Lane: Pulling the Purse Strings

We need a new strategy to counter gerrymandering.

by Thomas Lane | 1/20/22 4:05am

In 1984, Congress passed the National Minimum Drinking Age Act, making access to federal funding for transportation projects conditional upon whether or not a state had a drinking age of 21. If a state allowed the sale of alcohol to anyone under 21, they didn’t get their money. Regardless of what you think of the minimum drinking age, the law worked. By 1988, just four years later, all states had altered their drinking laws so they wouldn’t lose funding. To this day, no state allows the sale of alcohol to anyone under 21. There were complaints and controversies, but in the end, no state was willing to forgo their free cash for highways from D.C. over the drinking age. There’s an important lesson to be learned here is that the way to get states to act on matters generally considered out of federal purview is to tie their money to it.

Our democracy is threatened by a host of issues, but among the biggest is gerrymandering. Not only does gerrymandering threaten to take true choice in governance out of the hands of the people, but it also threatens to erode the progress we have made toward actually achieving America’s ideal of a democracy that puts all on equal footing before the law — or, more specifically in this case, the voting booth. Given that the courts have been cowardly in their refusal to uphold democracy by declining to ban partisan gerrymandering, the ball is back in Congress’s hands. Luckily, the federal budget offers a possible way out of this mess.

Federal dollars represent about a third of the collective revenue of the states. States depend on that money to function. Interestingly, many of the states with the most gerrymandered House of Representatives districts, measured based on compactness (a way of quantifying the snake-like features inherent in most gerrymandered maps), also frequently get high proportions of their budget from federal handouts. The worst offenders would accordingly suffer the worst consequences for not reforming their practices. But, all states would still be compelled to act. Even Hawaii, which gets the smallest proportion of its budget from the federal government, receives over a fifth of its money from federal funds. That’s truly a lot of cash.

How would a law targeting gerrymandering via the budget work? The simplest way would be to reduce a state’s federal funding if the balance of seats in their state legislature and congressional delegation differs from the overall popular vote by party for those seats over the course of the most recent few elections by a given percent — say 5%, solely for example’s sake. This calculation would exclude, of course, congressional delegations from states which only have a handful of representatives in Congress. This way, any state legislature which seeks to rig the maps for either their state legislature or congressional seats will pay a steep price for doing so.

Importantly, this method avoids a lot of previous pitfalls with attempting to measure and outlaw gerrymandering, as there is no need to attempt to define what exactly an individual ‘gerrymandered district’ is. Therefore, it will be a lot harder for the drawers of a gerrymandered map to contest in court whether their map is in compliance or not as a way of stalling or seeking to nullify the law’s intent. The determination would be simple: based on the most recent elections’ results, would the map in question result in legislators who align to the will of the voters overall? If not, the state would need to redraw its maps fairly or risk losing their federal funding. 

There are a few things which must be addressed in order for this method to pass constitutional muster. Back when the National Minimum Drinking Age Act was passed, it was challenged by South Dakota. The Supreme Court upheld the law in South Dakota v. Dole because it satisfied five conditions, two of which are relevant: The conditions placed on the money have to relate to the money’s purpose, and the amount of money in question cannot be ruinously large if withheld.

In order for the withheld money to relate to the purpose of ending gerrymandering, Congress cannot pick and choose what money it withholds. The purpose of federal dollars broadly is to advance the general welfare of the country. The election of legislators serves the same purpose. They meet to decide on and enact policy that advances general welfare broadly. By withholding federal dollars in general rather than in specific instances, the conditions on the money would relate to the money’s purpose as the law requires. 

The second condition is much simpler. Congress cannot withhold so much of a state’s money that it would threaten catastrophe. It has to be just enough to encourage change, but not so much that it is excessive; in the end, the goal is not to ruin the lives of state residents who depend on the various programs funded through federal dollars. Ideally, no funding would actually be withheld. The goal is simply to threaten just enough discomfort that states clean up their acts, and do so in a timely manner.

Gerrymandered electoral maps represent a threat to all voters. If state legislatures and Congress don’t correspond to the actual will of the people, then what is the point of holding elections in the first place? This shouldn’t be a partisan issue: both parties engage in gerrymandering in states they control, regardless of whether they lean Republican or Democratic. It is an arms race that helps no one in the long run, but harms those who ethically abstain from it. By making partisan gerrymandering unfeasible via this financial method, we can end this ruinous practice and take an important step towards safeguarding our endangered democracy.

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