Docket #16-1161; The Case that Could Change How America Votes
In 1812, Massachusetts Governor Elbridge Gerry enacted a law that redrew the state’s senatorial districts. Under the new lines Federalists were grouped together in fewer districts, constituting a successful effort by the Democratic-Republicans to minimize the Federalists’ voting power and to increase their own. In response the Boston Gazette published a cartoon satirizing one of the new districts which was thought to resemble a salamander. Many have likely never heard of Governor Gerry, who signed the Declaration of Independence and would later become the fifth Vice President of the United States. However, a growing percentage of the population has heard his name many times without knowing it.
What actually is Gerrymandering?
Gerrymandering is when electoral or district lines are redrawn in a manner which gives one political party a majority while minimizing the voting power of opposition parties. This practice has continued for the two centuries since gaining its name. Each state is guaranteed two senators by the Constitution, but the number of representatives is decided every ten years by a Census population count. Pennsylvania is currently designated 18 representatives: 18 Congressmen and/or Congresswomen are elected by 18 districts to the House of Representatives. Following every census, district lines are redrawn to reflect shifts in population prior to votes taking place. Most states, including Pennsylvania, assign this responsibility to their state legislatures who send their district maps to the governor for approval. A nationwide breakdown of who is responsible for redistricting can be seen in the image on the right, created by Professor Justin Levitt from Loyola Law School. Overall, 37 state legislatures have primary control of their own district lines, and 42 legislatures have primary control over the congressional lines in their states – including five states with just one congressional district. Of these states, Iowa, Maine, New York, Rhode Island, and Vermont appoint commissions to advise the legislature about where legislative lines should be drawn, but state legislatures are not required to adopt the maps proposed by the commissions. Connecticut, Illinois, Maryland, Mississippi, Oklahoma, Oregon, and Texas have backup commissions that draw state district lines if the legislature does not pass another plan.
In some other states where state legislatures do not control district lines – Arkansas, Colorado, Hawaii, Missouri, New Jersey, Ohio, and Pennsylvania – political commissions undertake this responsibility. These are composed of elected officials who draw the district lines. The remaining states – Alaska, Arizona, California, Idaho, Montana, and Washington – use independent commissions to draw both state and congressional district lines.
In the states where the legislature alone draws and approves new district lines, a single party majority provides a dangerous opportunity. The party in power is able to redistrict in a manner which all but ensures they remain in control of the legislature; two methods they frequently employ are “packing” and “cracking.” New lines either “pack” unfriendly voters into the fewest districts possible, therefore loading other districts with their supporters, or “crack” blocks of the same unfavorable voters into multiple districts, thus diluting their voting power enough to prevent them from electing a member of an opposing party. These two methods tend to produce mystifying district maps, making the state heavily gerrymandered.
The Implications of Gerrymandering
The image on the right has been picked up by several major media outlets and used to explain the practical application of Gerrymandering.
The premise: an individual is tasked with creating five districts from the 30 Blue citizens and the 20 Red ones.
Scenario 1: The person draws five long districts which produce three blue districts and two red, a “perfect representation.”
Scenario 2: The Blues have won control of the legislature and want to ensure they remain there. They draw the districts horizontally instead of vertically; this results in Blues winning 5/5 seats despite only holding 3/5 of the vote. Enter, “compact, but unfair” representation.
Scenario 3: The Reds have gained control of the state government. There is no way for them to mathematically secure a majority the way the Blues can, so they have to get creative with their redistricting lines. The Reds manipulate the grid so the Blues can only secure a majority in two districts (remember the Blues have 60% of the vote), successfully packing and cracking their way to an all but secured reelection, albeit “neither compact, nor fair” representation.
The third scenario is mimicked in reality by the map of Pennsylvania’s Congressional districts. In the 2012 elections, the Democratic Party won 5 of the 18 seats allotted to the state. This itself is not suspicious, until the popular vote is taken into account: Democrats won 51% of the total votes cast in Pennsylvania. The disproportionate Republican landslide was a result of heavy gerrymandering by the same party while in control of the state legislature. Districts number six and seven in the bottom right corner of the state are two of the most bizarrely-drawn districts in the country. Others, some drawn by Republicans and some by Democrats, include Maryland 3rd, North Carolina 12th, Florida 5th and Texas 36th.
Opposition to Gerrymandering
Some states have handed off the redistricting process to independent commissions. The tech community introduced the idea of computer generated district maps, but this has run into legal roadblocks – including the Voting Rights Act which ensures states consider race when drawing district lines so minorities are represented in Congress.
The most substantial challenge to gerrymandering is presently sitting in the Supreme Court’s docket. The case, Gill v. Whitford , originated in 2010 and stemmed from outrage over newly- drawn district maps in Wisconsin.
In November 2016, a three-judge Federal District Court struck down the 2010 legislative map for the Wisconsin State Assembly, drawn by Republicans; the party had just taken complete control of the state’s legislature, ending a 40 year Democratic reign. The ruling mandates Wisconsin to redraw the 2010 district lines, and was the first ruling from a federal court in over 30 years to declare a voting map as unconstitutional partisan gerrymandering. Gill v. Whitford is an appeal to the Supreme Court of that decision. Judge Kenneth F. Ripple wrote for the majority that the map, “was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.” Arguments in the case are set to be heard on October 3rd, 2017. When it was announced the Court would hear the case The New York Times ran a front page, above the fold article with the subheading, “A Wisconsin Case Could Upend a Disputed Election Tactic”- a version of the article appeared on the paper’s website the previous night.
When the Bench hears arguments in October, the outcome of the case will likely depend on the vote of Justice Anthony M. Kennedy. In a concurring opinion on a 2004 gerrymandering case, Justice Kennedy wrote that if challenge presented “a workable standard” he may consider it. The defendants in Gill v. Whitford claim to have created exactly that. Shawn Johnson of Wisconsin Public Radio offered this explanation of the new standard:
“The metric that they came up with they called the efficiency gap, and it measures what they call wasted votes. Let’s say you have a strongly Democratic district. And if a Democrat got a lot of votes there, but they only get one seat, they’re saying that they wasted a lot of votes to get those seats. If Democrats come up just short in a lot of other districts, they’re saying they wasted those votes as well…..So they compare that district-by-district to the statewide total, and that gives them this efficiency gap measure. And by that metric, plaintiffs looked back at redistricting plans throughout the U.S., going back to 1972, and Wisconsin’s redistricting plan was one of the most strongly political gerrymandered in history.”
As arguments draw closer, the Republican party has splintered over the case. This is because the Republican party benefits heavily from gerrymandered districts. For example; the GOP currently has a 24 seat margin over Democrats in the House, and at least ⅔ of these districts are locked in by gerrymandering. Despite this, prominent Republicans including Senator John McCain of Arizona, former Republican Senate leader from Kansas Bob Dole, and 1996 presidential nominee and former Governor of California Arnold Schwarzenegger, and Governor John R. Kasich of Ohio have all signed and filed amicus curiae, or “friend of the court,” briefs imploring the Supreme Court to rule that the “extreme” gerrymandering exhibited by the Wisconsin case violates the Constitution. Meanwhile, the Republican National Committee, the National Republican Congressional Committee, and the Republican State Leadership Committee have led the charge in the opposite direction, all filing briefs which implore the court to uphold the maps in question.
Former Wyoming Senator Alan K. Simpson, who filed one of the aforementioned briefs with fellow Republicans, believes this case was a long time coming. “This case is long overdue,” he said, “Quite literally, gerrymandering is killing our system. Most Americans think politicians are corrupt, and when they’re rigging maps to pick their own constituents, they’re giving them reason to believe it.” Leaders on both sides of the aisle have attributed the increasing polarization in politics, as well as the growing public disapproval of Congress, to manipulative tactics like gerrymandering. Governor Schwarzenegger said, “You see a direct correlation…in California, for instance, we did the redistricting reform and the legislators have over 50 percent approval rating, and in Washington they have a 16 percent approval rating.” The former Governor went on to say, “it’s a rigged system…You have situations where you get 50 percent of the vote but only 35 percent of the seats. That is corrupt. That is incorrect. It’s unfair to the people.”
However the Court rules, the impact will be far-reaching in the regions attempting to fight gerrymandering. A decision to reject the lower court ruling and uphold the 2010 Wisconsin Assembly lines would not end the road for those attempting to rid the nation of gerrymandering. Similarly, a decision to uphold the lower ruling and name the tactic as unconstitutional would not automatically bring an end to the practice. Thousands of districts, both Congressional and local, would need to be redrawn.
After the Supreme Court hears arguments on Gill v. Whitford it could release a decision as early as November, or as late as June.