Former California Governor Arnold Schwarzenegger wants to say “Hasta la vista, baby” to Wisconsin’s legislative and congressional district boundaries to terminate gerrymandering. The San Francisco Chronicle is reporting the movie star and moderate Republican has joined with Common Cause to fight for “redistricting reform” across the country, starting with the legal challenge to the lines drawn for Wisconsin’s legislative seats.
“Gerrymandering must be destroyed,” Schwarzenegger told the Chronicle. “You must demand gerrymandering reform in all 50 states.”
Gerrymandering is the name given to the process of redrawing legislative and congressional district lines in an attempt to give one party a partisan advantage. Every ten years the district lines are re-drawn after the decennial census. When Republicans swept Wisconsin’s elections in 2010, they were able to redraw the lines without Democratic Party input, giving Republicans an advantage.
Wisconsin’s new legislative maps survived the first legal challenge with the exception of two state Assembly districts on Milwaukee’s south side that had to be re-drawn create Hispanic-majority districts.
However, a more recent challenge using a new argument is now going to the U. S. Supreme Court. The plaintiffs in that case claim that Wisconsin’s districts are too partisan because the number of seats won by Republicans was too different from the percentage of votes the Republicans received statewide. A three-judge federal panel agreed with the Democrats and now the Supreme Court will hear oral arguments on the matter in October.
Rick Esenberg, President of the Wisconsin Institute for Law & Liberty, explained the challenge in an article for National Review:
In fact, the court in Gill conceded that Wisconsin Republicans had respected traditional redistricting principles. The maps were contiguous and compact. There were no bizarrely drawn districts resembling ink blots or coiled snakes. But because it was possible to draw maps that would probably lead to somewhat less disproportionate results, the district court concluded that the ones that Wisconsin chose were unconstitutional. And therein lies the problem. Because the efficiency gap treats “wasted” votes as a presumptive constitutional problem that must be explained away or remedied, it is, in the end, a requirement of some form of rough proportionality between the aggregate votes for the candidates of one party and the number of seats won by that party’s candidates. It is the absence of that proportionality that turns out to be the “inefficiency” that must be remedied.
But the Supreme Court has rejected any such constitutional mandate of “proportionality.” State legislatures have traditionally been elected from single-member, geographic districts. Partisans are not uniformly distributed throughout a state’s geography, and it is unlikely that the results of numerous individual elections will match statewide preferences. To be sure, the district court in Gill denied that it was requiring such proportionality, noting that there was also evidence that the Republicans had “intended” to benefit themselves. But, as the Supreme Court has noted, this will almost always be the case when a legislative majority draws a new district. Perhaps the natural tendency of politicians to help themselves to an electoral advantage should be checked, but there is no way around the fact that the panel majority chose to do so by imposing a constitutional obligation to, in effect, gerrymander for competitiveness and to compensate for the natural disadvantage imposed by the geographic concentration of Democrats.
Schwarzenegger is promising to match donations made through Crowdpac for the legal challenge to Wisconsin’s legislative maps. The effort has already raised $106,555 of the stated $150,000 goal. The Chronicle said the legal challenge may cost close to $1 million.
Schwarzenegger is also trying to get other Republicans to join the effort.
“He has spent much of the last week on the phone trying to arm-twist Republican members of Congress into signing onto an amicus brief in the Wisconsin case,” the Chronicle reported. “It’s been a tough recruiting effort. While politicians tell him privately that they support him, they’re hesitant to publicly sign something that party leaders think could be their political death warrant.”
As the Chronicle points out, Republicans may be reluctant to agree with Schwarzenegger because they are likely to suffer the most politically if the challenge to Wisconsin’s legislative and congressional district maps prevails.
But another reason Republicans may be reluctant to support Schwarzenegger’s efforts is that if Common Cause and the Democrats win, the Court will be putting itself into a political decision-making process. Esenberg explains how the district court did just that:
In seeking to combat partisanship, the district court — I’m sure, unwittingly — enlisted in a partisan project. Perhaps that’s not surprising. Redistricting involves the balancing of multiple factors — contiguity, compactness, continuity, community of interest, respect for political subdivisions — that often work against each other and make it difficult to define what “normal” districts ought to look like. In straining to decide how much partisanship is “too much,” courts inevitably plunge themselves into our political wars.
Despite the complex nature of redistricting for legislative and congressional races, Schwarzenegger told the Chronicle he wants to keep the argument simple.
“The mistake that a lot of people make is to talk about the details,” Schwarzenegger said in the interview. “Don’t start with the details, because then people see the pine needles but not the forest.”
Despite Schwarzenegger’s effort to keep the issue simple, the Chronicle was a little confused by the details, too. The newspaper reported:
The GOP’s mastery of redistricting has helped them to dominate several levels of government. Since 2008, Democrats have lost more than 1,000 legislative seats across the country. Democrats hold 39 fewer seats in the House, three fewer in the Senate, and can claim 13 fewer Democratic governors than they did in 2007. The GOP controls 34 governor’s seats and dominates all branches of government in 26 states. Democrats control all three branches in only 15 states.
Redistricting occurs every ten years and counting the Democratic losses beginning in 2008 would start the count before the 2010 decennial census. The Democrats’ election losses in 2010 cannot be attributed to redistricting. Also, elections for U.S. Senators and governors are statewide and therefore those losses by the Democrats cannot be attributed to gerrymandering.