In the Nation's Interest

Is Gerrymandering Unconstitutional?

This year, the Supreme Court is once again being asked to resolve a controversial political issue – the redrawing of electoral district boundaries for partisan advantage. The Court kicked off its 2017-18 term with oral arguments for Gill v. Whitford, a case involving how the Wisconsin State Assembly divvied up their state into new legislative districts in 2011. The federal district court that first heard the case ruled the state’s redistricted map constitutes an “unconstitutional partisan gerrymander.” Now it’s up to the highest court to decide if that ruling stands.

That’s a lot of adjectives – let’s break this down

First, a bit of background: the case before the Court concerns redistricting, or the process of redrawing legislative districts. These geographic boundaries determine the political races in which we vote. States are mandated by law to assess their legislative districts every 10 years to coincide with the latest Census data on population change. Because people move around, voting districts need to be adjusted periodically – this ensures every district has an equal number of people, which in turn, helps ensure every voter is represented equally.

Sounds like a pretty good idea for a representative democracy – why all the fuss?

The fuss is over how legislators – from both political parties – increasingly are using redistricting to impact election results.

This brings us back to Wisconsin’s potential “unconstitutional partisan gerrymander” map. Partisan gerrymandering means district boundaries are redrawn to give one political party an electoral advantage over another.  In most states, legislators can use what they know about their citizens - which is quite a lot - to craft districts with the explicit intent of increasing the likelihood of election results that benefit their own political party. One way this is done is by drawing lines to cluster the opposition’s voters into one or a few districts, which is known as “packing.” Another is by drawing lines to diffuse the opposition’s political strongholds, which is known as “cracking.” Both of these strategies are designed to dilute voter influence.

If this sounds like it undermines the integrity of our democratic process, that’s because it does.

Here’s how it works: say we have a state with 10 districts, where 60 percent of the electorate are registered Democrats and 40 percent are registered Republicans. Depending on how Democrats and Republicans are geographically distributed across the state, you might expect approximately 6 Democrat legislators and 4 Republican. But hold on – Democrats control the state legislature and decide they aren’t comfortable with this margin. When it comes time to adjust the district map, the legislators decide to draw district boundaries such that 8 out of 10 districts include a majority of registered Democrats.

(If you’re more of a visual person, check out this illustration that shows how the same population can be sliced and diced to create three very different electoral outcomes).

Essentially, redistricting allows politicians to choose their constituents, rather than the other way around. And our elected leaders often are very creative when making their choices; just look at Pennsylvania’s 7th district (which is Republican) and Maryland’s 3rd (which is Democratic):

While it’s true you can’t always tell a gerrymandered district by its shape, in states like PA and MD, it is obvious that these districts were designed with something else in mind besides accounting for population density, or even ensuring an established community is well represented. Maryland’s district is one highway-width away from having an actual hole in its center, and PA’s 7th appears to be trying to set some obscure record for number of horseshoe shapes on a map.  

While redistricting for partisan advantage has a long history in America, it has become increasingly common, so much so that an entire cottage industry has developed to support it, complete with influencershigh-tech map-making software, and its own set of  sophisticated algorithms for sorting out voters.

So, is partisan gerrymandering unconstitutional?

Maybe. For many observers it is, whether the courts say so or not. But this isn’t the first time the Supreme Court has heard a case on partisan redistricting, and while the Supreme Court never has ruled a redistricted map to be unconstitutional, it also hasn’t said it never will. In addition to resolving whether the lower court had jurisdiction in the first place, the Court also is likely to address whether partisan gerrymandering cases generally can be taken to court – and that’s where this case could be a real gamechanger.

The critical issue that has deadlocked the Supreme Court in the past is whether a standard by which to identify excessive partisan gerrymandering is even possible. Without a standard, it doesn’t much matter if a court thinks partisan meddling in district boundaries violates the Constitution. Advocates of fairer redistricting laws hope that the Wisconsin case – in which the original plaintiffs rely on a statistical measure known as the efficiency gap to prove the state’s map excessively favors the Republican party – will turn the tide. Other techniques to measure partisan influence exist as well – in fact, according to one group of political scientists, three different tests indicate that Wisconsin’s map is the result of unconstitutional partisan gerrymandering.

Why we should care

Politicians across the country are hijacking a process designed to ensure every community has a voice.  In its place they are creating impenetrable safe zones that not only contribute to reduced competition and greater partisanship, but also lead to legislative delegations that don’t accurately represent the views of the people. If a majority of citizens vote for one party, but the other party ends up with 80 percent of congressional seats, it’s unlikely that the state’s delegation will enact policies that reflect the views of the overall electorate. And this actually happens. And both political parties are guilty.

Because of the way our representative democracy is structured, when politicians so egregiously shift where your vote is counted, they are effectively deciding if your vote counts. We shouldn’t be letting legislators draw their own districts in the first place. With the federal government gearing up for the 2020 Census, let’s hope the Supreme Court has something to say about protecting our constitutional right for equal representation. Regardless of the outcome, we should all be paying close attention to this ruling as it will likely have a real impact on local, state, and national politics for years to come. 

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