Recently, courts at both the federal and state level have been forced to get involved in the process of defining electoral borders in the US, as organisations across the country have started legal claims designed to overturn what they see as unfair electoral maps. Richard Briffault explains what is meant by gerrymandering, how it has been challenged in the past and what the Supreme Court is currently being asked to decide.
Identifying the problem
Gerrymandering refers to the practice of manipulating the boundaries of electoral districts to favour particular candidates, parties or interest groups. It arises out of –and has become increasingly significant in American politics because of – five factors.
First, members of the United States House of Representatives and of the chambers of both houses of all state legislatures are elected from single-member districts with the winner selected on a first-past-the-post basis. In other words, there is no proportional representation.
Second, electoral constituencies must be redrawn every ten years in light of the decennial census so that the districts have relatively equal populations.
Third, legislative redistricting is typically undertaken by partisan officials. In most states, the state legislature redistricts itself as well as the state’s congressional districts. A number of states have created so-called independent redistricting commissions, but most of those commissions consist of partisan officials, such as the legislative leaders of the major parties, or their appointees. Only a handful of states use truly non-partisan or independent commissions.
Fourth, until now there has been no federal constitutional constraint on partisan gerrymandering.
Fifth, modern computer technology and data analytics has made it much easier for legislatures to fine-tune line-drawing for maximum partisan gain. Line-drawers can have detailed information about partisan enrolment and voting results down to the precinct or block level at their fingertips, can generate literally thousands of alternative maps that comply with population equality, contiguity, and racial minority representation but produce very different results in terms of the number of districts each of the major parties is likely to win.
Gerrymandering has long been part of American politics. The term dates back to 1812, when Massachusetts’ Governor Elbridge Gerry signed into law a bill creating a state senate district that a satirical cartoonist portrayed as shaped like a salamander. But there is general agreement among political scientists and legal academics that gerrymandering has worsened. Under a single-member district system, there is no guarantee that a party’s share of legislative seats will correspond to the share of statewide votes its legislative candidates receive. But the disproportion between seats and votes has increased both in Congress and in many state legislatures. This has been facilitated by the growing number of one-party-dominated states. Before the 2010 elections, there were 25 so-called ‘trifecta’ states, that is, states with a governor and both houses of the legislature controlled by the same party, and they were split closely between Republicans and Democrats. The 2010 election was a so-called ‘wave’ election, resulting in 32 trifecta states, with 21 dominated by Republicans. With the decennial redistricting that occurred in the aftermath of the 2010 election Republicans were able to entrench their control of the legislatures and congressional delegations of these states.
Thus, Michigan voted for President Obama in both 2008 and 2012, and both of its United States Senators (who are elected statewide) are Democrats, but its House delegation consists of 9 Republicans and 5 Democrats. Pennsylvania voted for President Obama twice and has a Democratic Governor and one Democratic Senator, yet until this year’s special election its House delegation contained 13 Republicans and 5 Democrats. And Ohio, which also voted twice for President Obama and has one Democratic Senator, has a House delegation of 12 Republicans and 4 Democrats. There are Democratic trifectas and Democratic gerrymanders too, but for much of the past decade Republican strength in the House of Representatives has been well above the Republican share of votes for House candidates, and this is due at least in part to gerrymandering.
As a result of Republican electoral success much of contemporary discussion of gerrymandering is partisan-inflected. But even apart from the partisan consequences there has been growing concern about the ability of legislators to use districting to protect their power so that instead of the people choosing their representatives, the representatives have been choosing their people.
Gerrymandering and the U.S. Constitution
The Constitution says little about districting. It requires that House seats be apportioned among the states according to population, and directs the state legislatures to determine the manner of House elections, although Congress may alter that. A federal statute requires the states to use single-member districts. The Constitution says nothing at all about state legislative elections.
In the ‘one person, one vote’ cases of the 1960s, the Supreme Court held that the Constitution’s Equal Protection Clause requires that electoral districts for the same legislative body must be of relatively equal population. But one person, one vote may perversely have facilitated gerrymandering, as the Court held that the equal population requirement freed legislatures from state requirements that they use city, town, or county boundaries for congressional or legislative districting.
The Court has also interpreted the Constitution to prohibit electoral plans that intentionally dilute racial minority voting strength. Congress, by statute, extended that to bar voting plans that have the effect of diluting minority voting strength.
Having spoken clearly about equal population and racial minorities, the Court has been uncertain whether and how to address partisan gerrymandering. A central issue is whether gerrymandering is ‘justiciable,’ that is whether there are ‘judicially discernable and manageable standards’ for determining whether a gerrymander is unconstitutional. As the Court has noted, districting has long been undertaken by partisan bodies and reflected partisan concerns. Attention to partisanship is not necessarily unconstitutional. In a 1973 decision involving a so-called ‘bipartisan gerrymander’ of a state legislature which intentionally created a lot of one-party districts but resulted in each party receiving a fair share of seats, the Court concluded there was no constitutional problem. Similarly, the failure of the party that won a certain share of votes to obtain a comparable share of legislative seats could not itself raise a constitutional issue because that will often occur in single-member district systems.
In 1986, in a case involving the Indiana state legislature (Bandemer v. Davis), a majority of the Court concluded that gerrymandering was capable of creating a justiciable claim under the Equal Protection Clause but that majority splintered over the test for determining whether a districting scheme actually was in practice an unconstitutional gerrymander. The plurality adopted a test that combined ‘intentional discrimination against an identifiable political group’ with ‘an actual discriminatory effect on the group’ which ‘occurs only when’ the plan ‘consistently degrades’ the targeted group’s political influence. The standard proved almost impossible to meet; over the next 18 years only one claim of partisan gerrymandering prevailed in the lower courts.
In 2004, in Vieth v. Jubelirer, the Court repudiated Bandemer but in a 4-1-4 vote failed to resolve whether partisan gerrymandering claims are justiciable. The plurality, in an opinion by Justice Scalia joined by four justices, held that partisan gerrymandering is nonjusticiable. Four dissenting justices would have found partisan gerrymandering claims justiciable, but they fragmented over the applicable standard for determining when a partisan gerrymander is unconstitutional. Justice Kennedy joined the plurality in rejecting Bandemer but he ‘would not foreclose all possibility of judicial relief if some limited and precise rationale’ for determining the unconstitutionality of gerrymandering were found. He noted that ‘new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties.’ He also raised the tantalising suggestion that gerrymandering claims be reframed in terms of the First Amendment’s prohibition of ‘burdening or penalising citizens because of their association with a political party.’
With the Delphic decision in Vieth, the Supreme Court largely removed itself from the debate over partisan gerrymandering for 14 years – until the current term.
The Supreme Court Returns
This year the Supreme Court heard two major cases which raise the possibility that the Court will significantly reshape the field – or once again withdraw. The two cases range widely over the gerrymandering issue. They deal with a challenge to the plan for an entire state legislative body – the state senate in Wisconsin, and with an attack on a single congressional district in Maryland. The former raises a new legal theory but is grounded in the Equal Protection Clause, while the latter is based on a more traditional focus on manipulated boundaries but presents a First Amendment argument. And, perhaps blunting the partisan valence of the gerrymandering question, the former – Gill v. Whitford — addresses a Republican gerrymander while the latter – Benisek v. Lamone – involves a Democratic one.
Gill brought to the fore a new legal theory – the so-called ‘efficiency gap.’ The theory begins with the idea that any vote not essential to electing the winner is ‘wasted.’ By that definition all votes for the loser are ‘wasted,’ as are all votes more than the fewest the winner needed to win. Votes for the minority party – such as Democrats in Republican-dominated Wisconsin can be wasted by the twin techniques of ‘packing’ and ‘cracking.’ That is, district lines can be drawn to ‘pack’ Democrats into overwhelmingly Democratic districts or to crack Democratic communities into multiple districts in which Republicans have a modest but clear edge. The ‘efficiency gap’ looks to the difference in ‘wasted’ votes cast for the two parties – the greater the gap the more effective the gerrymander. The plaintiffs in Gill computer-generated thousands of alternative districting plans, and also looked at the districting plans of dozens of state legislatures over several decades. They argued that the efficiency gap in Wisconsin was unusually large by historical standards and proved that the Wisconsin senate was intentionally and effectively gerrymandered to favour Republicans. While stopping short of formally embracing the efficiency gap theory, the lower court that heard the case agreed with plaintiffs that the plan was an unconstitutional partisan gerrymander.
Where the Gill plaintiffs attacked the state plan as a whole, Benisek challenges the redrawing of the lines of a specific district, which they claim was drawn with the specific intent and effect of changing it from Republican to Democratic. Their legal theory is that this intentionally burdened Republican voters because of their political beliefs in violation of the First Amendment; their evidence includes so-called ‘smoking gun’ statements by Maryland Democrats, who controlled the state government, that that was their intent.
The Supreme Court has heard oral argument in both cases, with decisions expected near the end of the Court’s term in June. Based on the oral arguments, it is difficult to predict what the Court will do.
One factor pushing for the Court to hold partisan gerrymandering justiciable and unconstitutional is the current doctrinal anomaly of treating racial gerrymandering as justiciable and unconstitutional, while exempting partisan gerrymandering from judicial review. The doctrinal difference has required courts to determine whether a particular districting plan was driven by racial or partisan concerns even though in many jurisdictions race and party are closely intertwined. Indeed, there is a districting case from North Carolina that combines the issues of race and party waiting in the wings for the Court for next year.
On the other hand, the oral arguments in Gill and Benisek demonstrated that many of the justices are deeply uneasy about the slew of politically-charged cases that ruling partisan gerrymandering to be justiciable and unconstitutional is likely to generate, as well as the difficult of agreeing on a judicially manageable standard that will allow partisan legislatures to continue to draw district lines and to take partisan considerations into account to at least some extent, but strike down districting plans that go ‘too far’ in advancing a partisan agenda.
About the author
Richard Briffault is the Joseph P Chamberlain Professor of Legislation at Columbia Law School.