’t quite see how we’re going to move to a post-racial or nonracial future.
Bob Zadek: Can you help us understand why the courts are kind of reluctant to get involved in redistricting and the issue of a “political question”.
Walter Olson: The first question a lot of people ask is why don’t the court save us and why don’t they step in, knock down the obvious gerrymanders and draw maps themselves. Part of the answer is that if you give the courts too much power in this area, you invite the courts to be politicized themselves. That’s the big reason why the U.S. Supreme Court has stayed back. That’s the reason why a lot of state courts won’t do it unless they’ve got very clear marching orders. If the judges are going to draw the lines, then that’s one more reason why party loyalty may be more important than impartiality and legal skill in getting to be a judge in the first place.
So the Supreme Court, lower courts, and state courts have really avoided, except when dragged into a kicking and screaming, resolving what are called “political questions”.
Bob Zadek: Walter, we have only, regretfully, scratched the surface on the subject of redistricting, but I know that we have made our listening audience wiser as a result of this hour of conversation. Thank you so much for being on the show.
- @WalterOlson on Twitter
- Overlawyered.com — one of the longest running legal blogs on the Internet.
- Why Libertarians — and Others — Should Care About Gerrymandering | Cato Unbound Nov. 6 2017 by Walter Olson
- Gov. Larry Hogan’s Maryland Redistricting Reform Commission Report, 2015, co-chaired by Walter Olson
- Walter Olson, the “Guru of Tort Reform,” on Arbitration, December 6, 2015
- Prop 27 — Redistricting, with Steve Maviglio,October 3, 2010
- Akhilesh Pillalamarri: Should the U.S. Have a Parliament?, November 6, 2016