The Lesser-Known Way to Gerrymander
Ideally compact and cohesive congressional districts in some states can be just as unfair as the complex, meandering shapes of classical gerrymandered districts in others.
Gerrymandering has a long history, with congressional districts being contorted into complex, meandering shapes for partisan advantage. The term “gerry-mander” was coined in 1812 to satirize the districts for the Boston area proposed by Governor Elbridge Gerry that resembled the shape of a salamander.[1]
But gerrymandering has been turbocharged in the last decade, by mountains of data and enormous computing power and the Supreme Court decision in Vieth v. Jubelirer (2004). That ruling made partisan gerrymandering de facto legal, because it was not explicitly outlawed (like racial gerrymandering) and because it made challenging partisan gerrymanders very difficult. Consequently, examples of extreme gerrymandering abound today.[2]
That same computing power and data enables a less obvious and therefore more insidious form of gerrymandering.
Classic Gerrymandering
The essence of classical gerrymandering is assembling seemingly random collections of small pieces of geography into congressional districts and intentionally optimizing the collection for partisan advantage — either directly based on the prior election results, voter registrations, etc. of those fragments or indirectly based on their aggregate race, ethnicity, income, etc. — with little regard for compactness and cohesiveness.[3] The results are meandering congressional districts with complex, byzantine shapes.
Baseline Congressional Districts
A natural instinct is to assume that if we could simply remove political consideration from the redistricting process, the resulting congressional districts would be fair.
In a previous article, I introduced the notion of baseline congressional districts that optimize neutral traditional districting principles — contiguity, using decennial census data, having roughly equal populations, compactness, and cohesiveness — while ignoring political considerations.[4],[5],[6] Baseline districts look much more natural to the layperson and are easy to describe, being largely composed of entire counties instead of long meaningless lists of thousands of tiny precincts.
Political Geography
Due to the vagaries of political geography though, where different kinds of people live in a state, baseline districts are not necessarily fair politically. Justice Kennedy understands this. There may be naturally occurring discriminatory effect due to liberal/conservative urban/rural polarization[7] or the distribution of minorities throughout a state, race and ethnicity being a close proxy for aggregate voting tendencies. Virginia and Maryland provide interesting examples of such natural skew.
No Accidental Districts
In Will the Supreme Court Only Close the Door on Partisan Gerrymandering Halfway? I argued that excessive discriminatory effect prima facie demonstrates discriminatory intent, that the standard for intent could be collapsed into the standard for effect. Underpinning that argument was the realization that, due to cheap computing power, states can now, for all intents and purposes, feasibly consider all possible district configurations.
Moreover, states can easily evaluate the degree of partisan asymmetry of different plans, using the ‘efficiency gap’.
Consequently, because every state has congressional districts that are not excessively asymmetric, district plans are choices, and the degree of partisan advantage in a set of congressional districts was intentional.
Implicit Gerrymandering
Tying this all together, classic gerrymandering is explicit, involving acts of commission: intentionally distorting district shapes for partisan advantage, based on the characteristics of people in various location, including direct indicators of partisanship or indirect proxies for it.
In contrast, a lesser-known kind of gerrymandering is implicit, involving acts of omission: intentionally not distorting district shapes to mitigate the state’s naturally skewed political geography. In other words, implicit gerrymandering is the adoption of simple, natural looking congressional districts that are relatively compact, despite a skewed political geography.
In these cases, states will argue that they merely drew congressional districts using neutral districting principles, in particular compactness. While that may be true as far as it goes, it obscures the fact that they did not need to explicitly gerrymander to gain partisan advantage. Their acts of omission have foreseeable consequences. They could have “reverse gerrymandered” their congressional districts, to reduce the discriminatory harm resulting from the state’s political geography. In other words, they could have chosen districts that were less compact and cohesive, to make them more fair.
Conclusion
At its core, partisan gerrymandering is about drawing district boundaries for partisan advantage. In the past, that has meant creating wildly shaped districts that as Rorschach tests have reminded people of many things, including salamanders. Increasingly, gerrymanders may be less overtly visible. Hence, the need for a measure of discriminatory effect like the efficiency gap that is independent of the shape of congressional districts.
The overall standard for partisan gerrymandering that I sketched in a previous article encompasses both explicit and implicit gerrymandering.
UPDATE: For an in-depth and more formal analysis using the 2000 election in Florida as an example, see Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures by Jowei Chen and Jonathan Rodden.
This is the fourth in a series of articles on redistricting and partisan gerrymandering.
[1] https://en.wikipedia.org/wiki/Gerrymandering#/media/File:The_Gerry-Mander_Edit.png
[2] https://www.washingtonpost.com/news/wonk/wp/2014/05/15/americas-most-gerrymandered-congressional-districts/?utm_term=.8e66a67ebdfd
[3] “Cohesion” is shorthand for the traditional districting principle of respect for political boundaries & topographical features, e.g., regions, counties, cities, towns.
[4] “Voting Rights and Democracy: The Law and Politics of Districting,” Richard K. Scher et al.
[5] “The Traditional and the less Conventional, but never dull, Cast of Redistricting Principles,” Karin Mac Donald, retrieved from http://redistrictinginstitute.org/wp-content/uploads/2011/01/Traditional-Redistricting-Principles-Karin-Mac-Donald.pdf.
[6] “The Realist’s Guide to Redistricting: Avoiding the Legal Pitfalls,” J. Gerald Hebert.
[7] https://thinkprogress.org/supreme-court-snatches-victory-away-from-the-forces-of-gerrymandering-8a92d35b87db#.fmb1fmt5i
