For several years, I have studied the workings of local and city
governments, mainly in America but also UK. I am fascinated by retail politics.
You cannot expect an MP or a Congressman to deal with refuse bin problems,
street lighting and the myriad of matters dealt with by local and city
politicians. Sadly, there is much corruption too, although surely fraud,
deception and theft are the exception rather than the rule.
Back in
the 1960s, T. Dan Smith, the Leader of Newcastle
City Council and
a prominent figure in the Labour Party in North
East England, sought to clear Newcastle of slum
housing. Smith formed business links with architect John Poulson.
The relationship led
to Smith’s trial for accepting bribes. He pleaded guilty and was sentenced to
six years imprisonment.
In America, city corruption was rife from post-Civil War times.
The notorious boss, William Tweed of New York, sold pencils to the city at $70
a time and this in the 1870s. In the 1920s and 1930s, city bosses like Tom
Pendergast of Kansas City and Frank Hague of Jersey City perfected the art of
insider dealing as each developed property in their cities and became rich at
the taxpayers’ expense. Pendergast also supplied most of the cement for city
roads. Another fortune made at taxpayers’ expense.
Local and city politicians can also cheat the voters by fixing
elections. Pendergast was the past-master. He devised all sorts of methods to
swing elections his way. Personation, ghosting and ballot-box fixing were only
three of his many tricks. When I give talks about this subject, the topic is
often met with laughter because it is so outrageous but it is a serious matter.
Effectively, the politicians who practice these black arts are cheating voters and
denying their franchise.
My interest was aroused again last week when the Supreme Court heard
oral arguments in Gill v. Whitford, a case which might
impose constraints on partisan gerrymandering, the distorting of districts to political election advantage. The case
concerns a redistricting plan put into place in Wisconsin in 2011. Republican
state legislators developed a new electoral map in secret and then voted it through,
using the Party’s majority in the legislature. In the 2012 election, Democrats
won a majority of votes but Republicans captured sixty out of ninety-nine seats
in the State Assembly. Something new had happened, different from the crude,
ad-hoc gerrymandering of old.
What is gerrymandering? It can be defined as an
occasion when a legally authorized person or body changes the borders of an
area in order to increase the number of persons in that area who will vote for
a particular person or party. But there are other instances, for example where
voters more likely to be favorable to one political party are induced to move
to a new district and ramp up votes for that party.
The word “gerrymander” was used for the first time in the Boston Gazette in 1812 in reaction to a redrawing of Massachusetts state senate election districts. The coiner has never been established. Historians widely believe that the Federalist newspaper editors Nathan Hale, and Benjamin and John Russell were the instigators. Gerrymandering soon began to be used to describe other cases of district-shape manipulation for partisan gain in other states.
It is a rarity in the UK but it happens. Following a narrow election
victory in the 1986 local council elections, the Conservatives in the
borough of Westminster feared they would be defeated unless there was a change
in the social composition of the borough. The Conservative leader, Dame Shirley
Porter, instituted a secret policy known as 'Building Stable Communities'. Some
of Westminster's council housing was put up
for commercial sale, rather than re-letting when
the properties became vacant. The designated housing was concentrated in those
wards most likely to change hands to Labour in the elections, thus markedly
reducing the Labour vote. The Conservatives also played dirty tricks with
“Labour” housing, such as delaying or not carrying out repairs and sanitation
works. The Conservative policy was challenged by the District Auditor in the
courts. Dame Shirley was convicted of gerrymandering and fined heavily.
In the United States, gerrymandering
has a long tradition since the founding of the country. In 1788, Patrick
Henry and his Anti-Federalist allies were in control of the Virginia House of Delegates. They drew the
boundaries of Virginia's 5th congressional
district in an unsuccessful attempt to keep James
Madison out of the U.S. House of Representatives. But
gerrymandering permeates through all stratas of
government. I have anecdotal evidence that some high schools in Texas have
their school districts re-drawn so that promising American football players
would play for a particular school.
Throughout
the 20th century, courts have grappled with the legality of types of gerrymandering
and have devised different standards for the different types of gerrymandering.
Legal and political remedies have emerged to prevent gerrymandering, including
court-ordered redistricting plans, redistricting
commissions, and
alternative voting systems that do not depend on drawing boundaries for
single-member electoral districts.
The internet will provide any
interested reader with the long history of gerrymandering. Following the
Watergate scandal, the "-mander" suffix has been used often to tie a
particular effort to a particular politician or group, including
"Jerrymander" referring to California Governor Jerry
Brown and "Perrymander" for Rick Perry.
In the UK, The Parliamentary Boundaries Commission, an independent body, defines
the geographic area and parliamentary constituency represented by each MP.
A review examines the existing constituencies and makes recommendations for any
changes that might be needed to make sure constituencies comply with legal
requirements. Those legal requirements are intended to keep the number of
electors in each constituency broadly equal, whilst also taking into account
factors such as local community ties.
The Supreme Court has also decided on gerrymander issues. In Davis v. Bandemer (1986), it held that partisan gerrymandering violated the Equal Protection Clause of the Constitution but then made a dogs breakfast of the ruling. The court could not agree on the appropriate constitutional standard against which legal claims of partisan gerrymandering should be evaluated. Writing for a plurality of the Court, Justice White said that partisan gerrymandering occurred when a redistricting plan was enacted with both the intent and the effect of discriminating against an identifiable political group. Other Justices said that partisan gerrymandering should be identified based on multiple factors, such as electoral district shape and adherence to local government boundaries. Three Justices disagreed with the view that partisan gerrymandering claims were justiciable, that is triable in a court of law, and held that such claims should not be recognized by courts. Little wonder the decision was considered unhelpful.
The Supreme Court revisited the
concept of partisan gerrymandering claims in Vieth v. Jubelirer (2004). The
justices divided once again and no clear standard against which to evaluate
partisan gerrymandering claims emerged. Writing for a plurality, Justice Scalia
said that partisan gerrymandering claims were non-justiciable. A majority of
the court would continue to allow partisan gerrymandering claims to be
considered justiciable, but those Justices had divergent views on how such
claims should be evaluated.
Little wonder that in America, the
legal position needs clarification. Whether Gill
will provide the Justices with an opportunity for this remains to be seen. It
seems to me that there has been too much over-thinking by the Court. Surely, it
should be a comparatively simple exercise to rule that re-placing or re-drawing
district boundaries cannot have an overriding political influence favouring one
political party. But this is America where its highest court is often as much
political as legal.
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