Chapter 32. Bipartisan Gerrymandering: Miller v. Ohio. To the conventional wisdom the term Bipartisan Gerrymandering is an oxymoron.

Transcription

1 497 Chapter 32 Bipartisan Gerrymandering: Miller v. Ohio To the conventional wisdom the term Bipartisan Gerrymandering is an oxymoron. According to this school of thought Gerrymandering isn't gerrymandering unless one of the major parties has control of the districting process and uses that control to hurt the other party. If the leaders of the two parties in a state legislature can work out a compromise as to which candidates are to be favored, and craft a plan to carry out that political decision, then it may even be characterized as an act of bipartisan statesmanship. That is why we prefer to talk about discriminatory districting, and to remind the reader that partisan gerrymandering is only one species of discriminatory districting. One could make a case for the proposition that bipartisan gerrymandering is an even greater barrier to democracy than partisan gerrymandering, because under the latter there is the possibility of change over time. Under the former, however, one may end up with a totally closed system. We are advised that in New York state, for example, that the major parties have worked out a modus vivendi whereby Republicans redistrict the Senate and Democrats redistrict the Assembly. This virtually assures perpetual Republican control of the New York Senate and perpetual Democrat control of the New York Assembly. 1 Ohio Congressional Districting History Since 1950 Ohio provides a good case study of how discriminatory districting of both partisan and bipartisan varieties has worked over the past century to degrade the value of the ordinary citizen s vote. In Chapter 23 we recounted the 38-year history of the congressional districting plan passed by a Democrat-controlled General Assembly in Let s pick up on that history,

2 498 beginning in Ohio was allotted 23 seats in Congress for the decade of the 1950s the same number it had throughout the 1940s. The 1913 plan, still in effect, contained only 22 districts, so for the elections of , the state had one congressman-at-large. In 1950, Republicans achieved a 15-to-7 majority in the Ohio congressional delegation, 2 so all they now had to do was lock-in their incumbents. This they did. Following the 1950 elections, Republicans dominated the Ohio congressional delegation for 17 successive elections. A Democratic majority on the delegation did not reappear until The three censuses occurring during those decades further shrunk the delegation and the 1990 census would cut it to 19 members. The 1992 Bipartisan Compromise The 1990 census led to yet another reduction in Ohio s congressional delegation, this time from 21 seats to 19. Once again power was divided at the statehouse, and again it was a Democrat-controlled House and a Republican governor and Republican-controlled Senate. Neither party could impose its will on the other in the drawing of new congressional districts. Based upon earlier experience, it was expected that each party would give up one seat in the process of arriving at the new bipartisan compromise plan. Newspaper speculation was that Rep. Clarence Miller of the (old) 10th CD would be the incumbent the Republicans would sacrifice if none of their other nine incumbents would retire voluntarily. Miller made it clear to all that he did not wish to retire. During the fall of 1991, Ohio House Speaker Vern Riffe emphatically stated that the Democrats would give up only one seat; that one Republican incumbent would have to be forced out; and that which Republican it was would be for Republican Senate President Stanley Aronoff to decide (in private conversation with Miller Riffe said That's Stan s

3 499 call ). Fratracide on the Democratic side was averted when both speculative Democrat sacrifices abruptly opted for retirement. The legislature put off action on congressional districting until February 3, 1992 when the Senate finally held its first hearing on Senate Bill (S.B.) 292 sponsored by Sen. Richard Finan. Miller and some of his supporters came to the hearing and testified against the bill. Its political effect was to provide favorable districts for all incumbents except Miller and Democratic Rep. Douglas Applegate who were paired in the same district on terms advantageous to Applegate. Then followed seven weeks of the typical partisan and bi-partisan wrangling and horse trading that produces legislation in a pluralistic democracy. Amended Substitute Senate Bill 292 passed the senate 28-5 with bipartisan support and bipartisan opposition. It amended the Ohio Revised Code to establish the congressional district boundaries in effect for the decade It is shown in Figure 32.1 (Figure 32.1) Miller's Fate Clarence Miller, a Republican, was first elected U.S. Representative from the 10th Congressional District in 1966; the first election held after Ohio s congressional boundaries were realigned to satisfy the one person-one vote mandate of Wesberry v. Sanders. He represented Ohio s CD 10, as it was from time to time constituted, continuously from that time until January 3, As shown in Figure 32.2, Am. Sub. S.B. 292 split former CD 10 among four new districts: (Figure 32.2)

4 Miller s residence and 103,461 people in Fairfield County were included in new CD 7, then represented by incumbent Republican congressman David Hobson of Clark County. 2. Some 218,701 people were shifted to new CD 6, then represented by incumbent Republican congressman Bob McEwen of Highland County. As shown in Figure 32.2, the new CD 6 then contained 342,680 people (60.0 percent of the total) who had also been included in the former CD 6; 218,701 from former CD 10 (38.3 percent of the total) and 9,520 (1.7 percent of the total) who had been included in former CD Another 186,706 people were assigned to new CD 18, which was then represented by incumbent Democratic congressman Doug Applegate of Jefferson County. 4. The remaining 17,607 people were assigned to new CD 12, which was then represented by incumbent Republican congressman John Kasich of Columbus. (Figure 32.3) With the loss of two Ohio seats, district numbers 20 and 21 were rendered obsolete. Former districts 20 and 21 were located in the far northeastern part of the state. The numbering pattern used throughout the1980s was not retained in this redistricting, however. Former CD 10, represented by Rep. Miller for more than two decades, ceased to be the designation for a southeast Ohio congressional district and instead became the designation for a new district in Cuyahoga County. The numbers of the districts being voluntarily vacated by retiring congressmen Eckart and Pease (11 and 13) logically would have been given to the new districts in Cuyahoga County. But the numbers of the new districts in Cuyahoga County were 11 and 10. This all constituted evidence that Miller's district had been consciously and specifically singled out for annihilation.

5 501 The congressional districts as drawn by Am. Sub. S.B. 292 presented Rep. Miller with a checkmate gerrymander: like a king check-mated in a game of chess, any move he made, or no move, would require his running against a well-entrenched incumbent in a district where the advantage would lie with the other incumbent. Other than Congressman Miller, the plan was drawn to protect all incumbents both Republican and Democratic and was defended on that ground by Rep. Sheerer and other behind-the-scenes negotiators. Aronoff, Riffe and Sheerer publicly stated that one Republican congressman would have to be singled out for elimination in the downsizing of Ohio s delegation. Miller was fingered as the Republican sacrifice to keep the Ohio delegation in political balance. He entered the Republican primary for new CD 6, running against incumbent Republican Rep. Bob McEwen and lost by 286 votes out of more than 65,000 cast. Miller decided to take the matter to court. Miller s Co-Plaintiffs For lead attorney Miller engaged David V. Stivison, a native of Hocking County in Miller s Appalachian district. Following graduation from Harvard Law School, Stivison had worked for two major law firms before opening his own office in Philadelphia. Of counsel was John B. Anderson, independent presidential candidate in 1980 and now Distinguished Visiting Professor of Law at Nova Southeastern University in Fort Lauderdale, Florida. Since this suit was unprecedented and, if successful, would have an impact comparable to Baker v. Carr, additional individuals and parties who had plausible grounds for complaint were invited to join as co-plaintiffs. Other Individual Candidates. Other individual candidates for Congress past, present and future challengers of both major parties suffer discrimination when the State crafts districts to

6 502 facilitate re-election of their favored incumbent-opponents. From Columbus and Franklin County there were two unsuccessful Democratic challengers from 1990 and 1992, Robert J. Fitrakis and Thomas V. Erney. Since 1966, Columbus sizeable concentration of inner-city Democratic voters had been evenly split between CDs 12 and 15 so that Democratic congressional candidates had little prospect of success in either district. To the south and west, several strongly Republican counties were strung together into a new CD 7 which provided a safe harbor for congressman, Michael DeWine. In the north-central Ohio isolated Republican counties were strung together to insure that newly-elected congressman Michael Oxley would have nothing to fear at election time. Plaintiff Donald Hollister had challenged DeWine s predecessor Clarence J. Brown Jr. in In Cleveland and Cuyahoga County Plaintiff Robert L. Woodall was one of many challenger also-rans who attempted to achieve higher office without the blessing of the power brokers in Columbus and Cleveland. Nearby, in the industrial Mahoning valley, Plaintiff Salvatore Pansino, a Republican, went through the motions of challenging Democratic incumbent James Traficant. At the other end of the state, in Cincinnati/Hamilton County, Plaintiff Steve Grote ran a strong race in a district he was not expected to do well in. Minor Parties. When the leaders of the two major parties, in collusion, craft a districting plan to facilitate election of the candidates usually, but not always, the incumbents they favor, the most obvious persons harmed by this action are the challengers of both major parties. Therefore, in Miller v. Ohio most of the plaintiffs were major party also-rans who saw their already dim prospects of success further diminished by boundary manipulation of the districts they were running in. By the same token, another category of persons harmed by a collusive, bipartisan gerrymander are the candidates of parties other than the Democrats and Republicans.

7 503 The best representative of this group of plaintiffs during the last two decades of the twentieth century is the Libertarian Party. The Libertarians have rarely elected anyone to public office (in considerable part due to the SMD-plurality electoral system prevalent in the United States) but they have maintained a small but persistent presence in our body politic, reminding us that Democrats and Republicans do not speak for everybody. Because Libertarians, unlike many ethnic groups, are not geographically concentrated, they are unlikely to elect many people to public office in an SMD-plurality system. But that does not negate the possibility that should they become a plurality in one or more of a state s SMDs, discriminatory districting by the major-party power brokers would crack them into politically impotent enclaves. Therefore, the Libertarian Party of Ohio, when invited, readily signed on as a co-plaintiff in this case. Independent Candidates and Voters. A final category of plaintiffs in a suit challenging a collusive bipartisan gerrymander are independent candidates for district-wide office and a large number of independent voters. Unlike successful minor party candidates, successful independent candidates are not a rarity. Maine and Connecticut have elected independent governors within the past two decades. Ohio elected an independent member of Congress for two terms in the 1950s. More significant, perhaps, than independent candidates are independent voters. There are several ways to define an independent voter. Legally, in Ohio, an independent voter is any voter who has never voted in a party primary election. That would constitute a majority of voters in some counties. Yet it would exclude many voters with strong partisan feelings or loyalties but who do not vote in party primaries. A better definition would be any voter for whom maximizing of the number of candidates of his party who get elected is not as important as having the maximum impact of his own vote. One could contrast this attitude with that of a partisan voter who would be willing to live in a district which is a throw away to the other party and in

8 504 which his vote has little prospect of affecting the outcome, if it were part of a plan designed to inefficiently distribute the votes for the other party and reduce the number of its candidates elected. If we use this better definition, we would find there are many independent voters, because most voters who consider themselves Democrats and Republicans also want their votes to have the maximum impact. To make the point that there are many independent voters who (often unwittingly) suffer from dilution of the power of their votes due to partisan and bipartisan gerrymandering, the Miller plaintiffs included Diana Kukor, an independent voter who is not a member of the Republican, the Democratic nor any other political party. In 1980, Ms. Kukor had been Ohio chairperson for John B. Anderson, the independent candidate for President. Her situation is described in the part of the complaint applicable to independent voters: A political gerrymander consistently degrades the influence of independent voters by deliberately drawing each district to produce a lopsided contest that favors a specific major party candidate whether Democrat or Republican and assures that independents votes count for very little. 3 * * * Miller v. Ohio was filed in the United States District Court Southern District of Ohio Eastern Division on 18 November, But the groundwork for such a case had been laid three years earlier when publication of the 1990 census data confirmed that Ohio would lose two congressional seats in the 1991 reapportionment. Publication of that data made possible the first and absolutely essential component of that groundwork: crafting of alternative congressional

9 505 districting plans for the state of Ohio for the decade of the 1990s. We therefore turn to a consideration of such plans and a comparison of them with the plans crafted by the political powers-that-be. Notes 1 Wells, David I. Article submitted to the New Republic, Jan. 14, The twenty-third seat on the delegation was held by Independent congressman Frazier Reams, who ousted a Democratic incumbent in 1950 and was, in turn, ousted by another Democrat in Miller, et al v. Ohio et al. Op. cit. note 4, p. 28.