To Solve the Problem of Partisan Gerrymandering, Use the Wisdom of King Solomon
We need to get this problem solved and get to the serious challenges that face our nation.
What is Gerrymandering?
Gerrymandering is the process of drawing the lines in electoral districts to give an advantage to a particular side. Gerrymandering can be used for good purposes. In Shaw v Reno, 509 U.S. 630 (1993), the Supreme Court noted that ‘Districts must also adhere to the provisions of the Voting Rights Act, and may not be based on racial discrimination, although minority representation may be considered in drawing district lines, so long as race is not the overriding, predominant consideration in drawing district lines. ’ Gerrymandering is most often used for the nefarious purpose of giving one political party an advantage over the other political party. See the map below for an example of how misshaped a district can become for these partisan purposes:
This map is from the website Reclaim the American Dream.
The map shows that Democrats are just as guilty of using gerrymandering as Republicans. The Republicans have just done a better job with it. In 2010 and 2012, Democrats won the popular vote in North Carolina. In 2010, the Democrats won 7 out of 13 congressional seats in North Carolina. In 2012, under the Republican-drawn map, Democrats still won the popular vote. Yet, the Democrats only won 4 out of 13 congressional seats.
The Harmful Effect of Gerrymandering
See the graph below to see the lack of competitive elections.
This graph and table show that elections for the House of Representatives are no longer competitive. Almost 90% of these House elections had a margin of victory in the double digits. Only 5.75% of these elections show as being truly competitive. If these elections are not going to be competitive, then why are we voting at all? Why are districts gerrymandered to such an extent that one side is almost guaranteed of winning in 90% of these elections?
In 2018, the Democrats won the popular vote by a margin 51% higher than the Republican margin in 2014 (8.6–5.7/5.7). However, the Democrat percentage margin in the House in 2018 was 39% (13.6–8.3/13.6) less than the Republican margin in the House in 2014. How does this happen?
All 435 members of the House of Representatives must be reelected at the end of every two-year term. How is it that the Republicans gained a larger margin in the in 2014 with a smaller victory in the popular vote than the Democrats in 2018? We can’t blame the Electoral College. The Electoral College only applies in presidential elections. We can’t blame the effect of smaller states having the same number of representatives. That argument only applies to the Senate.
The only answer to this mystery is the dilution of the vote in Democratic-dominated areas due to partisan gerrymandering. In the 2010 elections, Republicans won control of their highest number of state legislative chambers since 1952. These Republican-led state legislatures drastically redrew the congressional districts after the 2010 census.
Some Solutions Proposed for the Gerrymandering Problem
Wikipedia mentions a few solutions to gerrymandering. Alternative voting systems are one such solution. These alternative systems seem to fall into two camps. Some versions take the election of the districts’ congressman out of the hands of the voters of the district with at-large elections. The other alternative is cumulative voting which may be a good idea for other purposes, but would not solve this problem.
Another popular solution is that the district lines be drawn by ‘non-partisan’ commissions instead of the state legislatures. There are a few problems with this system. First, the truly non-partisan person is hard to find. Second, this system inevitably leads to litigation. Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015), is a case where the Supreme Court upheld the constitutionality of state election commission’s power to redraw the districts during reapportionment instead of the state legislature. In other states that attempt this method, you can expect cases challenging the constitutionality based on any slight variances from the Arizona law. Most litigation will come from accusations that these commissions are engaging in gerrymandering or violations of voting rights acts. Consequently, the courts will remain the ultimate decider of congressional district boundaries.
The Wisdom of Solomon is the Best Solution
This isn’t the 19th Century when congressional districts needed to follow natural boundaries for the sake of convenience. This is the 21st Century. A congressman can cross over any river or mountain to get to his or her constituents. The most important consideration today is that each resident of a district has their own particular congressman and that each resident has an equal and undiluted vote.
The best solution to the gerrymandering problem is to follow the wisdom of King Solomon. The states should be sliced with near perfect horizontal and vertical lines. Congressional districts need to be rectangular except for sides made imperfect by boundaries with other states, international boundaries, and coastlines. This solution is similar to the way King Solomon ordered the splitting of the baby to solve the hopelessly complicated problem of which woman was the mother of a baby. Here, we are determining which district gets which votes. In the past, this ‘slicing and dicing’ of states would have been very difficult. Today, with modern computer software, we can achieve these rectangular districts of appropriate population sizes without unduly burdensome effort. Obviously, the size of these rectangles would vary greatly.
It would not be possible to make these lines perfectly straight. We would not want one side of a house to be in one congressional district while the other side is in a different congressional district. Still, we have enough geographical data, e.g., GPS maps data and census data, to make this work. Again, such a system would not be unduly burdensome.
This proposed solution would greatly reduce controversy, but would not eliminate it. This anti-gerrymandering provision would need to be a constitutional amendment. This is necessary because federal congressional districts are drawn by state governments. If not handled at the constitutional level, such a provision would be struck down as unconstitutional.
I propose that we go further. Gerrymandering needs to be eliminated for the state legislative districts also. State legislative redistricting should only be exempt from this amendment where a state legislative chamber’s districts are based on equal representatives for each county within the state; similar to the U.S. Senate’s equal representation among states.
These provisions would not need to be extended to districts in municipal elections. The reason is that municipal officials are not empowered with the ability to amend the Constitution. State legislatures have to ratify any amendment to the Constitution. This ratification power over the Consitution means that state legislative redistricting must be covered by the anti-gerrymandering amendment. Having this power means that deficiencies in the election of one state’s legislature could affect the people of other states when determining if a constitutional amendment should be ratified.
The Elections Court
Even with the simplicity of this amendment, there will still be litigation. A special Article I Elections Court should be created for the sole purpose of hearing redistricting controversies. This court should have the power to redraw district boundaries where necessary. This court should have a special appeal process so that appeals from the court go straight to the United States Supreme Court. The Supreme Court chooses the cases it hears. With such a black and white process provided by constitutional amendment, it is doubtful that the Supreme Court would grant certiorari more than a couple of times per century. Having this special appeal right would keep these cases from burdening the regular federal court system.
By having this special court process for redistricting matters, the problem of delayed justice is solved. Litigation involving redistricting is one of the finest examples of the legal maxim, ‘Justice delayed is justice denied.’ Quick resolution of these apportionment cases is very important. Delayed resolution denies the rights of all voters within a state. The election process is the most important process within our American government. The outcome of elections depends on the courts’ holdings in these matters.
Will Rectangular Districts Harm Minority Representation?
There are potential costs for banning gerrymandering. There would be a reduced ability to ensure minority representation. This undesirable effect would be minimal because many rural minority regions are contiguous, e.g., the Mississippi Delta region in the state of Mississippi. Many large cities have large minority populations that would still be well represented. This special Elections Court would make sure that districts meet the goal of sufficient representation for minorities without having to resort to gerrymandering.
For an example of how easy this would be, I will analyze the effect on African-American representation. Note that 6 of the top 25 largest cities in America have African-American mayors. The smallest of these cities has a population of 621,000 while the largest has a population of 8,175,000. The population of the average congressional district is 711,000. 12.3% of the national population is African-American, yet 24% of the mayors of these 25 largest cities are African-American. My point is that a change to rectangular districts would not prevent us from maintaining congressional representation for minorities.
Gerrymandering is one of the easiest electoral problems to solve. Our nation has been harmed by the gerrymandering issue since its founding. According to Wikipedia, the word ‘gerrymander’ is the combination of the last name of the Governor of Massachusetts in 1812, Elbridge Gerry, and a ‘salamander’ since the districts for the 1812 reapportionment of Massachusetts was said to look like salamanders. The same Wikipedia article states that in 1788, Patrick Henry allegedly drew congressional lines in an irregular pattern to try to keep James Madison out of Congress. This is a very old problem and it needs to be fixed. Our nation has a lot of complex issues that need attention. Gerrymandering is just a distraction of resources. We need to finally get past this gerrymandering foolishness. We need to dedicate all our resources to the serious business of governing our nation.