Dumbbells and Salamanders
There are two key things that every state—with or without medical liability reforms—has in common: Elections play a vital role in establishing or protecting liability reforms, and 2010 was the last year elections would be conducted using the current district lines. State legislative and congressional district lines have to be redrawn using the population figures from the 2010 census. Before the once-every-10-years rule went into effect, district lines often long outlived their original representative qualities. For example, voters might leave one area over time, while another area grows in population. If the district lines were to stay in place, relatively few voters in the first district would wield the same power as the larger group in the second.
The process of reapportionment and redistricting is never as straightforward as simply adjusting district lines to account for changes in population. One reason is that the majority of states leave the drawing of district lines to the state legislature. The party that controls the legislature at the time of redistricting then has the opportunity to set lines that disperse its opponents’ voters into separate districts in numbers too small to win elections or to concentrate those voters into too few districts for the opposing party to win a majority of seats—or both. In order to accomplish these aims, mapmakers produce oddly shaped districts based on voter registration.
One common result is shaped like a dumbbell, with a narrow, elongated section along a freeway or other commuting corridor connecting large neighborhoods of same-party voters. This distorted mapping is called “gerrymandering” after Elbridge Gerry, a Massachusetts governor who approved a redistricting bill that included a state senate district shaped like a salamander, drawn specifically to aid in the election of his favored candidates. Incumbent legislators have both a vote on approving plans and a personal interest in the location of the lines, so plans tend to be the result of intense dealmaking that can spill over and affect other controversial bills up for consideration.
To counter the tendency to gerrymander, a number of states have shifted responsibility for redistricting to independent commissions. These commissions are typically charged with creating districts according to a set of rules directing them to preserve municipal boundaries whenever possible—gerrymandered districts usually split cities and even neighborhoods along partisan lines—and to account for common interests within a district. For example, an agricultural area is certain to have fewer voters per square mile than an urban area; if those voters are distributed between several districts, each with urban centers, the voting interest of those agricultural voters is diluted.
Independent commissions bring their own brand of complexity to redistricting, however. While the influence of the legislature on the plan is reduced, this method still produces some oddly shaped districts and insoluble conflicts. A district that preserves a community of interest, for example, may not line up well with city boundaries. Legislative dealmaking certainly has disadvantages, but it functions to solve some redistricting conflicts not resolved by algorithms or lists of rules.
Whether the legislature or an independent group draws the lines, new boundaries must not harm racial or ethnic minority groups by concentrating or diluting the numbers of minority voters. States with significant minority populations are likely to contain so-called Voting Rights Act counties, where any change, either to district lines or even to the rules by which elections are conducted, is subject to prior review and approval by the U.S. Justice Department. Even outside these areas, redistricting plans are subject to scrutiny to prevent discrimination on racial or ethnic grounds.
Regardless of whether the lines are drawn by a legislature or a bipartisan panel, some interests—minority political parties, taxpayer groups, or civil rights organizations—will view the resulting map as designed to work to their disadvantage and will sue to have the maps adjusted or thrown out. When successful, these suits result in the original mappers redrawing the lines with court-ordered changes, or sometimes the court—or a panel of judicial masters—will draw new lines. Sometimes litigation will mean holding elections on the old district lines even though population changes have rendered them obsolete—the reason we now redraw district lines every 10 years.
With or without litigation, redistricting adds chaos to election season. Rarely are the maps ready before candidates start their campaigns, meaning that we have a pretty good idea of who’s running, but not where. Often strong candidates or even incumbents will find that previously complementary districts have changed dramatically or that the new maps contain both their supporters and those of an equally strong candidate or another incumbent. Occasionally a legislator or congress member who is unlucky, unpopular with other members, or just lacks seniority will find that his or her district has simply disappeared, with the former home voters distributed into new districts drawn to suit other incumbents. These candidates will have to move, run for other offices, or end their careers prematurely. All this adds significant complexity to the task of identifying and supporting pro-reform candidates in the wake of reapportionment and redistricting.
Federal Update
In the last issue of The Doctor’s Advocate, I noted that the Joint Select Committee on Deficit Reduction had an opportunity to incorporate liability reforms into its deficit recommendations. As we now know, the committee was unable to agree on any recommendation. This situation not only further postpones consideration of liability reform in Congress, but it also leaves us with the prospect of across-the-board cuts in federal spending that include an estimated 27.4 percent cut in Medicare reimbursement to physicians.
As I write this, the House of Representatives has extended the budget bill until the end of February, preventing the Medicare cuts that were due to take effect January 1, 2012. A conference committee of House and Senate members has started work on a permanent solution to the Medicare reimbursement problem as part of a new budget agreement.
The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.
The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.
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