Legislators realize what some voters do not: in many places in the US, voters don’t choose politicians – politicians choose voters

Public opinion polls in Alabama, Georgia, Ohio and elsewhere have all found that a majority of citizens in those places prefer to keep abortion legal. Yet Republican-controlled legislatures in each of those states have, in the past three months, passed laws that would outlaw abortion in most cases.

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The customary reward in a democracy for violating the will of voters is ejection from office. But the legislators in question do not seem particularly worried about a comeuppance in the 2020 election, judging by the extremist quality of their legislating.

The legislators realize what a lot of voters still do not: in many places in the US today, the voters don’t choose the politicians. The politicians choose the voters.

Thanks to gerrymandering, by which political insiders draw distorted legislative districts to ensure that one party will hold that district, the only elections many seated officials have to worry about are primary challenges from opponents more extreme than they are, creating a kind of ideological arms race that is producing increasingly distorted policy, analysts say.

There is a direct line between gerrymandering and extreme policy outcomes like these ‘heartbeat’ abortion bills David Daley

“There is a direct line between gerrymandering and extreme policy outcomes like these ‘heartbeat’ abortion bills,” said David Daley, the bestselling author of Ratf**ked: Why Your Vote Doesn’t Count. “And not only does gerrymandering create the circumstances that elect such extreme legislatures, but it makes it extraordinarily difficult for voters to get rid of them when they go too far.

“This is how gerrymandering sets up minority rule that voters can’t undo at the ballot box. It’s very dangerous, and we need to be taking this very, very seriously.”

As powerfully demonstrated by the passage last month in Alabama by 25 white Republican men of the country’s strictest abortion law, minority rule persists as a defining feature of American governance. Bulwarks of minority rule range from historical factors such as the disenfranchisement of women and non-white people in the US constitution and the enslavement of African Americans, to today’s dark money in politics and voter suppression schemes.

One of the most effective tools, however, for asserting the kind of minority rule on display in the recent flurry of anti-abortion measures – Republican-controlled legislatures in at least six states have passed strict new anti-abortion laws in the past three months – is gerrymandering, analysts say.

The parties’ strategies for gerrymandering, which as Daley’s book explains has been astonishingly effective on the Republican side over the last 15 years, may be about to be rewritten, if the supreme court rules as expected this month on whether the court should even hear partisan gerrymandering cases (as distinct from gerrymandering based, for example, on race).

Facebook Twitter Pinterest Pro-choice and anti-abortion protesters gather in front of the US supreme court building during the Right to Life march on 18 January, in Washington DC. Photograph: Mark Wilson/Getty Images

But whatever the supreme court decides, gerrymandering is too powerful a political tool for the parties to discard anytime soon.

“Uncompetitive districts can allow [legislators] to pursue more extreme measures without any backlash from the electorate,” said Robynn Kuhlmann, an associate professor of political science at the University of Central Missouri who specializes in state legislative elections.

Though Missouri’s legislature last month passed an eight-week abortion ban by a wide margin – 24-10 in the senate, 110-44 in the house – such an extreme measure is, according to numerous polls, far out of step with public opinion. A 2018 Gallup poll found that 77% of US voters supported abortion access during the first trimester of pregnancy, and only 18% think it should be illegal in all circumstances.

The thinktank Data for Progress, using national survey data, concluded that not one state has a majority of voters who support making abortion illegal in all circumstances; it estimated that in Missouri, only 20% of voters support a full ban on abortion.

But Missouri is also a state with what Kuhlmann called “sweetheart gerrymandering” – maps agreed upon between the parties that “maintain the status quo for districts that are essentially uncompetitive”. Tellingly, nearly half of Missouri’s state house elections were uncontested in 2016, “which isn’t actually all that different from other state legislatures”, said Kuhlmann, “but it still illustrates how there’s not even a seat at the table if no one is running against the incumbent”.

Facebook Twitter Pinterest Protesters rally in support of Planned Parenthood in St Louis, Missouri, on 30 May. Photograph: Saul Loeb/AFP/Getty Images

In Missouri, where Democratic voters are largely concentrated in two urban areas, Kansas City and St Louis, on opposite ends of the state, the status quo favors a veto-proof Republican majority.

“If there is no competition, there is no real need for politicians to be more attentive to constituents and be more attentive to public opinion and polls,” said Kuhlmann.

This was the case in Ohio, which passed a six-week abortion ban last month. “I think you can unequivocally state gerrymandering made that happen,” Richard Gunther, professor emeritus of political science at Ohio State University, said of the law.

Ohio’s congressional map, which a panel of judges recently found unconstitutional, “cracked” and “packed” Democratic voters into misshapen districts to ensure a Republican majority of representatives at both the state and federal levels; in 2012, for example, Democratic candidates for the state house received 55,000 more votes than Republicans, yet Republicans won a supermajority of seats (60 out of 99).

As maps predetermined the partisan outcome, the onus of the vote shifted from general elections to the primaries, creating what Gunther called a “dynamic of increased polarization, as more moderate members are ousted by more committed ideologues”.

But gerrymandering means that “those who are willing to adopt extreme positions on abortion are in a much stronger position than those who are moderates”, said Gunther. And in turn, moderates like the former Ohio governor John Kasich, who vetoed a six-week abortion bill twice, “wind up losing battles with the legislature, which is dominated by much more extreme individuals who have real ideological commitments”.

Similarly, the current map and redistricting procedure in Missouri “maintains the clear majority of Republicans in the state legislature and allows them to pursue conservative policies without much resistance”, said Kuhlmann.

That could change, however, with the implementation of new redistricting plan, known as Clean Missouri, which passed with 62% of the popular vote in 2018. The plan would put Missouri’s redistricting effort in the hands of an independent demographer required by law to draw maps ensuring “partisan fairness”. The changes have faced stiff opposition from Republicans, including the governor; since the election, five legislative resolutions have unsuccessfully challenged the plan, which is set to go into effect for the 2020 election.

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“That’s one of the scariest things,” said Daley. “In addition to this extreme legislation that we’re seeing pop up around the country, one of the really frightful things we’re watching is how these legislatures feel that they don’t have to listen to the will of the people expressed in constitutional amendments involving democracy and voting rights.

“They feel that way because they know how insulated they are, and they’re determined to stay that way.”

Because districts will be redrawn again after the 2020 US census, and with the imminence of the supreme court ruling, the battle over gerrymandering is at an inflection point, Daley said. He warned that current Republican efforts to place a citizenship question on the census were an attempt to set up a Republican plan to disenfranchise groups that tend to vote Democratic by changing the basis for allotting legislative districts from overall population count of a certain area to a count of voting age US citizens in that area.

“It sounds wonky, specific and technical, but it has the potential to transform the politics of states like Texas, Florida, Arizona, Georgia and others with large conservative populations but also large immigrant populations,” Daley said.

“The work is well under way.”