Wednesday, January 20, 2010

Gerrymandering in Massachusetts

Everybody has an opinion about yesterday's election in Massachusetts. To some, this was a referendum on health care, with the voters telling President Obama where to stuff it. To others, this was Coakley's fault, or Brown's doing, or likely a little bit of everything.

I don't have any particular insight about what happened yesterday. What I do find intriguing is the notion that a Republican candidate running in a state-wide election for a seat held by a Democrat for generations -- this is Ted Kennedy's seat, for heaven's sake! -- could in fact win. This is what Senator Brown did.

I can't say that I am happy about the outcome. But I will say this: this is a wonderful teachable moment for those of us teach election law.

Here's the story we have heard a thousand times: few congressional races remain competitive, so that elections are a sham and voters have no real choices. What American Democracy needs, this argument concludes, is a structural jolt to the system, in the form of better line-drawing. And since the line-drawers themselves won't fix the problem, it must be the courts who do it.

One can respond to this argument in many ways. For example, many details affect the outcome of an election, from money and issues to the national mood and the way a candidate runs an election. I am particularly attracted to the view that voters within a district are not partisan automatons, unthinking and unbending in their partisan zeal for whomever their party's candidate may be. In the end, for example, they can always choose not to turn out to vote at all.

Whatever your views may be about elections and safe electoral seats, yesterday's election should give you a chance for pause and reflection. One approach might be to assign blame, and surely there is much of that to go around. You should resist that impulse, unless you are a campaign operative seeking to learn from this election as you move on to the next. For the rest of us, this elections offers an opportunity to reflect on the nature of campaigns, "safe" seats and calls for courts to structure our democratic institutions in whatever way we deem proper.

Here is how I see it: a scant few weeks ago, Coakley was a prohibitive favorite, an incumbent running within the safe confines of an electorate strongly tilted in her favor. All indicators pointed to her return to the Senate. What seemed like no choice at all for voters in Massachusetts, however, became a stark issue the week before the election. In the meantime, something happened on her way back to Washington. The electorate changed its mind, or rather, independents made up their minds.

To place too much stock on this election would be foolish, of course. Elections seldom happen this way, with the nation focused on one particular race, and the fate of the western world seemingly hanging on the balance. I get that. I also get that Senator Kennedy kept this seat for over forty years, and would have won every election into the future. (query: for all the blame going around, and the claims about all the messages and signals the voters sent Washington yesterday, what does this fact about Senator Kennedy's electoral prospects in perpetuity say about the American Voter?) But at the very least, this election shows that it is possible for heavy underdogs to win, even in the face of a slanted electorate, what amounts to a statewide gerrymander.

It is trendy for election law scholars to focus much attention on electoral structures, or the many obstacles facing the American voter. The real lesson of yesterday's election in Massachusetts is that we should focus just as much attention on the American voter.