A Lesson in Politics: Gerrymandering

Elections never seem to leave the news cycle these days. Between 45’s administration constantly circling back to the 2016 election and Russia, elections are always a relevant topic. But last week, elections were in the news for another reason — the Supreme Court finally heard another case on the constitutionality of gerrymandering. It’s time for the Supreme Court to throw its hat in the ring, fix this problem once and for all and deem partisan or political gerrymandering unconstitutional.

Do you need more context on gerrymandering and why the Supreme Court is involved? Great. Keep on reading.

What is gerrymandering? Where does it come from?

Gerrymandering is the process of manipulating the boundaries of electoral districts to favor or provide political advantage for a particular political party. In the United States, this practice often disadvantages a particular demographic by grouping people who identify a certain way (it’s sometimes racial, sometimes party driven) into one district or spreading them out amongst many districts. Either way, the manipulation of the district map makes it harder for voices of the identity group or groups to be heard.

The term gerrymander goes back to an article in the Boston Gazette on March 26, 1812. The article was a reaction to Governor Elbridge Gerry redrawing the Massachusetts State Senate election districts to favor the Democratic-Republican Party — this is where the “gerry” comes from. “Mander” comes from the shape of one of the districts he redrew — it looked like a salamander.

In the election of 1812, the Federalists won the Massachusetts House and the governorship… but the State Senate remained in control of the Democratic-Republicans. Governor Gerry’s crazy redrawing achieved its goal. It is unclear who coined the term gerrymander, but most historians give credit to Nathan Hale, and Benjamin and John Russell who were Federalist newspaper editors. There is evidence that the phrase was printed in numerous Federalist publications throughout 1812 and historians believe it was used in attempts to disparage Governor Gerry.

The term gained popularity through political cartoons. The cartoon depicted a dragon-like animal with wings and claws. The cartoon is attributed to Elkanah Tisdale, who cut woodblocks that were used to print the cartoon in the papers.

There are four types, or tactics, of gerrymandering: cracking, packing, hijacking, and kidnapping. “Cracking” is when a type of voter is spread out amongst many districts, preventing the type of voter from having a sufficient voter bloc. “Packing” is when a type of voter is packed into one district as to prevent their voices from being spread into numerous districts and reducing their influence on their elected officials and other constituents. “Hijacking” is when two districts are redrawn to force two incumbent candidates to run against each other, which means that one will not win reelection. “Kidnapping” is when districts are redrawn to relocate a voter bloc that supports a particular candidate into a different district, making it harder for the candidate to win the election.

If you’re interested in learning more, the Washington Post has a great explanation of gerrymandering that dives deep, showing you visual representations and breakdowns of each result. They also have a video explanation, which you can find via the article above.

Has this issue gone to the Supreme Court before?

Yes. In 2003, the Supreme Court heard Vieth v. Jubelirer. After the 2000 census, Pennsylvania lost two House seats and the Republican-controlled state legislature passed a redistricting plan that clearly favored their party. Members of the Pennsylvania Democratic Party sued, arguing that the redistricting plan violated the “one-person, one-vote principle of Article I, Section 2 of the Constitution, the Equal Protection clause, the Privileges and Immunities clause, and the freedom of association.”

In the district court, all claims were dismissed except the Article I, Section 2 claim. They held that while the voters could prove that they would be represented by Republicans, they did not prove that they would be denied representation — basically, they were not denied the right to vote, to be placed on the ballot box, to associate as a party, or express their political opinions. The Article I, Section 2 claim remained, however, because the new districts were different sizes, violating the one-person, one-vote principle.

The Supreme Court tried to determine: whether the redistricting plan was manipulated for political reasons; whether a state can violate the Equal Protection Clause when it makes a decision that disregards neutral redistricting principles that ultimately benefit one party over the other; and whether the state exceeded its authority under Article I of the Constitution when it redraws districts to allow a minority party to win a supermajority of the seats?

Ultimately, the Supreme Court was split and decided not to intervene in the case because they could not determine an appropriate remedy through the courts. Justice Scalia argued that political gerrymandering should be nonjusticiable, prohibiting them from going to the courts. On the other hand, Justice Kennedy argued that the Court should rule narrowly — basically that there wasn’t a solution for this particular case, but that they should continue to try and find a solution.

Why is it relevant today?

Last week, the Supreme Court heard Gill v. Whitford, a Wisconsin gerrymandering case. In November 2016, a three-judge federal panel determined that the state house plan adopted by Republican-controlled Wisconsin legislature in 2011 was partisan gerrymandering — and unconstitutional. The panel argued that the adopted plan violated the Equal Protection Clause and the First Amendment. They argued that the 2011 redrawn map “displayed both bad intent and bad effect, citing evidence that the map drawers used special partisan measurements to ensure that the map maximized Republican advantages in assembly seats.”

It was the first time in over thirty years that a federal court determined that a redistricting plan was unconstitutional and created by partisan bias.

The plaintiffs in the case asked that judges, rather than lawmakers and the governor, be responsible for redrawing the district maps — and the panel said no. Instead, they gave a deadline of November 1, 2017 to have a new plan drawn up and suggested that the map drawers adhere to their opinion as a guideline.

On February 24, 2017, Wisconsin filed an appeal to the Supreme Court, asking them to review the panel’s decision. In late May, they asked that the Court issue a stay on the panel’s request for a new plan. On June 19th, the Supreme Court announced they would hear the case in the fall and issued a stay, halting the implementation of a new plan by November 1st.

The Supreme Court heard the case, Gill v. Whitford, on October 3, 2017. In this case, they considered the following questions:

1. Did the district court err in holding that it had the authority to hear a statewide challenge to Wisconsin’s redistricting plan, rather than requiring a district-by-district analysis?
2. Did the district court err in holding that the redistricting plan was an unconstitutional gerrymander?
3. Did the district court use an incorrect test for a gerrymander?
4. Are defendants entitled to present evidence that they would have prevailed under the gerrymander test actually used by the district court?
5. Are partisan gerrymandering claims justiciable?

Basically, they first considered whether the district court (panel) was mistaken in their decision to hear the challenge to Wisconsin’s 2011 redistricting plan — did their decision violate the precedent case, Vieth v. Jubelirer. Second, they considered whether the district court’s finding was correct, that the redistricting plan was an unconstitutional gerrymander. Third, they considered whether the test used by the district court to determine that it was a partisan gerrymander was correct for this case. Fourth, should the State be able to try to prove that the election results would have been the same if they had their way, using the partisan gerrymander test? Lastly, are the claims of partisan gerrymandering legitimate? Should they be heard by the Court?

What happened during the oral argument?

Oral arguments provide the Supreme Court with the opportunity to ask any remaining questions they have about the case materials that have been submitted. We, the public, will not know of the Court’s decision for a few months, but there’s always speculation. In many cases, Justices are already pretty certain of their opinion when the argument is heard… which means there are patterns to how the Justices behave. Who asks questions? Who stays silent? To whom do they ask their questions?

There has been a lot of focus on Justice Kennedy’s behavior during the oral argument — and hope that it indicates he will hold that partisan gerrymandering is unconstitutional. Justice Kennedy is often seen as the deciding vote, as he is the moderate on the Court. (He was also the deciding vote in Vieth v. Jubelirer.) During the oral argument, Justice Kennedy only spoke while the State was making their argument — he asked five questions and made five statements. He did not ask — or speak during — the Wisconsin Democrats’ argument. Behavioral patterns of the Court indicate that if one side receives a lot of questions, they are more likely to lose the case. The questions are not meant to get information from the lawyers, but to signal their leanings and positions on the law. They are asking questions and speaking in order to persuade their fellow Justices to take their side. As FiveThirtyEight points out, there have been numerous studies about how the Justices ask questions — and Justice Kennedy’s questions and behavior fit the bill. He was (likely) indicating that he has come down on the side of partisan gerrymandering being unconstitutional.

Justice Kennedy has been stealing the limelight as the deciding vote, but Justice Sotomayor delivered a simple, yet blowing question during the State of Wisconsin’s argument that should be getting more attention. She asked a very simple question: “Could you tell me what the value is to democracy from political gerrymandering? How does that help our system of government?” The Justices, at this point, had spent a fair amount of time debating the abstract intricacies of the law and the math that goes into figuring out the “Efficiency Gap,” a measure used to determine whether partisan gerrymandering is present.

The attorney representing the State of Wisconsin did not have a good answer to Justice Sotomayor’s question. Murphy, the State’s attorney, cited Justice Breyer’s opinion in Vieth v. Jubelirer, but it contradicted the State’s position entirely.

So again, no good answer.

What is the Efficiency Gap Formula?

In their argument, the Wisconsin Democrats cited the “Efficiency Gap” as a new standard to determine whether a district has been politically gerrymandered. The formula was developed by two political scientists and a variety of mathematicians weighed in, verifying the formula’s accuracy. The Court has to consider whether this equation was a reasonable standard for measuring partisan gerrymandering.

The formula is incredibly simple. It measures wasted votes, or the number of votes received minus fifty percent. So for example, if Candidate A won with 60% of the vote, the wastage would be 10%. The wastage for the losing side would be the all of the votes lost. The formula is simple: subtract the wasted votes for the loser from the wasted votes for the winner, and divide that number by the total number of people who voted. If the result is a big number, that means there was a lot of vote wastage. If it is a little number, that means there was low vote wastage. This result is the Efficiency Gap. According to the political scientists involved in the research, a gap of 7% or higher would indicate that partisan gerrymandering has occurred.

It is important to note that this formula does not take into consideration votes “wasted’ due to other reasons, but overall, the results seem consistent with demonstrated instances of partisan gerrymandering. Some states, like Illinois and New York, have Efficiency Gaps that are misled by the geography of the state itself. Why is geography important? Well, the Supreme Court has to consider whether geographic is relevant in all instances of gerrymandering. It’s usually possible to draw fair maps in every state… but if the Court doesn’t agree that a fair, alternative plan exists, it will be more complicated to convince them that geography isn’t responsible for the gerrymandering.

Interested in learning more? The New York Times has put together an interactive article that explains the math behind the Efficiency Gap, complete with examples. You can read that article here. You can also read the full, published paper on the Efficiency Gap called “A Formula Goes to Court” here.

Okay… so why should I care about this?

Well, gerrymandering makes electoral districts a shit show and also allows the party in control to manipulate the districts to benefit them and the incumbents in their party. It allows special interests to buy their way into electoral districts. It’s as close as you can get to having your vote “not count” (PSA: you should always vote, always always). Gerrymandering diminishes the spirit of the Constitution and free and fair elections.

You should care because your vote matters and is important. You want your elected officials and your party (and the other parties) to know that your vote matters. It is your right to vote for who is representing you, but when that is rigged, you should get mad. You should also care because there is currently no law against gerrymandering, so electoral districts can continuously be altered to benefit one party over another… which is undemocratic. And we are here to support democracy and the Constitution.

Last Tuesday, Senators John McCain and Sheldon Whitehosue issued a joint statement, arguing that gerrymandering is unconstitutional. This is a Big Deal™ because Republican Maverick John McCain is pulling out the mic drop against his own party. Democrats have typically always been against gerrymandering (but that doesn’t mean they are also not guilty of it)… but the more members of the Republican Party speak out against the practice, the stronger the case is against it.

If you want to ensure your vote matters, you should care about this issue deeply. Partisan gerrymandering skews elections, allowing a party to unfairly control an aspect of a state’s elected officials. Ask yourself whether you think this is a democratic process. Ask yourself if you want your vote to count. Do you have an answer? Great, now go help change the world, one election district at a time.