UNDEMOCRATIC MAP DRAWINGS

What is the purpose of Congress or, for that matter, of any legislative body such as a state legislature? The legislative body makes the laws. And what is a law in terms of this function? Law is the authoritative policy pronouncement of what the government will do. The legislature decides what the government will do. The executive – the President at the federal level – does what the legislature has decided. Are these legislatures legitimate in fulfilling this function? In our system, the legitimacy of the legislature, be it Congress, state legislature, county commission, or city council, is based on the fact that the members are voted to their positions by us, the citizens of the respective jurisdiction. The members represent us and, by and large, if they want to keep their jobs, they will roughly decide in such a way that reflects the wishes of most of the voters who sent them to their positions. I am probably not conveying anything that you don't already know, but I go over this elementary civics material to draw a context for what follows.

In the voting process, the assumption is that all citizens have equal voice in determining who will be chosen to represent a certain jurisdiction. Let me focus on the House of Representatives at the federal government level, although much of what follows also pertains to state legislatures. Each state is divided into Congressional districts and each district is represented by one representative. On average, there are about 700,000 citizens per district. So each representative represents about 700,000, although this number varies from district to district. The Constitution provides for each state to have at least one representative even if the population of the state is less than 700,000. And, of course, the actual numbers of each district will vary in order to accommodate the demographic realities of the state. Besides, the exact population of any state is not exactly divisible by 700,000, so the math of distributing population among the number of districts a state has will, by necessity, cause the 700K number to vary. Be that as it may, let us assume, for the point I am making in this posting, that each district has 700K. And with that ratio, 1 representative to 700,000 citizens, let us imagine a fictitious situation.

The situation has to do with a made up state that has exactly 2,100,000 people. Simple division tells us the state, therefore, has three Congressional districts with each district having within its boundaries 700,000 citizens. We will call the fictitious state South Huma. With only 2.1 million people, the state is considered small. The only urban center exists in Congressional District One. In the last Congressional election, 2012, District One voted 90% for the Democratic candidate and 10% for the Republican candidate. District Two voted 49% Democratic and 51% Republican. And District Three voted 49% Democratic and 51% Republican. Across the entire state, the Democrats won roughly 62.7% of the vote and the Republicans won 37.3% of the vote, yet the Republicans won 2 seats and the Democrats won only one seat. While my example exaggerates what actually took place, the idea is that if you draw Congressional districts just so – a process known as gerrymandering – a party can lose at the ballot box in terms of actual votes of citizens and win a majority of seats available. In principle, that is why in the last Congressional election, the Democrats received one million more votes nationwide than the Republicans and yet did not gain control (win a majority of the seats) in the House of Representatives.

How are the district lines drawn? Well that task – some might say, “opportunity” – falls to the respective state legislatures and they use primarily the national census figures that are reported every ten years. That is, every ten years, each state legislature goes about figuring out how the Congressional district boundaries should be designated. This is a highly politicized process since where those lines are drawn will determine the fate of individual politicians – will he or she have to run in a district that is favorable to his/her re-election chances? Also, the ability of a political party to advance its policy positions will be dependent on how many members of the respective legislative body belong within its ranks. So, the party in the majority of any given legislature will use its numbers to insure that the boundary lines will be drawn favorably. They will be lines that help insure that their members will be re-elected and, perhaps, be able to defeat members who belong to the opposition party. Both parties, when given the opportunity, have done this. Since the Republicans won big in the 2010 elections, they got to draw the lines that resulted from the 2010 census figures in twenty-seven of the states (a figure that jumped to twenty-eight in 2012 as the process concluded). That is the number of states in which the Republicans controlled both chambers of the legislature. Some argue that the practice has become too skewed in favor of the Republicans. They go on to say that districts are so biased, creating such secure Republican districts, that that party does not have to worry about losing control of the House of Representatives. But how does this practice affect the quality of our democracy?

The case of South Huma illustrates a fundamental problem, one that undermines the very democratic nature of the system. After all, when people vote, their votes should be equal and the result should reflect the will of the majority. And yet, the current composition of the House – “the people's House” – does not reflect the majority. A lot of the gridlock in Congress today can be attributed to that fact. Yet there are efforts in various states to address this undemocratic aspect of how we choose our representatives.

In Florida, for example, the state constitution has a provision that drawing of district lines will not reflect political aims and that, specifically, lines should not be drawn in order to insure or protect an individual or party winning a particular seat. The League of Women Voters brought suit against the Florida Legislature claiming that the Republicans violated that provision and they want to question members in court about their actions during the reapportionment process that ended in 2012. The Legislature countered that it is immune from such questioning. Such questioning would place a “chilling” effect on legislators in the performance of their duty and, as such, the courts ordering them to testify would amount to a violation of the separation of powers between the Legislature and the courts. In an opinion just issued, the state's supreme court decided in favor of the League. The Court agreed that forcing members to testify would have a chilling effect, but that that was the very idea of the constitutional provision. Therefore, the members will have to go before a court and, under oath, explain their motivations and actions in drawing the lines as they did.¹ Will this make the process more responsive to the democratic wishes of the people? We will see. As it is, the voice of many urban voters, as illustrated in my fictitious state, are being silenced and rendered as wasted.

When one's vote is rendered useless due to where one happens to live and it is done as a result of a systemic condition, the very constitutional integrity of those voters comes into question. For federalists, constitutional integrity is a central procedural value and, therefore, a civics class that uses the federalist construct to guide its content would be well within its purview to study this current anomaly.

1Farrington, B. (2013). Supreme Court: Lawmakers must testify on new maps. Tallahassee Democrat, December 14, p. 3A.

AN IMPORTANT MODERATION

In viewing the significant developments of American democracy, one development that receives limited interest and focus is the transfer of American federalist thought from one based on a religious foundation to one that became secular. Before expounding on this theme, let me share what caused me to think of it. On the 60 Minutes broadcast of December 15^th there was the story of the Copts of Egypt. This Eastern Orthodox religion has survived in a nation that is predominately inhabited by Muslims, for over 1,000 years and an overall history of about 2,000 years. The Coptic followers have been practicing their religion since the earliest days of Christianity. The name Copt originally meant people of the area that is now Egypt. They even claim to have initiated the ceremony that eventually became the mass, a central ritual of the Catholic Church and of other Christian denominations. Today they account for about 10 % of the Egyptian population and are the largest Christian sect in the Middle East. Recently, due to their backing of the Egyptian military's coup in overthrowing the Muslim Brotherhood supported Morsi government, followers of the Brotherhood launched massive attacks on 40 Coptic places of worship causing extensive damage. This was an event that happened in the midst of other episodes in which the Copts have been the targets of abuse either from Muslim extremists (for example, the Nag Hammadi massacre in which eight Copts were killed on January 7, 2010) or another massacre that was instigated by the Egyptian military on Copt protesters in the city of Maspero on October 9, 2011. This last attack killed 27 Copts. As Americans view such reports, we might ask: why are we in the US not like that? What is it about American politics that allows a level of tolerance so that our cases of religious attacks have been held to a limited number? Of course, the Egyptian example might be extreme and there are other nations along with the US that enjoy religious harmony. Each nation has its story to tell in this area of concern, but what is our story?

These questions need to be asked while keeping a very important historical fact in mind; that is, the origins of the American society were highly influenced by religious beliefs. We should remember that early settlements were established by highly religious English men and women. The earliest settlements were small and were mostly inhabited by like-minded individuals. As the settlements grew, eventually folks who did not share in the predominant beliefs began to be part of these communities and this eventually led to conflicts including those motivated by religion. Early examples of religious strife took many forms. There were cases of discrimination against members of non-preferred religions, violent confrontations, lynchings, destruction of property, and the like. But these episodes did not characterize the typical relations between citizens of differing religions. They were more often the exceptions. There might be, in our early days, state sponsored religions but, by and large, as populations began to grow to substantial levels, there developed a general understood sense of “live and let live” among people of differing faiths.

I am sure there were many reasons for this general development. But I believe that one such reason is the historical development in which Americans began seeing our basic national agreements – our constitutions – as no longer being covenants, but instead being compacts. To remind you of the distinction: a covenant is a binding agreement among a people in which each member promises, in the most solemn fashion, to abide by spelled out provisions in the agreement. The promise is so binding that it is to be kept no matter what any one party does – at least that is how this type of commitment was defined. This could be a marriage vow, an agreement to engage in a collective activity such as the founding of a church, or the formulation of a government. The promise is further “sanctified” by calling on God as a witness to the promise. The origins of covenants, way before they made their way to American shores, date back to prehistoric times, but Western traditions surrounding this binding process are probably mostly influenced by the Judeo tradition (the Sinai or Mosaic Covenant, 11^th century BCE). A compact is the same as a covenant only without calling on God as a witness. This is a significant secular turn and one that reflects a basic evolution of the attitudes on the part of Americans, a turn that reflected attitudinal changes and then promoted them.

At the time of the American Revolution, there were two views concerning the adoption of binding agreements: one supportive of covenants and the other supportive of compacts. If we look at the language of the Declaration of Independence, 1776, that document is a covenant. If we then look at the language of the US Constitution, that document is a compact. I believe that this was an emblematic change of perspective; that is, that the years between the writing and adoption of these two documents coincided with a significant change in the opinions of Americans – change that, at least when it came to forming a government, covenants were no longer needed to bind parties. Instead, a preference for compacts took hold. One should remember that these years were focused on these types of issues since we were not only forming an national government, but also highly involved in forming state governmental structures as well.

One aspect of these types of agreements, that pertains to both, refers to how such an agreement is either changed or terminated. One might roughly measure how serious one views either type of agreement by how easily the agreement can be done away with or how easily it can be changed. For example, can a covenant or compact be dismissed or voided by the parties that agree to such a change? An answer to that question must include the notion that voiding or changing the agreement needs to be difficult – very difficult. Short of that, the commitment does not have the binding quality that is needed to allow the parties involved to become invested in either the process or the final product. Consider the process by which our constitution, a compact, is amended. Without going over all of the possible steps, the bottom line is that the change has to be overwhelmingly supported by the American people – at least that is what the process is supposed to guarantee. In short, both in the case of a covenant or a compact, the idea is that the agreement is supposed to be made in perpetuity or until the conditions that led to the agreement still exist. Some might consider that given the fact that it has become relatively easy to obtain a divorce, the marriage agreement has lost its status of being a covenant or a compact and, in fact, common parlance has started calling the agreement the “marriage contract.” Also, the argument has been made that state constitutions have become too easily amended by public initiatives and that the integrity of many of them has been compromised by the addition of non-constitutional provisions such as whether or not the state should support rapid transit.

According to the scholar, Daniel J. Elazar,¹ one of the contextual developments of forming our national union under the provisions of the 1787 constitution was the acceptance by the nation of the Federalist² view. That is, in terms of our sense of political morality and all that that entails, we needed to place in lesser priority local orthodoxy about such matters – and that included strong religious biases – and accept a notion of tolerance. If we were to consider ourselves a single people, then we needed to restrain ourselves from insisting that all see religion from the same “lenses” of our particular religious bent. We needed, instead, a more secular view of our political commitments and that began by defining our basic constitutional agreement in those secular terms, at least as that view pertained to the national arena of politics and governance. I don't know how conscious the average American was over such a shift in our perspective, but once it was, in effect, codified in our constitution, including the First Amendment, the process began to change our national sense of what was legitimate in these concerns. The formulation of a governing agreement changed from one of being “higher, higher” law to one being “middle higher” law. The view of governing was seen more as being a human endeavor than an expression of God's will on earth.³

On a more practical level, our governmental perspective became less a form of religious expression and more of one that described our overall civic relation as a partnership. And as such, politics in a federalist sense became an expression of sharing. Ironically, secular sharing placed the emphasis in traditional federalism back on the local level and shied away from central authority and power. This, then, is a compromise. On the one hand, the shift emphasizes the transcending values that made up the American ethos: liberty, equality, self-reliance, communal membership, and the like. On the other hand, social and political focus would remain with local conditions and institutions in which more parochial concerns could be more readily expressed, but in a moderate way. The newer outlook could be expressed as: “I can dislike you and avoid being social with you if you don't see the Almighty in the same way as I do, but you do have your right to be wrong.” This compromise gave the early Americans a way to find the mid-point between religious fervor and secular demands to accommodate the diversity that was becoming ever more a characterization of American life. It has been proven, through our development, that we have evolved from this initial reluctant form of tolerance to one in which many take on an embracing posture of those who believe differently. Our constitutional way of life, to this day, is replete with institutional structures and processes that reflect that compromise and has allowed us to avoid the ugly possibilities that exemplify the sectarian relations in many countries such as Egypt. Through the years, we have become more and more inclusive and even tend to define what it means to be American by incorporating a positive and accepting view of others' beliefs. That process is still taking place.

1As with the previous posting, the ideas expressed in this explanation of the distinction between covenants and compacts reflect the insights of Daniel J. Elazar (1934-1999).

2By Federalist, I am referring to the ideas advocated by those who supported the new national constitution.

3In terms of this debate, the work of Thomas Jefferson cannot be overstated. For example, his Bill for Religious Freedom in Virginia had enormous influence on the minds of Americans.