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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Thoughts on Gerrymandering

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March 8, 2005

The fuss over vote counting in the past election strikes me as worrying about whether the deck chairs on the Titanic were in their proper place when the ship went down. We have serious problems with the education of voters, voter turnout, and with the structure of our elections and we obsess excessively over whether each vote submitted was counted.

Vote with dementia, vote without even basic knowledge of the candidates or issues, vote under misapprehensions caused by misleading political ads, vote when one candidate has outspent the other five to one, vote in elections in which an incumbent has the race locked up, vote in elections in which a majority of the potential voters do not even cast a ballot, and, using the best computer wizards in the land and bottomless spending, we must guarantee an absence of errors in tabulating your checks or clicks.

Our media focus on vote counting reminds me of a case I teach in corporations, when the busy host of a dinner at home for A-list guests held as a benefit for the local opera, excused himself for the briefest of moments to go upstairs to his study in order to sign a contract selling the $1.5 billion company of which he was the CEO.

Why the odd focus? Perhaps it is because vote tabulation problems affect only a few races, but they are high profile ones -- races for chief executive positions, the President and the Governor of the State of Washington, for example. Perhaps it is because vote tabulation is a problem we can address and the more serious, deeper problems admit of no easy solution.

My personal favorite concern is with the high percentage of pre-determined elections. Ninety-eight percent of all political races are predetermined -- the incumbent wins. In those rare races with no incumbent, the incumbent party candidate wins. This alarming tendency has survived term limits, campaign spending laws, and various reapportionment strategies. The tendency may explain our modest voter turnout for most elections.

The result is caused by winner-take-all elections in gerrymandered districts. The gerrymandering creates protected districts and the winner-take-all format enables 100 percent confidence in the outcomes. We can change both procedures.

Gerrymandering can be reduced by a combining an institution of neutral decision makers with a decision strategy that reduces extreme proposals. Ten states or so have some form of neutral, non-partisan commission that decides voting district boundaries. All states should have one.

Moreover, if the commissions use some of the new decision techniques developed by game theorists, we may get some rational results. The one I favor is the "baseball" or "final offer" method in which the commission hears all proposals from all established political parties and selects the most reasonable, without modification. The procedure reduces the incentive of the parties to make extreme proposals. Another variation, "night baseball," requires the commission to accept whichever parties' plan is closest to the commission's plan (or that of a neutrally appointed expert).

Also helpful would be a more parsimonious use of winner-take-all elections. Elections of members to federal, state, county, and city legislatures could use multiple seat elections. Multiple seat elections also make possible cumulative voting systems that guarantee minority representation.

In any event, we need to refocus some of our energy away from mechanical tabulation to the inherent structure of our system of selection. Accuracy in depicting the results of a pre-determined election is a modest virtue at best. I am sure that the votes in Chinese national elections, with one candidate from one party running for any one seat, are accurately and painstakingly counted.