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Mind The ‘Efficiency Gap’

Vote signs outside a City of Madison (Wisconsin) Polling Place
photo by Emily Mills

I started this century as a Democrat and a New Yorker. I voted for Al Gore when the millennium dawned, and (although it was a closer call) for John Kerry in 2004, both times against George W. Bush.

In the summer of 2008, after presidential primaries were over, I became a legal resident of Florida and registered as a Republican there, in my heavily Democratic county of Broward. But in an excruciatingly difficult decision for me, I cast my vote for Barack Obama in that fall’s election. Maybe it was John McCain’s floundering reaction to the financial crisis, or maybe it was really the chocolate cake that a co-worker promised to bake for me if I made what he considered the right decision. I don’t think I’ll ever know.

I do know that before Obama’s first term was halfway through, when he joined a heavily Democratic Congress to pass a raft of legislation with which I strongly disagreed, I promised myself that I would vote for a lobotomized ape before I would ever vote for a Democrat in another federal election. Mitt Romney and Donald Trump received my next two presidential votes. I thank you in advance for not commenting about how you think I kept my promise.

My political evolution is not especially interesting, but it does demonstrate that people are not born members of one party or another; in fact, affiliation ebbs and flows with the forces of history. My race, ethnicity, gender and place on the income distribution scale did not change notably between 2000 and 2010, but I moved from the Democratic column to the Republican column in both my mind and the voting booth.

In the broader society, similar changes happen regularly – not often, but with great impact when they do. When I was growing up, the “solid South” meant a Democratic wall that was all but impenetrable for Republicans. Parts of the South rallied behind Democrats Jimmy Carter and Bill Clinton as late as the 1990s. But Gore could not even win his own state of Tennessee, and Florida cost him the White House. This year Hillary Clinton did not carry a single state south of Virginia and east of New Mexico.

She also lost the Democratic industrial strongholds of Ohio, Pennsylvania, Wisconsin and Michigan. In the broader society, large groups that were once reliably Democrat – including Catholics, working-class whites, southern whites and farmers – have become mainly Republican, while others, including Latinos, affluent urban and suburban whites and New Englanders, have gone the other direction.

So it will strike some people, as it does me, as inappropriate that a three-judge federal court panel recently ruled Wisconsin’s state legislative districts unconstitutional because the boundaries gave Republicans too great an advantage. Two of the three judges cited an “efficiency gap” that they say indicates the Republican-controlled Legislature jiggered the boundaries to its own advantage, as it almost certainly did. The question is whether this violates either First Amendment guarantees of the right to petition the government or the Fourteenth Amendment’s promise of equal protection under the laws.

The federal courts have been clear for most of the last 50 years that drawing political boundaries to deliberately disadvantage racial or religious minorities is forbidden. It has been much less clear whether there is a constitutional issue involved in political gerrymandering. (At the state level, some courts – notably including Florida’s Supreme Court – have found that there is.) In many cases, the government can look at someone and identify with reasonable precision his or her racial, religious or ethnic background. On the other hand, people can change parties any time they want, or refrain from choosing one at all. And they are always free to vote for the candidate and party they prefer at that moment, regardless of their affiliation.

The Wisconsin court ruling seems to overlook the repeated success of Republicans in statewide races, including most recently Sen. Ron Johnson’s comeback victory over Democrat Russ Feingold. There was no districting involved in these statewide races. Republicans have been winning recent elections in Wisconsin because Wisconsin has been trending Republican. If the voters of Wisconsin don’t like the way their legislators are drawing district boundaries, they can always elect new legislators.

As a matter of fact, the U.S. Constitution says nothing at all about political parties. Some of the founders hoped to avoid them entirely, but factionalism immediately produced the Federalists and the Democratic-Republicans. It was widely accepted then, and should be now, that the party that voters place in power will exercise that power. If voters don’t like the result, they can replace the party in power in due course. Ultimately we own the parties; they don’t own us.

The only appeal to the Wisconsin ruling is directly to the Supreme Court, which is now evenly divided. But on the assumption that the Senate will act early in 2017 on a nominee put forth by incoming President Trump, I hope the Court takes the case, and I hope the Wisconsin court is overruled. There are no disinterested angels available to draw our political maps. There are only the representatives we elect, and they ought to be accountable to voters rather than to the courts.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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