Gerrymandering: The Corruption No One Talks About

[I wrote this essay in early April of 2016]

Political candidates, especially today, are fond of railing against ‘politics as usual’, ‘corporate influence’, ‘corruption’, ‘partisan politics’, and the ‘washington elite’. However, they very rarely mention a quiet, oft-overlooked form of election-rigging that — without breaking any laws — has made many incumbents invulnerable and, in doing so, hijacked the American political process. This is Gerrymandering: the strategic drawing of congressional districts for political purposes — a stain on American democracy.

Gerrymandering is enabled by two quirks of law: First, congressional districts can be drawn in any way as long as they are geographically contiguous and equal in population. (Levitt) Second, the people drawing the congressional districts are usually the intensely partisan state legislatures. While most people would like to believe that politicians respect the will of the people above all else, the truth is and always has been that their first priority is their own careers, their second priority is their political allies, and the popular will is in some nebulous area below. So, with those things given, it is hardly surprising that, when given the chance, politicians will exploit redistricting powers to ensure the best possible outcomes for themselves and their political allies. This crosses party lines and affects many states.

Although gerrymandering can feel like a modern issue, the term itself dates back to 1812, when Elbridge Gerry, the Democratic Republican governor of Massachusetts who would go on to become vice-president, signed a bill drawing some very unusual congressional districts. Although Gerry didn’t personally design the districts and only signed the law reluctantly, his name was attached to it and to the process of partisan redistricting when a cartoonist at the Boston Gazette referred to one particularly mangled district as a ‘gerry-mander’, calling it “A new species of Monster which appeared in Essex South District in January 1st” [italics and capitalization from original]. (The Gerrymander) However, even before the ‘gerry-mander’ appeared in Massachusetts, redistricting for political purpose was happening. In the first ever congressional districting, Patrick Henry strategically drew a Virginia district to favor his ally, future president James Monroe, over his enemy, father of the Constitution and future president James Madison. This means that gerrymandering is literally as old as the American government.

Today, however, the process has been refined to a fine art. Mathematics, surveys, and algorithms have replaced the educated guessing that Henry and the Massachusetts Democratic Republicans used to draw their districts. (Election Data Services) There is even a company, Election Data Services, that offers services in “consulting services for state and local legislatures and commissions with redistricting responsibilities”. In other words, they are hired by state legislatures to help rig elections. America currently has a system where a company advertises itself as contractor to help politicians rig elections, and this is all totally legal.

There are, however, some important limitations on gerrymandering. In cases where gerrymandering cases have been brought to trial, the courts have drawn a distinction between racial gerrymandering and partisan gerrymandering. Racial gerrymandering constitutes a violation of the 1965 Voting Rights Act. (Despite the Supreme Court’s invalidation of parts of the Voting Rights Act in 2012, they do not appear to have touched the gerrymandering provision) Therefore, racial gerrymandering is hard to pull off.

Partisan gerrymandering, however, is a completely different animal. The supreme court largely ignored political gerrymandering until the 1986 case of Davis v. Bandemer. In 1986, the State of Indiana was sued over some extremely partisan redistricting. A lower court sided with the Indiana Democrats, who brought the suit, but the Supreme Court overturned the decision. (Grofman 256) They confirmed that partisan gerrymandering was justiciable, meaning that it is a valid issue for the courts. The majority, led by Justice White, held that partisan gerrymandering was illegal and unconstitutional.

However, they placed more than a few caveats on that ruling. (Chapter 6) White wrote that “a failure of proportional representation alone does not constitute impermissible discrimination under the Equal Protection Clause” and “the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination.”. Regarding partisanism in gerrymandering, Justice White wrote that “Simply showing that there are multimember districts and that those districts are constructed so as to be safely Republican or Democratic in no way bolsters the contention that there has been a statewide discrimination against Democratic voters.”, despite the fact that it clearly does, to use Justice White’s words, “bolster the contention”.

But perhaps the two most important sentences in the Bandemer ruling come at the very end of Justice White’s opinion — his assertion that “Even if a state legislature redistricts with the specific intention of disadvantaging one political party’s election prospects, there has been no unconstitutional violation against members of that party unless the redistricting does in fact disadvantage it at the polls.” and “a mere lack of proportionate results in one election cannot suffice in this regard.” What Justice White stated in the first sentence is that simply attempting to rig an election through gerrymandering is not in an of itself illegal; it’s only illegal if that attempt to rig an election succeeds. In the second sentence he makes it quite difficult to prove that an election has been affected by partisan gerrymandering. Justice White had previously stated that “disproportionate results in one election (possibly two elections)” could not be realistically used to prove any kind of partisan gerrymandering, thus setting the standard for proof of unconstitutional partisan gerrymandering so high as to be nearly impossible to meet.

The Bandemer decision held until the 2004 case of Vieth v. Jubelirer, where the court basically ruled that it had no clear standard for what constituted partisan gerrymandering. Justices Scalia, Rehnquist, Thomas, and O’Connor, in the majority, wrote that “Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard promised by Bandemer exists. […] [N]o judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. […] [W]e must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.” In conclusion, Scalia wrote, “We conclude that neither Article I, § 2, nor the Equal Protection Clause, nor (what appellants only fleetingly invoke) Article I, § 4, provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.” (305) Justice Kennedy concurred with the plurality in their final decision, but opined that “to declare nonjusticiability [in political gerrymandering] would be incautious.” The dissenting opinions, written separately by Justices Stevens, Souter, and Breyer, each proposed different standards for determining the legality of a gerrymander, none of which really work. (Legal Information Institute) Justice Ginsburg joined with Justice Souter’s dissent.

Complaints regarding the practice of gerrymandering generally fall into three categories: that gerrymandering distorts the will of the voters, that it creates a more polarized political system, and that the idea of politicians drawing election districts to favor themselves is just fundamentally wrong. Let’s take these one at a time.

Gerrymandering does distort the will of the voters. Aside from the fact that distorting the will of the voters is inherent to the purpose of gerrymandering, there are multiple examples that confirm that this is true. For example, in the 2012 election in Pennsylvania, Republicans won 49% of the state’s popular vote. However, fully 72% of the state’s House delegation ended up Republican, with only three Democrats. This is due to a series of bizarre, contorted districts drawn by state Republicans in the 2010 redistricting. (Prokop) But this is far from an exclusively Republican problem; Democrats in New York state did exactly the same thing. In the same 2012 election, Democrats in New York received a sizable 66% majority of the popular vote, but won a disproportionate 21 out 27 congressional races (“the best explanation of gerrymandering”).

However, the gold standard of grotesque congressional districts is Maryland, whose districts are so gerrymandered that the state is currently being sued for racial gerrymandering (Barnes). Maryland’s 3rd district in particular is considered the most deformed, convoluted, horrifying, monstrous atrocity in a state filled with such horrors. Maryland’s 3rd has been compared to a blood splatter at a crime scene, an “Amoeba Convention” (Draper), a “Praying Mantis” (Ingraham), a “crazy-quilt”, and most memorably, by Judge Paul V. Niemeyer as a “broken-winged pterodactyl, lying prostrate across the center of the state.”. (Barnes) (It’s probably worth noting that, all politics aside, what Judge Niemeyer is really telling us is that he has no idea what a pterodactyl looks like). In 2014, protesters against the abomination that is the 3rd District, protesters staged a journey around the perimeter of the third district. The grand adventure required multiple boat crossings and took three days. (Johnson) Earlier this year, the Supreme Court unanimously ruled that the lawsuit could proceed, so it seems likely that within a few years, another supreme court case will be added to the story of gerrymandering and the legal system.

And Maryland isn’t even the uncontested leader. On average, North Carolina is just as bad, and dozens of other states have gerrymandering issues nearly as serious. In 2012, nationwide, Republicans got 18 more representatives than would be reasonable given the national vote. (“Most Gerrymandered Congressional Districts”) Taken alone, each one of these points would provide strong evidence that gerrymandering distorts the will of the people. Taken together, they are nigh-incontrovertible.

The second point, that gerrymandering is responsible for the rise in partisanship in Washington, goes in a very different direction when confronted with facts. There have been studies on whether gerrymandered districts are more partisan, and those studies have generally concluded that they aren’t. In the 2006 paper Does Gerrymandering Cause Polarization?, Princeton professor Nolan McCarty concluded that, in short, no. McCarty and co. examined how often politicians crossed party lines, and concluded that representatives from less contested districts were no less likely to be bipartisan than representatives from more contested districts. His conclusions have since been affirmed by other studies (Sides) showing that gerrymandering, whatever its flaws, is not why American politics has become so fiercely partisan. It’s worth noting that despite dispelling the idea that gerrymandering bears responsibility for increased political polarization, McCarty is very much of the view that gerrymandering constitutes “an invitation to overt corruption” and that gerrymandering must be abolished.

But the final point, that gerrymandering is a fundamental perversion to the very core of our democracy, is perhaps the most vital one. A system where politicians legally rig elections in favor of to keep themselves is fundamentally incongruous with American values, and more importantly, with (small-d) democratic values. The reason that gerrymandering continues despite its obvious clash with the very essence of democracy is that both sides of political game benefit from it at the expense of the American public. The only time when the two sides of our polarized political discourse can agree, it seems, is when they have a common enemy in the form of the people they are supposedly sworn to serve.

Even in heavily gerrymandered districts, minority party politicians are very well served by the system. Contrary to what one might think, gerrymandering doesn’t consist of the majority party making every district an easy, safe win — that would be impossible in a contested state. Instead, the majority party concentrates minority party voters into a few sacrificial districts, leaving the rest as moderately safe wins for the majority. This is why, despite the fact that eight of the ten most gerrymandered districts were drawn by Republicans, nine out of those ten districts were won by democrats. The Democratic representatives in these districts may be sacrifices that the Republicans make in order to preserve a disproportionate majority, but those Democratic representatives benefit from the system by getting a secure position. Both sides end up with easy elections to win, helping to explain why in 2014, despite congress’ abysmal 11% approval rating, 96% of representatives were re-elected. (Jacobson) In gerrymandered states, the congressional delegations and state houses are engaged in what can only be described as a bipartisan conspiracy against the public.

But the news is far from all bleak. In 2015, the Supreme Court heard a case gerrymandering case from Arizona. Arizona has an independent, nonpartisan committee that draws congressional districts, rather than having the state legislature do it. This has been in place for fifteen years, ever since the voters created it by referendum. After apparently waiting a while for some reason, the Republican legislature filed a lawsuit against someone, presumably their own constituents. The Court ruled, in a five to four split, that the voters of Arizona had the right to take the process of redistricting out of the hands of the legislature. This has potential consequences far beyond Arizona, as upwards of a dozen states are currently considering such measures. (Chappell)

In an election year such as this one, lots of politicians bring up America’s messy campaign finance system — as they should. But the issue of gerrymandering comes up much less often even though it arguably has a great deal more impact on how elections play out. Study after study has shown that corporate money can’t buy American elections; it can buy politicians, perhaps, but not elections. (Dubner)

Gerrymandering, by contrast, can change the outcome of elections — that’s the whole point. But politicians don’t pursue gerrymandering the same way that they pursue campaign finance. It’s possible that this is because most politicians see campaign finance reform as a more important issue than redistricting reform, but I suspect that the real reason is much less complementary to the politicians. Gerrymandering is the rare issue that puts the entire political class on the same side; even members of minority parties get strong job security from partisan gerrymandering. This commonality among our deeply divided politicians would normally be a good thing, but in this case, they are united by a common enemy, and that common enemy is the American public. Politicians who owe their power to gerrymandering are unlikely to dismantle the system, even if it’s the right thing to do.

This is clearly horrifying, but it makes one wonder: how often does this kind of thing happen? How often are politicians united across party lines by a common interest which is at odds with the good of the public? This seems like the kind of thing that happens more often at a local level while the public isn’t paying attention. In fact, gerrymandering may be exhibit A in this regard. If America’s gerrymandering problem is to be solved, it will need to be solved at the state and local level, which is where districting actually happens. But in this country, we tend to pay more attention to national politics than local politics.

Case and point: Flint, Michigan — a place that has come to symbolize government incompetence. No one paid much attention to local politics until after thousands of people had gotten lead poisoning. And Flint is far from the only place in America where state and local governments get away with murder (Sometimes, it seems, almost literally) while no one is watching.

This, perhaps, is the greater lesson we can learn from America’s gerrymandering problem: When we stop paying attention, and allow politicians to tell us what issues to think about, the results end up favoring the politicians rather than the American public. But the lesson here is not all doom and gloom — far from it! Recall that in Arizona, citizens finally got so fed up with gerrymandering that, by public referendum, they established a nonpartisan committee to draw districts. The state legislature, naturally upset at being deprived of the ability to rig elections, sued the committee and took the case all the way to the supreme court, which struck a blow for the American people. (Chappell) When reading about this, it’s worth noting that there’s nothing special about Arizona. Twenty-six states have some sort of referendum system, (States with Initiative or Referendum) and the results of the recent Supreme Court case suggest that any of these states could, if their electorate decided to, follow in Arizona’s footsteps and take down the gerrymander. This is what democracy really means. It means that we don’t have the luxury of undemocratic countries to throw up our hands in the air and blame the government. At the most basic level, the American people are the government. We aren’t able to make the excuse that we can’t make a difference. We can make a difference; we can stand up and make our government more accountable — Arizona proved that. The question isn’t ‘can we?’ but ‘will we?’

Will we?

Works Cited:

Levitt, Justin. “Where Are the Lines Drawn?” All About Redistricting. Loyola Law School Los Angeles, 2016. Web. 14 Apr. 2016.

“The Gerrymander (Reason): American Treasures of the Library of Congress.” The Gerrymander (Reason): American Treasures of the Library of Congress. Library of Congress, 27 July 2010. Web. 14 Apr. 2016.

“Election Data Services.” Election Data Services. N.p., n.d. Web. 14 Apr. 2016.

Grofman, Bernard N., Ed. Political Gerrymandering and the Courts. N.p.: Algora, 1990. ProQuest Ebrary. Web. 7 Apr. 2016.

“Chapter 6 — Partisan Gerrymandering.” Ed. Peter Wattson. Redistricting Task Force for the National Conference of State Legislatures, 31 Oct. 2003. Web. 07 Apr. 2016. <http://www.senate.leg.state.mn.us/departments/scr/redist/red2000/ch5parti.htm>.

Davis v. Bandemer. United States Supreme Court. 30 June 1986. FindLaw. Web. 7 Apr. 2016.

“VIETH V. JUBELIRER.” Legal Information Institute. Cornell Law School, 10 Dec. 2003. Web. 15 Apr. 2016.

Prokop, Andrew. “What Is Gerrymandering?” Vox. Vox Media, 15 Apr. 2014. Web. 14 Apr. 2016. This article gives specific, indisputable examples of actual cases where gerrymandering subverted democracy.

Ingraham, Christopher. “This Is the Best Explanation of Gerrymandering You Will Ever See.” Washington Post. The Washington Post, 1 Mar. 2015. Web. 14 Apr. 2016.

Barnes, Robert. “Supreme Court Says Challenge of Maryland District Lines May Proceed.” Washington Post. The Washington Post, 8 Dec. 2016. Web. 15 Apr. 2016.

Draper, Robert. “The League of Dangerous Mapmakers.” Atlantic Oct. 2012: n. pag. The Atlantic. Atlantic Media Company. Web. 15 Apr. 2016.

Ingraham, Christopher. “America’s Most Gerrymandered Congressional Districts.” Washington Post. The Washington Post, 15 May 2014. Web. 15 Apr. 2016.

Johnson, Jenna. “Is This How Maryland’s 3rd Congressional District Is Supposed to Look?” Washington Post. The Washington Post, 21 Sept. 2014. Web. 15 Apr. 2016.

Sides, John. “Gerrymandering Is Not What’s Wrong with American Politics.” Washington Post. The Washington Post, 3 Feb. 2013. Web. 15 Apr. 2016.

Jacobson, Louis. “Congress Has 11% Approval Ratings but 96% Incumbent Reelection Rate, Meme Says.” Politifact. The Tampa Bay Times, 11 Nov. 2014. Web. 14 Apr. 2016.

Chappell, Bill. “Supreme Court Backs Arizona’s Redistricting Commission Targeting Gridlock.” NPR. NPR, 29 June 2015. Web. 07 Apr. 2016. <http://www.npr.org/sections/thetwo-way/2015/06/29/418521823/supreme-court-backs-arizonas-redistricting-commission-targeting-gridlock>.

Dubner, Stephen J., Stephen Levitt, and Kai Ryssdal. “Does Money Really Buy Elections?” Freakonomics. N.p., 12 Jan. 2012. Web. 01 May 2016.

“States with Initiative or Referendum.” Ballotpedia. Lucy Burns Institute, n.d. Web. 01 May 2016. I used this source to find out which states have the referendum.