Prop 50, The Better Of Two Bad Choices

Legal Issues

from the with-held-nose-because-things-stink dept

It’s a damned-if-you-do, damned-if-you-don’t choice appearing on the California ballot this Election Day: choose gerrymandering, or have gerrymandering chosen for you. It’s an ugly decision to be forced to make. But, for the moment, at least, one that needs to be made.

At issue is Proposition 50, which would change the law affecting how California Congressional redistricting is done in the near term. Under current California law, it is done after every 10-year census by an independent commission tasked with balancing districts, subject to certain criteria imposed by state and federal law. State law, for instance, requires neighborhoods and local communities be kept together to the greatest extent possible, and the commission is ordinarily prohibited from considering political parties, current office holders, or prospective candidates when it draws its district maps.

The problem is that not every state plays by the same rules. And, in particular, states like Texas have now openly taken steps to redistrict again, even though there has been no new census to provide a basis for making any changes to their existing maps. Worse, the changes they want to make are changes deliberately intended to disadvantage Democrats and instead produce, statewide, as many Republican representatives as possible, irrespective of any local community preference to the contrary, in order to ensure Republican control over the House of Representatives in DC, even if nationwide the party would lack the support to be a majority. In other words, these states, controlled by Republicans, are trying to force the House majority into Republican hands by manipulating the Congressional representation of the people in their own state.

In response, the California legislature put Prop 50 on the ballot primarily to fight fire with fire. If these red states try to artificially inflate the number of Republicans to Congress then California will change its law to produce as many Democrats as possible in order to try to neutralize the Republican advantage those red states are trying to engineer.

There are, of course, strong reasons not to change California’s law this way. Gerrymandering is an incredibly anti-democratic policy, no matter who’s doing it. It dooms some communities to always be in the political minority, even when a fair measurement of the state’s overall political will should result in these minority preferences being entitled to at least some representation. Setting aside a principled approach to apportioning congressional seats that goes out of its way to not gerrymander, to instead join these other states in a race to distort election results is hardly something to enthusiastically cheer.

There’s also a chance that it could potentially backfire. While the goal may be to make sure that overall Democratic representation in Congress is preserved, it’s possible that these manipulations could result in weakening otherwise strong Democratic districts by now remapping them to include more likely Republican voters. Of course, the same is true in states like Texas, which may be sabotaging Republican districts by rolling into them more voters more likely to vote for Democrats.

But there are also points in favor of this plan, and they seem to, on balance, outweigh those against as well as ameliorate some of the concerns. For one thing, the change Prop 50 would bring is inherently temporary. Prop 50 has a built-in sunset provision so that, no matter what happens, we go back to the old system after the next national census in 2030. Prop 50 would only cover the 2026, 2028, and 2030 elections, and if we really hated it after 2026 there’s nothing that would keep us from passing another proposition to end it sooner, apart from the logistical burden of running another ballot measure. Which is not negligible, but if the politics really turned against the change, it is still reversible. After all, the current law Prop 50 would change is itself is the result of its own ballot measure.

And that current law itself offers yet another reason to vote for the new one: because there’s actually a problem with the current one. Not in terms of its general approach, which tries to use a politically neutral committee to do apportionment so that communities can best be represented by those most accurately reflecting their political will. The problem with this law is that it hardcoded into the rules for how the committee members should be appointed a requirement that the membership should always include some number of Democrats, and some number of Republicans, as well as some number unaligned with either. A better way to do it would have been to require some number of people affiliated with the two most popular parties, whichever they may be, and the rest be unaffiliated. By hardcoding either party into the law however it means that the law can end up out of sync with the political makeup of the state as partisan politics evolve.

In fact, that’s the problem driving Prop 50: partisan politics have evolved. While it may have seemed, back in 2010 when the current law was passed, that Democrats and Republicans were timeless political forces never subject to change, history has shown otherwise—which is the problem that Prop 50 is responding to. Even though Democrats and Republicans had been around for decades by that point as generally stable parties, now that the Republican party has essentially become the new American Nazi party, continuing to give it a potentially outsized seat at the table seems much less advisable, not just in terms of giving it influence but also because it means that the system itself can’t adapt to any evolutions in the partisan landscape. If new parties become popular, perhaps because people are disenchanted with the old ones, the system won’t be able to treat them as major players so long as the old players get the benefit of this built-in advantage in how they get to participate in the redistricting system.

But the more immediate problem is that, given the way Republicans have changed, giving Republicans any political power threatens the entire democratic system. It would ordinarily be unthinkable to manipulate an electoral system to favor or disfavor a party—except that’s the business Republicans themselves are now in. And adopting a principled position to not engage in such practices unfortunately has the practical consequence of yielding to those eager to weaponize them the power to do so, and in a way inconsistent with the continued function of our representative democracy.

Allowing Republicans to grab gerrymandered power now surrenders our nation to them, which is not a decision we can afford to make if our nation is to have a future. At this moment in history there are existential reasons to ensure that Democrats can get to Congress in strong enough numbers to exert political power instead. Not because Democrats are necessarily all that great, but because Republicans are openly committed to autocratic policies that upend our constitutional order. If our federal system is going to be defended, the party not going out of its way to attack it at least needs a shot at getting into office in sufficient numbers to protect it.

And because Democrats aren’t just the current minority party in those red states but more often than not the party preference of minorities. The goal of getting them elected isn’t just to further that specific party but to make sure that communities favoring them can simply be represented in Congress at all. As long as Republicans have the power to frustrate that representation, it’s important that the rest of us make sure to have their backs so that everyone can participate in directing the future of our country.

Furthermore, the proposition does a bit more than just change how California’s congressional districts are to be mapped for the next few election cycles. Although it is mostly symbolic, the proposition declares its support of the principle that congressional apportionment should be done by “fair, independent, and nonpartisan redistricting commissions nationwide.” It further declares that there should be federal legislation and even a constitutional amendment to ensure that this approach become the rule nationwide that all states must follow to end, once and for all, the gamesmanship that these red states are engaging in, so that no state is able to frustrate the political will of their people in pursuit of their own disproportionate power ever again.

Filed Under: california, fairness, gerrymandering, politics, prop 50, redistricting, texas