Center for Competitive Democracy

In 90% of our congressional elections, one candidate is virtually guaranteed to win before any votes are cast, mainly due to partisan gerrymanders. The Supreme Court just reaffirmed its power to invalidate these anti-democratic election-rigging devices, yet declined to do so (again). So now what?

The narrow issue before the Court this time around was whether the Texas legislature’s mid-decade redistricting violated the Constitution. The Constitution requires that electoral maps be redrawn every 10 years, in accordance with the latest census. The Court held that this doesn’t necessarily mean maps can’t be redrawn more often than that.

What about the fact that 90% of American voters don’t elect their congressional representatives, so much as ratify a result pre-determined by a rigged system?

Well, we know the Court has the power to do something about it. But we also know the Court is unlikely to do anything anytime soon, because the justices can’t agree on a rule for when partisan gerrymanders violate the Constitution.

It would be comforting to think there’s a political solution – that the Republicans and Democrats could agree to stop rigging elections and, for example, appoint a commission of retired judges to do the job of drawing electoral maps.

Unfortunately, politics is the problem, and it’s not likely to produce a solution. The parties flip-flopped on redistricting reform in 2004, supporting or opposing ballot measures in Ohio and California, depending on whether or not they stood to benefit. And as soon as the Court’s most recent decision became public, Republicans were crowing about the victory, while Democrats were planning for payback in states where they control the legislature.

Most commentators have had precious little to say about this. Yes, we need independent commissions (see above). Yes, we should adopt some form of proportional representation to replace our winner-take-all single member districts. But what can average Americans do to regain control of the political process now? How should we vote next time around, knowing the election has been rigged to produce a pre-determined result?

Here’s an idea: vote swapping. American University law professor Jamin Raskin first popularized this strategy during the 2000 presidential election. He suggested that battleground state voters who wanted to support Ralph Nader should swap votes with safe state voters who supported Al Gore. The Nader supporters would agree to vote for Gore in the battleground state, if in exchange the Gore supporters would vote for Nader in the safe state. That way, Nader’s supporters could help him reach the all-important 5% mark for federal funding in 2004, and still help Gore win the election.

Republicans in safely Republican districts should agree with Democrats in safely Democratic districts to swap votes. The primary benefit of this strategy is that it would reduce the effectiveness of partisan gerrymanders, and the incentive for politicians to engage in them. It would also signal to politicians that voters are willing to do what it takes to reclaim control of the political process.

Of course, voters who support opposing parties will be reluctant to swap votes with one another, especially if the explicit goal is to make their candidates less likely to win. But if the strategy were structured carefully, the net effect of vote-swapping in gerrymandered districts is likely to be nil: the same amount of candidates from each party will be elected. What will change, however, is the certainty that any particular candidate will be elected. And isn’t that how elections are supposed to work?

This proposal undoubtedly faces greater agency problems than professor Raskin’s did. Who’s to say Republicans and Democrats wouldn’t welsh on their promises to one another? There’s no guarantee that they wouldn’t, of course. But presumably most voters would participate in the strategy due to a genuine concern for the state of our democracy, and the likelihood of an organized effort by one side or the other to take unfair advantage of vote swapping is probably lower than we might first imagine.

Then again, there is the problem of legality. A number of states threatened lawsuits to stop the vote trading websites that sprang up in the summer and fall of 2000. But as professor Raskin argued at the time, who a person votes for, and the reasons why (excepting bribery), is core political behavior protected under the First Amendment.

Besides, Republicans in safely Republican districts and Democrats in safely Democratic districts should realize that they have one thing in common: politicians from both parties have no incentive to compete for their votes or respond to their concerns. When that’s true of 90% of American voters, it’s time for a new approach.

The New York Daily News recently completed a study of campaign spending by state legislators that illustrates yet another consequence of major party monopoly over our electoral system.

“Since most incumbent lawmakers face little or no political opposition, and seldom lose, they spend lightly on polling, media spots and campaign flyers – and heavily on creature comforts.”

The largest category of expenditures in the 2004 election cycle wasn’t TV ads or fundraising, the Daily News reports, but a catch-all category called “other,” which often includes wining and dining, luxury cars, and travel to exotic destinations. All of this is paid for with campaign funds. A few choice ‘campaign’ expenditures:

State Senate Majority Leader Joe Bruno paid $10,825 to eight upstate liquor stores, $7,990 for restaurants and hotels on a trip to Italy, $6,867 at a gift shop; $5,350 for meals at Palm West on Manhattan’s West side and $979 for dinner at Tribeca’s City Hall;

Senator Serphin Maltese paid $1,075 in food and medical expenses for Charles T.C. Holbrook, his cat;

Assemblyman Anthony Seminerio paid more than $52,500 over the past four years for his car, which he trades in every two years for a new one;

Senator Martin Connor spent $34,582 on a 2004 Jeep Grand Cherokee, $11,966 for a parking garage near his home, and another $25,244 for insurance, gas and repairs; all told Connor spent $71,837 on his car – or 35% of his total campaign spending – at a time when he faced no political opponents.

You’d think these public servants would be contrite when caught spending campaign cash for this sort of thing. Not so.

“Come on, I’m like a priest. I'm on call 24 hours a day,” Assemblyman Seminerio said about his campaign expenses. “People come up to me on the street, in restaurants, at the ballgame, even in church. So as far as I’m concerned, I’m always working.”

“Yes, I admit it, I went to Bali,” said Assembly Majority Leader Paul Tokasz. “I had a very nice meal and I jogged on the beach. But this was a grueling trip.”

Here’s Senator Connor about those parking expenses: “What am I supposed to do? You have to park somewhere!”

For Majority Leader Bruno, it’s enough that he doesn’t stick taxpayers with the bill. “I felt it was more appropriate to use campaign funds, rather than government funds,” Bruno said about his tour of Italian wine country.

And what about Senator Maltese’s cat? “I get an outpouring of political support from cat-lovers,” he says.

No offense to the cat-lovers, but we thought campaign expenses were supposed to be for campaigning. Then again, if you’re an incumbent in a monopolized district, you don’t have to run a campaign. To paraphrase New York’s selfless public servants, “wuddaya gonna do?”

Source: Douglas Feiden, “War Chests as Toy Chests,” New York Daily News, April 2, 2006.