Gerrymandering to retain power

August 1, 2017

 The 2016 general election marked the second time this century that a presidential candidate went on to win the White House after losing the popular vote, leading some people to question the purpose of the Electoral College, of which most citizens have only a fleeting understanding. But while post-election focus has zeroed in on perceived shortcomings in the presidential election system, far less attention has been paid to inequalities built into many congressional and state governing body races through the age-old practice of partisan redistricting, also known as gerrymandering.

Redistricting refers to the drawing of electoral geographic boundaries for each representative in Congress and each state's governing body. Districts also exist for county commission seats and in some municipal board elections.

In Michigan, state and congressional representatives are from districts and elected by the people residing in those districts, although technically a U.S. House member does not have to live in the district they are seeking in an election. As a general rule, for example, voters in Birmingham and Bloomfield Hills and an southern portion of Rochester Hills reside in the 11th Congressional District, voters in Bloomfield Township are in the 9th Congressional District, while Rochester and the majority of Rochester Hills are in the 8th Congressional District. However, the boundaries of those districts tend to change every 10 years, meaning it is likely the district you reside in will change each decade. Likewise, state legislative districts are subject to change every 10 years. Those changes are supposed to be based on U.S. Census results and reflect shifts in the population. However, the process of redistricting, which in Michigan and most other states is controlled by the state's legislature and approved by the governor, often results in districts that give an advantage to one political party over another. When this occurs, the process is referred to as gerrymandering, so named back in 1812 when Massachusetts Governor Elridge Gerry allowed for an oddly shaped political district formation that looked like a salamander.

Gerrymandering is mainly done in two ways – called "cracking," which divides a political party's supporters among multiple districts so that they fall short of a majority in each one; and "packing," which concentrates one party's backers in a few districts so they win by overwhelming margins. 

Because the political party in power at the time of redistricting is ultimately responsible for the process, it is in the interest of that party to draw districts that help them retain their positions in future elections.

Put another way, gerrymandering can result in a process that allows candidates to select who is voting for them, rather than voters selecting their candidates. 

The actual process of rigging the system and the effects of gerrymandering aren't well understood by the vast majority of the general public, nor have they believed it to be cause for concern.

Just 10 percent of American voters surveyed in 2006 by the Pew Research Center said they have heard a lot about the issue of gerrymandering, with 89 percent saying they have heard little or nothing. Of those polled, about 55 percent believed they lived in districts that were competitive, but were actually skewed toward one party. 

In terms of understanding the process, the survey found 44 percent were aware that elected officials were responsible for redistricting where they lived, while 47 percent said they didn't know who was responsible. Nine percent incorrectly stated that redistricting where they live was done by a nonpartisan panel.

Oakland County political consultant Dennis Darnoi, founder of Densar Consulting in Farmington Hills, said both Democrats and Republicans have used gerrymandering to benefit their party in Michigan. Ultimately, whatever party dominates the legislature will use redistricting to their advantage.

"Politics is sort of a contact sport, and to the victors go the spoils," he said. "In recent years, Republicans have been successful, but there are times when the Democrats were in charge and they held the redistricting pen. That's sort of the nature of politics."

A good illustration of raw politics when it comes to redistricting is how Oakland County commission districts were redrawn the last time.

Commission seats there are divided by districts, and up until 2012 were drawn by a bipartisan committee that included the county chair of the Democrat and Republican parties, as well as the county treasurer, prosecutor and clerk, offices that in past years were held by Republicans. However, when Democrats won control of that committee through the electoral process, Republicans (who have the majority on the county commission), challenged their district maps, and pushed the legislature to pass a law that would allow the county commission to draw their own maps, while removing two seats on the board, thereby eliminating the prior committee system when it came to drawing new districts.

The law was passed and upheld by the Michigan Supreme Court, with Oakland County Executive L. Brooks Patterson claiming victory for county taxpayers, who he said would save about $2.5 million over 10 years by eliminating the two districts.

"We were a separate body that was drawing the lines, and this bill basically allowed the fox to guard the chicken house," said Oakland County Treasurer Andy Meisner, a Democrat. "The commissioners were empowered to draw their own districts under a very implausible attempt to lower costs. They reduced the number of seats, but that was really smoke and mirrors to what they were really doing, which was forcing a very imbalanced map on Oakland County and guaranteeing Republican control of the Oakland County commission for the foreseeable future."

Darnoi cautions that there are definite drawbacks to the public from excessive gerrymandering.

"On the practical side," he said, "you do run the risk of drawing districts that are so partisan you don’t get the viewpoint of the minority party."

While creating districts that have an even 50/50 split of the number of Democrat and Republican voters isn't likely in any area, aiming for an even split means elections will be more competitive, with fewer lopsided victories by either party. While some federal requirements protecting minority voting rights make such a split difficult, districts closer to an even split force those running for office to consider the views of more people in that district.

"You can draw districts that have 51 percent Democrat or Republican, and make them far more competitive. Even dropping down from 54 percent to 52 percent makes the winner have to take into account the views of the other side," Darnoi said. "If your concern is winning the primary, you tend to run to the extreme of the base, which makes governing difficult to do. Anything that makes the general election better makes governing better because you are speaking more to the middle of your district than the extremes of your district."

Still, only 22 percent of voters surveyed in the Pew Research Center's 2006 survey said they felt that when politicians face tough competition for reelection that it makes them work harder to represent their district better, with 62 percent of respondents saying tough elections make politicians focus too much on fundraising and campaigning instead of being a good representative.

How much those views have changed today is uncertain, but the general public's lack of knowledge about their elected officials was illustrated in the Center's 2014 survey, which found about 53 percent of voters were able to correctly identify the party of their congressional representative – keep in mind, the choices give even those guessing a 50 percent chance of being correct. An Annenberg survey by the University of Pennsylvania in 2014 found just 36 percent of those surveyed could name all branches of government, with 35 percent unable to name even one.

However, there are more recent signs that the public, as well as the court system, is interested in addressing the issue of gerrymandering.

In 2015, the United States Supreme Court upheld the right of voters in Arizona to remove the authority of that state's legislature to draw election districts and allow for an independent redistricting commission.

In June of this year, the Supreme Court agreed to take up the issue of unconstitutional partisan gerrymandering in 2017 when it hears an appeal over electoral districts in Wisconsin after a lower court ordered that state's Republican legislature to redraw district maps it deemed to be unconstitutional. The case marks the first time in more than a decade that the U.S. Supreme Court will take up partisan gerrymandering, giving it the potential to impact the issue in all states.

Challenges to partisan gerrymandering are also pending in Maryland, North Carolina and Pennsylvania.

In Michigan, former Michigan Democratic Party Chair Mark Brewer has vowed to file a federal court case similar to that filed by Democrats in Wisconsin.

"We haven't filed yet. We are making progress and will file as soon as it's ready," said Brewer, who currently works as an attorney and political consultant with Goodman Acker P.C., in Southfield. "It will be very similar to the Wisconsin case, which was filed by a group of Democratic voters who have been harmed by gerrymandering."

While Brewer wouldn't give a date as to when he expects to file the Michigan case, he said he expects it to move forward while the Supreme Court is still hearing the Wisconsin case. Should the court rule in favor of Democrats in Wisconsin and order new district maps be drawn there, a similar cases filed by Michigan voters could result in a similar ruling here.

"The court can only order the drawing of new maps," Brewer said, who added that states would need to file their own cases. "We think we have good evidence. I also think Michigan needs a new way to do this, and the way other states have done this is through a nonpartisan, independent commission. In Michigan, that would be done through a ballot initiative."

Such a ballot initiative is exactly what is being sought by Katie Fahey, president and treasurer of Voters Not Politicians, a group in the state that is pursuing a Michigan ballot proposal for the 2018 general election to create a nonpartisan redistricting commission for the state. The group says politicians are manipulating voting maps to keep themselves in power.

"We are looking for an independent citizen commission, meaning it's removed from the legislature," Fahey said. "It all started with a Facebook post saying 'who wants to end gerrymandering in Michigan,' and that turned into a network of people across the state.

"The movement started nonpartisan from the beginning, from people who wanted to see what a fair system would look like."

The proposal seeks to create a 13-member independent citizens commission made up of five independent voters and four partisan voters from each of the two major parties.

"It is removed from the legislature, so there wouldn't be political insiders or lobbyists. We are looking for diversity," Fahey said. "They would draw the lines so there can't be a political advantage, and they would be drawing lines for congressional seats, and state Senate and House of Representatives, so three sets of lines. All of their meetings would be held in public, so it's a transparent process."

The process, she said, would include a public hearing on proposed district maps. The commission would have to maintain constitutional requirements, which include creating districts that are equal in population size and don't dilute minority voting power, under the Voting Rights Act. Further, districts must be contiguous, with each being a single, unbroken shape. The proposal would also place greater emphasis on districts that focus on "communities of interest," even if those communities cross or split county, city or township lines. 

Communities of interest refer to communities that are likely to have similar legislative concern, and who might benefit from cohesive representation in the legislature. Nationally, there are 24 states that includes the communities of interest consideration in drawing district lines. Under the proposal, communities of interest would take priority over existing city, township and county boundaries. 

Any attempt by lawmakers in the state to remove the partisanship from the redistricting process hasn't been successful, Fahey said, leading the group to pursue a ballot proposal that would allow voters to force the issue.

"We found the only ones that have supported solutions – mostly being left in the hands of elected officials – wasn't resonating with us, as they are the ones who draw the lines and run for reelection," she said. “We decided at the end of February to do a ballot initiative."

Since then, the group has held a series of about 40 town hall meetings across the state. The purpose of the meetings, Fahey said, has been to both educate residents about the issue, as well as get feedback on what people think would be a fair solution to gerrymandering.

"Since then, we have been hitting the pavement to create a policy," she said. "We took feedback from the town halls and formed a policy team, and we talked to other states and stakeholders."

Fahey said the group recently finalized proposed language for the ballot proposal, which was being reviewed by state officials in July. The group is expected to make a formal announcement on the language in late July. The group will then be required to gather signatures to petition the state to place the issue on the ballot in 2018.

"Even if the Supreme Court rules and says you can't provide partisan advantage to one party, it still doesn't change the fact that our legislators are currently drawing the lines," Fahey said. "We still feel strongly that if we in Michigan don't change this, there will still be an inherent conflict of interest."

The ballot initiative, combined with a potential landmark decision from the U.S. Supreme Court, is one template for reform, albeit one that depends on several unknown and challenging circumstances.

Darnoi said while there have been rumblings in the past about forming an independent redistricting commission in Michigan, this is the first time a group has worked for a ballot proposal. "It will be interesting to see if it’s successful, as changing the (requirements) to 180 straight days will make it very difficult to get on the ballot," he said. 

Michigan law allows citizens to initiate legislation as either an indirectly initiated statute or a directly initiated constitutional amendment. Petitioners for ballot initiatives have 180 days to collect the required amount of signatures. Those older than 180 days at the time of filing are considered invalid. Prior to 2016, signatures could go through a process to prove they were still valid. However, state legislators in 2016 – in an effort to kill ballot proposals for the legalization of marijuana in the state – removed the possibility of providing older signatures. The shortened time frame means petitioners must spend more money to collect signatures. The number of signatures required is tied to a percentage of how many people voted in the most recent gubernatorial race. In 2018, the required amount of signatures would be about 253,000 signatures. 

Darnoi said he believes the most likely chance for a ballot initiative would be an effort in the 2020 election, just ahead of when the next U.S. Census would be released.

"Previously, you needed about 253,000 signatures, but we will see what turnout will be in 2018, and that will determine what you'll need in 2020 and 2022," he said. "It will be interesting to see what the threshold will be to get an initiative.

"You really have to have all your ducks in a row and money in the bank before you go out in the field. Now, with the change to the (deadline) rule, you need $1.3 million or $1.4 million in the bank before you even start the process. Then you need to be in the field in April before you can count on going into October or November the year before the election. Getting on the ballot has changed since the 180-day rule change.

"I think the Democrats might see this as an issue if they aren't successful in 2018. If there is going to be something done with redistricting, and done on the ballot, it's more likely in 2020."

At the federal level, the Supreme Court has remained relatively quiet on the issue of partisan redistricting, in part because it has yet to agree on a usable standard in measuring whether a district is gerrymandered. However, the Wisconsin case (Whitford v. Gill), claims Wisconsin districts were gerrymandered by the state's Republican-controlled legislature, which the plaintiffs said can be demonstrated by 2012 and 2014 election results, among other evidence. An additional charge was that the intended effect was to impede Democratic voters' ability to translate their votes into legislative seats.

The suit claims Republicans used "packing" and "cracking" to gain a majority of congressional seats in the state.

"This cracking and packing resulted in wasted votes: votes cast either for a losing candidate (in the case of cracking) or for a winning candidate but in excess of what he or she needs to prevail (in the case of packing)," according to the case.

Looking at the number of "wasted votes" in an election, the case proposes a way to measure gerrymandering by measuring an efficiency gap. An efficiency gap is the difference between the parties' respective wasted votes in an election, divided by the total number of votes cast. When two parties waste at an identical rate, a redistricting plan's Efficiency Gap, or EG, is equal to zero. An EG in favor of one party over the other means the party wasted votes at a lower rate than the opposing party. The case argues that the EG, therefore, is a way to measure efficiency.

The plaintiffs in the Wisconsin case incorporate the efficiency gap into a proposed three-party test for partisan gerrymandering. 

"Suppose," the plaintiffs assert in the court case, "that there are five districts in a plan with 100 voters each. Suppose also that Party A wins three of the districts by a margin of 60 votes to 40, and that Party B wins two of them by a margin of 80 votes to 20 votes, then Party A wastes 10 votes for each of the three districts it loses, adding up to 70 wasted votes. Likewise, Party B wastes 30 votes in each of the three districts it loses, adding up to 180 wasted votes.

"The difference between the parties' respective wasted votes is 100, which then is divided by 500 total votes, yields an efficiency gap of 22 percent in favor of Party A."

In the case of congressional elections in Wisconsin, the plaintiffs found a pro-Republican efficiency gap of 12 percent in 2012, and 10 percent in 2014. The gap, they claim, isn't necessary, as those crafting the maps had also made maps with just a two-percent efficiency gap, which met all state and federal requirements.

Efficiency gaps in Michigan, as found by a recent study commissioned by the Associated Press, found the state had some of the most gerrymandered districts in the country. The study, as reported by the Associated Press and The Detroit News, found the state's House of Representatives has the second largest efficiency gap in the country. The state's congressional district efficiency gap was found to be the ninth largest.

Statewide election results in Michigan show Democrats tallied either more or split the vote in state House races in 2014 and 2016, but that Republicans have a 16-seat majority. Senate Republicans in Michigan have held a majority in the state Senate since 1984.

Historically, Democrats have controlled the state House from 1969 until 1992, when the parties split the state's 110 seats 55/55, with Democrats holding the majority in the state House three times since then.

The Republican hold on the Senate came shortly after major changes in the state's reapportionment process, which prior to 1982 was done by a bi-partisan state Apportionment Commission – a process created by the 1963 ratification of the state's constitution. The constitution set up a bipartisan commission, but allowed any member of the commission to submit his or her own plan to the state Supreme Court if a commission couldn't reach agreement on a plan.

In 1964, the first commission failed to agree on a plan, leaving a final plan up to the court. The commission, following the 1970 census, again failed to agree on a plan, leaving the court to decide what plan to use for redistricting. After the 1980 census, the reapportionment commission failed a third time to agree on a plan. However, the court refused to decide on a plan, ruling instead that reapportionment provisions of the 1963 constitution were invalid and dissolved the commission, sending the issue back to the legislature.

The court then hired political consultant Bernie Apol, formerly head of the state's election bureau, to draw a reapportionment plan following county and municipal boundaries. Under the guidelines set out by the court, the new districts had to break the fewest county lines while staying within a 16.4 percent population variation between districts.

Apol released his plan in April of 1982, with Democrats objecting to the plan, claiming it would give an advantage to Republicans in the state Senate. Democrats, however, weren't able to meet the court's deadline for enacting an alternative plan, and the Apol plan went into effect.

While Democrats won the majority of Senate seats in the first election under the plan, the GOP in 1986 won the majority (20-18), while Democrats won the majority of the votes cast for all Senate candidates. As feared by the Democrats, many of the votes they received were in districts where Democrats were concentrated, and their candidates won by large margins, thus diluting the effect of their majority.

Political consultant Steve Mitchell, founder of Mitchell Research in West Bloomfield, said the Supreme Court's case in Wisconsin could have dramatic changes on what happens in Michigan, which still operates under the Apol plan.

"Redistricting is just a real issue every 10 years, but it's really too early to say what will happen, given the court cases out there and that we haven't had an election (to determine who will control the process)," he said. "What happens next year depends on who we elect as governor and in the legislature. Assuming there are no changes in the criteria, if Republicans continue as they did in the 1990s and the 2000s, they will draw the lines, and they will draw them so they are favorable to them."

Currently, Michigan has 14 congressional districts, which includes nine held by Republicans and five held by Democrats. Population losses over each decade has caused the state to lose five congressional districts since 1973. 

As districts are eliminated, the party in power tends to focus on eliminating seats that are held by the opposing party. When a district is eliminated, the legislature must therefore redraw and often rename the remaining district boundaries. When done in a way to give a political party an advantage, the districts not only pack and stack the opposition party's voters, they often pit strong candidates of the same party against each other.

For instance, Michigan's Congressional Redistricting plan, which went into effect in 2013, called for the elimination of the former 11th District, held by former Democratic Congressman Gary Peters. Under the redistricting plan, Peters was expected to run against longtime Democratic Congressman Sander Levin for the newly drawn 9th District seat. While Peters instead ran in 2014 and won the newly drawn 14th District seat (and was later elected to the U.S. Senate), Democrats ultimately lost two congressional seats in the 2014 and 2016 elections, with Republicans holding nine of the state's 14 congressional districts and Democrats nine.

Historically, Democrats held the majority of congressional seats from 1975 to 2003, while Republicans have held the majority each election since, with the exception of the span from 2009 to 2011.

Population losses noted in the 2010 U.S. Census resulted in Michigan losing one of its congressional seats in 2013. The state's redistricting plan in 2011 called for taking the number of congressional districts down from 15 to 14. While the plan technically eliminated the 15th Congressional District – which included a large population of Democratic voters in Dearborn and Ann Arbor and held by then-Dearborn Democratic Congressman John Dingell Jr. – the elimination was in name only.

In order to eliminate the 15th District, the district was renamed as the 12th District in 2013. From the previous redistricting in 2003 until 2013, the 12th District's boundaries ran primarily along the I-696 corridor in Macomb and Oakland Counties, and was held by Democrat Sander Levin, of Royal Oak, from 1993 to 2013. Today, the 12th District includes the former 15th District's area. Dingell, who had the 15th District seat, then ran in the same area under the 12th District name. Today, the 12th District is held by John Dingell Jr.'s wife, Debbie Dingell.

Voters in Levin's old 12th District were reassigned in 2013 to the 9th District, which from 2003 until 2013 took in portions of Oakland County along the 696 corridor, including Royal Oak, Southfield and Ferndale, and north to Mount Clemens in Macomb County. In 2013, when the 12th was reassigned to the 9th District's area, the district was expanded north in Oakland County to Keego Harbor to include Bloomfield Township, Southfield and Franklin, but circling around Birmingham and Bloomfield Hills, which weren't included in the new district. The new 9th District now includes much of the former 12th District and a significant portion of the former 11th District.

Congressman Levin, who had held his former 12th District seat from 1993 to 2013, had previously held the state's 17th District seat from 1983 to 1993, which was eliminated in 1993 and renamed to the 12th, which as noted, was renamed the 9th in 2013. Prior to 1993, Levin held the state's 17th Congressional District for 10 years, until it was eliminated in 1993.

Peters, in choosing not to run against Levin in the new 9th District, opted instead to run in the newly drawn 14th District, which after the new boundaries went into effect in 2013 included potions of Wayne and Oakland County, including West Bloomfield, Farmington Hills, Orchard Lake, and east into Hamtramck, Grosse Pointe and Detroit. The 14th District is currently held by Democrat Brenda Lawrence, who was elected after Peters was elected to the U.S. Senate.

From 2003 to 2013, the 14th District included parts of Detroit and Dearborn, 

Democratic Congressman John Conyers had held the 14th District from 1993 until it was redistricted in 2013. The district was formerly the 1st District, which Conyers held from 1965 to 1993. In 2013, the district was renamed the 13th, which Conyers continues to hold.

The area of northern Michigan now considered the 1st Congressional District had been named the 11th District prior to 1993, when in the same year the 11th was moved and formed out of four other districts, the majority which included the former 18th District, which included Birmingham, Bloomfield Hills, Rochester, Rochester Hills and a large portion of Oakland County.

Today, the 11th District, currently held by Republican David Trott, is one of the most oddly shaped district spanning from Canton to the south, Waterford to the north and then snakes around Pontiac and southern Oakland County to include Auburn Hills, Troy and Birmingham, with it's tail ending in Bloomfield Hills.

Meanwhile, the 8th Congressional District, held by Republican Mike Bishop of Rochester Hills, was expanded in the 2013 redistricting to northern Oakland County, where it includes Rochester, Clarkston and Lake Orion, adding to its western portion that spans Ingham County and Lansing.

Trying to follow the history of congressional redistricting in Michigan can be dizzying, but analyst and pollster Ed Sarpolus, founder of Target-Insyght in Lansing, has already crafted his own predictions of what he believes the state's next congressional districts will look like under the current criteria.

"Apol was chosen to keep it less partisan, but the problem is that Democrats tend to live in concentrated areas, and that does't help Democrats," Sarpolus said about the current system. 

Regardless of the system in place, Sarpolus said Michigan will almost certainly lose another congressional seat in the next decade after census figures are done. All things remaining the same, he said Democrats will have their last chance in 2018 to gain control or share in the next redistricting process. However, Sarpolus' projected plan for 2022 districts assumes Republicans will retain control of the process and will proceed as in the past.

"The easiest way (for Republicans) to draw them and keep all Republican districts safe was the removal of Sandy Levin's (9th) district," he said. "You could move others, but the key thing is that Democrats will lose a district, and that's the most likely."

Federal law requires all congressional districts to be as close to equal in general population as possible, and because minority districts can't be broken up or split, Levin's 9th District is a likely target for Republicans. In removing the district, the biggest impact to the GOP would be the 11th and 8th Districts, held by Trott and Bishop, and voters within Downtown newsmagazine's readership.

"When you do that, what do you do with Bishop and Trott? They can’t share a seat then have to battle it out in a primary," Sarpolus said. "By removing (Brenda) Lawrence (14th District) from Pontiac, that allows Trott to go through West Bloomfield and for Bishop to pick up Pontiac.

"Essentially, Trott would stay the same and maintain what he had, and Bishop would need additional geography. Each district would grow by about 54,000 votes." The plan would extend Bishop's district south to 8 Mile Road in Oakland County to pick up some of the current 9th District communities. 

Under the projection, the 9th District would be renumbered as the 11th, and about 46 percent of voters in the district would be Democrats, compared to about 45 percent in 2012. Bishop's district would maintain the same 46 percent Democrat population it has currently.

"The Democrats can have 48 percent of a district's population and win Republican seats," Sarpolus said. "In the 1990s, they could win seats that were 46 percent, but now they are only winning with 48 percent Democrats. The districts are drawn in such a way that they don't have flexibility for independent voters.

"So, why 48 percent and not 46, and why did they win when they weren't majority? You have to take into account independent voters."

While concentrated populations and constitutional requirements may make drawing competitive districts challenging, it's far from impossible. In 2011, the Michigan Center for Election Law and Administration, in partnership with Michigan Redistricting Collaborative, held the Michigan Citizens' Redistricting Competition. The competition provided citizens with software to craft their own maps for Michigan's 14 Congressional seats, or Michigan's State Senate or legislative seats. 

Former Wayne State University Law School Dean Jocelyn Benson, who founded the Center for Election Law, said nearly all the maps received complied with state and federal law, and were more competitive than those drawn by the state legislature.

"We had nine-year-old kids that had maps that were better than the legislature, particularly in the 13th and 11th Districts," she said. "We found that the winning maps created a majority of districts that were competitive – about 50/50 (Democrat v. Republican) and complied with the Voting Rights Act and other laws."

While Benson said she believes Michigan is likely to lose a congressional seat in the next decade, leading to a game of "musical chairs" in the districts, she said her hope is that the state implements a citizen's redistricting process introduced through a state ballot initiative.

"Throughout the redistricting process there's a lot of attention paid to it," Benson said of gerrymandering. "Now more than ever, people are getting a sense that the system is rigged, and they are wondering what they can do about it.

"Even before a major crisis that preceeds democratic reform, like Watergate, even absent that, there are many ways that people are expressing they are fed up and looking for ways to change it. Once you go down that road, it's hard not to see redistricting as part of that reform." ­

 

 

 

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