The Supreme Court last week decided that it will grapple head-on with the thorny and contentious question of partisan gerrymandering, i.e., the drawing of legislative district lines to favor one party over the other, by intervening in a Wisconsin electoral matter. This issue could have significant impact on the American political system no matter which way the justices rule. And, ironically, a victory for gerrymandering may ultimately lead to its defeat.
Taking its name from an early practice by Declaration of Independence signer Elbridge Gerry, later Governor of Massachusetts, gerrymandering has long been a staple of American politics. Now, the modern era of computerized “big data” about voters, combined with sophisticated mapping software, has taken gerrymandering to a new art form.
Through “cracking,” dividing a targeted group among adjacent districts so that they are a minority in all of them, and “packing,” creating districts where the targeted group is an overwhelming majority but thus a minority in the surrounding districts, the drawing of district lines can make the election results. On a statewide or federal level, it is even possible that the party with fewer votes ends up winning more seats. The Supreme Court has long held that gerrymandering that targeted racial minorities to dilute their representation is unconstitutional.
However, gerrymandering for partisan purposes has never been held to be a legally justiciable issue.Republicans and Democrats both push as hard as they can, when they can, in the state legislatures they control. Particularly crucial is the legislative session after each decennial census. That’s when state legislatures redraw Congressional district lines to make them compatible with another Supreme Court intervention in electoral politics: The notion that districts must be of equal size in order to preserve the principles of “one man, one vote.”
Legislative prerogative or dirty trick?
Some states have solved the looming conflicts of interest by taking redistricting out of the hands of state legislators and giving it instead to an independent commission.
The potential value of an independent commission is well demonstrated by Wisconsin itself. In this case now before the Supreme Court, the Democratic voter plaintiffs are seeking to articulate a mathematical standard based upon the mathematical gap between a politically “neutral” map, and the map drawn by the legislature. They want the U.S. Supreme Court to endorse a mathematical standard based on how many “wasted votes” each party “loses” under the “neutral” map, versus the legislature’s map. To measure this difference, the plaintiffs are proposing a formula that would count how many extra “wasted votes” each party has in districts beyond that which is needed to win. A party with a higher score of “wasted votes,” the theory goes, has been more disadvantaged by the legislatively-drawn map because its voters are more “packed” into the districts won by that party won. In Wisconsin, the plaintiffs argue, this formula allegedly proves how disfavorable to Democrats are the state legislature’s districts.
Wisconsin’s Republican legislators disagree, of course. In fact, advocates of keeping such decisions with the state legislature say that district lines reflect not just simple math and geometry, but also considerations of communities of interest and self-identification. Local counties like municipalities and counties are generally loath to be divided by district lines. Neighborhood affiliations and sense of self-identification as a local political community is often subjective and highly dependent on local knowledge and interests. It is the elected representatives themselves, this argument runs, are the ones who best know the local facts and are politically accountable to local voters.
In this particular case, Republican legislators say the apparent advantage given to candidates from their party isn’t because of “packing” or “cracking,” but is instead an inherent function of the state’s political geography. The state’s Democrats are heavily concentrated in the big cities of Madison and Milwaukee, both of which are overwhelmingly deep-blue. Republicans dominate the rest of the state, including the suburbs and the rural areas, although not by much.
There are a lot of safe Republican districts where the Democrats may still get a up to a third of the vote. But in the overwhelmingly Democratic cities, there are state legislative districts where Barack Obama and Hillary Clinton both won more than 90 percent of the vote. In other words, it’s not the legislature that has “packed” and “cracked” Democrats in Wisconsin: It’s just the objective geography of where the Democrats in the state live.
How Far Is Too Far?
These arguments can be persuasive. But many Americans still find gerrymandering to have the strong whiff of self-dealing to it. It smacks of political parties trying to rig elections in their favor. The ferocity with which Republicans and Democrats fight over it seems only to confirm that.
Independent redistricting commissions, where adopted, have generally proved popular and quickly become an accepted and routine part of how the political system works in that state. But the Supreme Court cannot mandate that states adopt this alternative. They are only permitted to look at state laws to decide if the partisan advantage amounts to a violation of equal protection, even absent racial discrimination. So while there have been a great many racial gerrymandering cases reaching the court, few of them articulate a coherent standard for lower courts.
The alternative is that the high court will decline to hold that gerrymandering for explicit partisan gain is unconstitutional. While in a sense this would preserve the status quo, in actuality, such a seal of approval might exacerbate the practice.
But if on the other hand, partisan gerrymandering is nakedly permitted, voters may well revolt. That could force more independent redistricting commissions across the 50 laboratories of democracy as a bulwark against a permitted-but-still unpopular political process.
(Image of voters casting their ballot in the national election at Cannon Pavilion on November 8, 2016 in Milwaukee, Wisconsin. Photo by Darren Hauck/Getty Images.)