Washington Update: Everything You Always Wanted to Know About Gerrymandering But Were Too Afraid to Ask
The U.S. Supreme Court issued a flurry of decisions last week as it closed its 2018-2019 session. While its ruling rejecting the Trump administration’s rationale for a U.S. Census citizenship question will have important repercussions for representation in the U.S. House of Representatives and statehouses across the country beginning in 2022, another case also could impact the partisan balance in the lower chamber of Congress … unless voters in a handful of states get a say about it.
In this second ruling, decided by a 5-4 vote of the nine justices, the Supreme Court said federal courts cannot decide constitutional questions about partisan gerrymandering.
Partisan gerrymandering is the manipulation by the state lawmakers of the shape of House of Representatives districts. While the U.S. Constitution makes clear that the number of representatives a particular state may send to serve in the U.S. House should be proportional to its population, our Founding Fathers were silent on the question of how to decide what area of a particular state a member of Congress should represent. In most states, the goal of the majority party is to draw these districts such that the map favors their party over the opposition in upcoming elections.
Practically, as this Forbes article explains, gerrymandering means the individual lawmakers who are “drawing district lines might cluster opposition party voters together in one district in order to concentrate their votes so that they influence only a few seats. “ Or they might group “opposition voters into districts where the other party has a lock on power—making it very difficult for the opposing party to win elections there.”
This practice “normally” requires “dividing districts up along highly irregular lines to ensure that voters from each party are concentrated in the right areas and spread thin in others.” That means, instead of looking like a square or rectangle, a map of a gerrymandered congressional district might look like a praying mantis, as one district in Maryland does, or earmuffs, which Illinois’s 4th Congressional District resembles.
Writing for the majority of the Court last week, Chief Justice John Roberts said the Founding Fathers understood state lawmakers would consider politics when drawing congressional districts, which means, he said, under the U.S. Constitution, justices do not have the authority to intervene.
You would be forgiven for assuming that gerrymandering is a symptom of our current political divisiveness, but the practice is as old as the nation itself. Gerrymandering was first deployed in 1788 when, according to The Atlantic, former Virginia Governor Patrick Henry persuaded state legislators to remake the commonwealth’s 5th Congressional District, “forcing Henry’s political enemy James Madison to run against the formidable James Monroe.” (Madison won anyway.)
But why such a specific term for the practice? The word, first used by the Boston Gazette on March 26, 1812, derives from the word “salamander” and the last name of former Massachusetts Governor Elbridge Gerry. That year, Gerry signed into law a redistricting plan designed to benefit his political party (the Democratic-Republicans). In a cartoon, the Gazette explained a newly formed district in Essex County resembled a salamander. The term stuck for the ensuing century.
Governor Gerry’s “gerrymandered” 1812 redistricting plan.
The practice, according to The Atlantic, took on a different purpose after President Lyndon Baines Johnson signed the Voting Rights Act of 1965.
At this point, “Some states created ‘majority-minority’ districts, in which the majority of the constituents in the district are non-white, based on Census data.” The practice “was intended to remedy historic discrimination and promote the election of minority politicians.”
The U.S. Supreme Court eventually determined this type of gerrymandering is unconstitutional.
In a 1993 case, the Court ruled North Carolina's legislature violated the U.S. Constitution by using race as the predominant factor in drawing a single congressional district. While disavowing race as a factor in drawing districts, the court affirmed six years later that politics could. In Hunt vs. Cromartie in 1999, the same North Carolina district was subject to challenge. The Court ruled then that the district, which had been redrawn on based on the Republican and Democratic composition of the constituency, constituted legal partisan gerrymandering instead of illegal racial gerrymandering.
Former presidents and congressional leaders have endorsed the idea of gerrymandering … because they have deployed the tool themselves.
While in the Illinois state senate in 2001, The Atlantic timeline explains “then-state Senator Barack Obama was apparently able to reshape his district to his own specifications.” Two years later, former U.S. House Majority Leader Tom Delay (R-Texas) helped state lawmakers to draw districts that “helped ensure Republican dominance” in his Lone Star State. (For decades, the Republican National Committee actually employed a “redstricting director.”)
As PBS Newshour pointed out in 2017, most states have some rules that attempt to limit gerrymandering. In these states, an individual “must be able to travel to any part of the district without crossing district lines.” In other words, districts must be contiguous, if only barely. According to FairVote, an advocacy group that promotes “electoral reforms that give voters greater choice,” those state laws are not enough, however.
The organization has found gerrymandering has contributed to a rapid decline in the number of competitive U.S. House districts over the last decade, at least.
In 2010, 70 of the 435 U.S. House districts were considered competitive (e.g., the composition of the electorate meant a candidate from either party had a reasonable shot at winning an election). “[A]fter redistricting in 2011,” FairVote explains, “the number of competitive districts declined to only 53.” The organization also notes that, in the election after Republican lawmakers drew new district lines in North Carolina and Pennsylvania in 2011 – two “purple” states in recent history – Democratic U.S. House candidates won only 9 of 31 seats in those two states.
According to research from the Brennan Center for Justice at New York University School of Law, partisan gerrymandering mattered in the last congressional election as well. Scholars Michael Li, Peter Miller, Yurij Rudensky explained that, in 2018, “extreme partisan gerrymanders in Ohio, North Carolina, and Michigan held up remarkably well.” In Ohio and North Carolina, Democrats failed to win a single additional House district.
After the Supreme Court’s decision was released last week, the USA Today editorial board called for reform, and, in some of the state where gerrymandering is the worst, reforms have been considered, and accepted, by voters.
In November 2018, according to the Brennan Center, voters in Colorado, Michigan, Missouri, Ohio and Utah overwhelmingly passed reforms to take congressional district drawing powers away from state lawmakers and put them into the hands of independent commissions. This year, the state legislatures in New Hampshire and Virginia have willingly approved reforms the cede lawmakers’ power to independent panels. Voters in Arkansas and Oklahoma could be asked next year to pass similar reforms by ballot initiative.
In the United States, we are used to the Supreme Court being the final say on legal and legislative matters. But although the initial reaction to the Supreme Court’s gerrymandering decision was to bemoan the high court’s approval of the practice, in truth, it’s far more likely that voters in states across the country will ultimately be tasked with deciding its fate.
Steve Boms is the founder and President of Allon Advocacy, LLC, a Washington, D.C.-based public policy consulting firm. Steve has spent his career focused on complex financial services public policy issues, having worked in the United States Congress on the committee with jurisdiction over banking. He has led advocacy efforts and public policy teams globally for equity options exchanges, large U.S.-based financial institutions, and leading fintech firms. In addition to working directly with Allon's clients, he is a frequent conference panelist and his perspective is solicited by reporters on the technology, financial services, and regulatory beats.
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