Political Gerrymandering Explained

Political Law

What is political gerrymandering?

Simply put, it's a sly method that state officials may use to draw district lines so they can influence election results.

State legislators control the process of allocating people into voting districts ("districting"). When you look at the map of the Congressional districts in a state, you will see the results of their efforts. Districting can influence the outcomes of elections because determining which voters are in which districts can alter the district majorities. For example, a political party that has 45% of public favor and 3 districts by which to allocate people could ensure that 2 districts go in its favor. It could put a "supermajority" of the other party's voters in one of the districts. 

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When the party in control of the map-drawing process draws the lines to its own advantage to the detriment of the disfavored party, it engages in political gerrymandering. Sometimes mapmakers get so specific with carving that the district shapes end up looking pretty bizarre. In the instance that gave the "gerrymander" its name, Massachusetts Governor Elbridge Gerry was said to have created an election district that looked like a salamander.

How is it different from racial gerrymandering?

Racial gerrymandering is districting to the disadvantage of race (instead of partisanship). Where political gerrymandering is acceptable in our society (to an extent), racial gerrymandering to any degree is unacceptable. That's because our Constitution bans discrimination on the basis of race. We have years of struggle to thank for that.

Because racial gerrymandering is never acceptable, not to any degree, the courts can more determinately spot it and extinguish it. Of course, discovering intent to discriminate is not trivial, but it's easier than what must be done to decide if political gerrymandering is ok - which is to identify it and then to decide how much of it will be tolerated. As we reported here, articulating how much political gerrymandering will be tolerated is a question that has stumped the Supreme Court for years.

What is neutral districting?

If gerrymandering is a biased method of line-drawing, what is a neutral method? How would a completely neutral party draw district lines to be as fair as possible? Courts' evaluations of districting have led to the discovery of several principles: compactness, contiguity and near-equal population allocation. Compactness and contiguity both relate to the physical spaces drawn. A district should be compact (not spread out) and contiguous (the territory must share all the same border). If you think of the salamander example (see our Gill v. Whitford graphic for the image), the district is contiguous but not quite compact. The third principle, near-equal population, just means that the mapmakers must not put 200 people in one district and 20,000 in another; try to be relatively equal.

Why is political gerrymandering acceptable?

It all started because Square 1 - the natural state in need of districting - was not suited for districting perfection. Natural patterns of settlement do not give way to perfectly fair Platonic squares of districting. Justice Scalia pointed this out in the Vieth v. Jubelirer majority opinion:

"Consider, for example, a legislature that draws district lines with no objectives in mind except compactness and respect for the lines of political subdivisions. Under that system, political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a 'natural' packing effect."

And once we admit that a planning process must happen, we can expect a party to take advantage. Justice Stevens dissented in Vieth with a comment to that effect: "[I]t is neither realistic nor fair to expect [elected officials] wholly to ignore the political consequences of their decisions."

Moreover, once one party has had its biased chance at making an allocation, the next party isn't working with a blank slate. It might seem fair, in this light, that when another party comes to power, it could sway the lines back. To some extent, each party can see gerrymandering as only fair to even things out.

The consensus, in the end? "Political factors are common and permissible elements of the art of governing a democratic society." Justice Stevens, Vieth Dissent.

Will the Supreme Court decide how far is too far?

Court-watchers are hopeful the Justices will decide how far is too far when it comes to political gerrymandering. Everyone agrees that a party cannot gerrymander itself into a complete entrenchment of power for the rest of time. But where’s the line? Can a political party gerrymander itself into a 70% entrenchment for 10 years? How can we even judge how much of the entrenchment resulted from gerrymandering, when it's too hard to figure out exactly who votes versus who would have voted for the various parties in each given election? These are the questions the Supreme Court was asked to tackle in several cases last term and again this term.

Last term: The Supreme Court evaluated two cases last term (the 2017-2018 term) involving political gerrymandering (Gill v. Whitford and Benisek v. Lamone). The Justices decided both Gill and Benisek from last term on technicalities, without articulating the standard on political gerrymandering. The Justices remanded Gill to sort out a procedural issue (standing), and side-stepped the merits in Benisek by focusing on other elements.

This term: This Supreme Court term (2018-2019), Benisek is back, but the tables have turned. When the Supreme Court looked at the case last term, the case was in pre-trial status. Republicans challenged the Democratic-drawn maps and the challengers had tried to get the Court to block the map from going into effect. They claimed the harm was so imminent and important that the court should prevent the maps from going into effect while the trial was ongoing. The Maryland lower court would not allow the temporary stay, and the Supreme Court supported the Maryland court.

However, once the case went back and all of the evidence was obtained and evaluated (i.e. the court carried out the trial), the Maryland federal court ruled for the challengers. The court held the Democrats had engaged in illegal political gerrymandering. In March, the Court will hear Lamone v. Benisek, in which the Democratic state officials now are asking the Supreme Court to reject the reasoning of the Maryland district court.

Also up on the same day is a political gerrymandering case out of North Carolina. In Rucho v. Common Cause, a North Carolina federal court ruled that Republican state officials had illegally gerrymandered the state’s federal congressional map. Now, the Republican officials are appealing. They argue that the North Carolina court has not provided a proper standard by which to determine political gerrymandering cases and furthermore that these cases aren’t “justiciable” because any standard would be unworkable.

Stay tuned for the decisions.


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