Gerrymandering, the redrawing of electoral districts to benefit one particular political party, has been used by both Republicans and Democrats for more than 200 years. Can this abuse of power by state legislatures be ended? Following is a brief summary of its history, some views published in the media, and this blog’s opinion.

Background

The redrawing of electoral districts by the party in power to give its candidates an advantage has been a feature of American politics since the very beginning of the republic. It was already used in 1789, when James Madison ran for election to the House of Representatives. The colorful name was born in 1812 when then Massachusetts Governor Elbridge Gerry approved a plan to remap the Boston district’s boundaries giving an electoral advantage to his own Democratic-Republican Party over the Federalists. The Federalist press pointed out that the shape of the redrawn district resembled a salamander.  Governor Gerry (whose name was actually pronounced with a hard “g” like in “grow”) went on to become Madison’s Vice President.

The Constitution assigns the right of redistricting to state legislatures, and both Republicans and Democrats have used this tactic when they control a state government.[1]

The Supreme Court has struggled with gerrymandering since 1946, when Justice Felix Frankfurter argued that the courts should stay out of “this political thicket.”[2] But in 1962 (Baker v. Carr) the Court agreed to hear challenges to state apportionment schemes, ruling that such schemes were “justiciable.”[3] This was during the Civil Rights movement when the Court established the “one person, one vote” doctrine requiring that the districts of states’ legislative chambers were roughly equal in population, and thereby provide equal representation to Black Americans.

In 2019 (Rucho v. Common Cause) the Supreme Court ruled that while gerrymandering schemes may be “incompatible with democratic principles,” they present “political questions” beyond the reach of federal courts. Getting the courts involved would be “an unprecedented expansion of federal judicial power,” wrote Chief Justice John Roberts. He added that “the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly.”[4]

To end the practice Justice Roberts suggested two remedies: amending state constitutions, and/or enacting a federal law. The Constitution gives Congress the power to oversee how state legislatures draw up election districts for representation in the House.

In 2020 the Democratic controlled House of Representative acted on his advice and passed the For the People Act, which banned gerrymandering (and made a slew of other changes). The Act required that all districts be set up by independent, nonpartisan commissions rather than state legislatures.  Then Senate Majority Leader Mitch McConnell (R-Ky.) denounced the House Act as a “power grab,” and his party blocked the package the following year through a Senate filibuster.

As for individual state constitutions, 30 already include some requirement that elections be “free.” Many states have crafted alternative election systems or established nonpartisan commissions to redraw districts. But they are all marred in partisan politics.

Current Debate

“Does Congress Even Have the Power to End Gerrymandering?” (By Noah Feldman, Columnist; April 1, 2021)[5]

Noah Feldman wrote: “The framework for assessing what Congress can do about state electoral districting is Article I, section 4 of the Constitution, which says: ‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.’

“The text does two things. First, it makes the states the default holders of the power to prescribe the choosing of members of Congress. Second, it gives Congress broad power to override what rules the states make with one exception, the “places” of choosing Senators.

“It’s one thing for Congress to ‘make or alter’ regulations for time, place and manner of elections. It’s arguably another for Congress to mandate that non-partisan commissions define the contours of the districts. Is that the ‘manner’ of elections? Or is it something more fundamental — a power that might inherently belong to the state legislatures? The court might decide there’s a distinction between requiring single-member districts and requiring a particular method of drawing them.”

*

“The Only Way Democrats Can End Gerrymandering? By Gerrymandering Themselves.” (By Paul Waldman, Columnist; September 27, 2021)[6]

Paul Waldman wrote: “With Democrats controlling the House by just a few seats, it may be possible for Republicans to take back control in 2022 by means of gerrymandering alone, even if they don’t win the typical opposition party victory that characterizes most midterm elections. That’s because they control the process in many more states than Democrats do, including Texas, North Carolina, and Florida, which alone could be decisive.

“But Democrats have a few opportunities. In New York the parties are battling over competing maps after the redistricting commission couldn’t agree on one; Democrats could wind up with an extra seat or two there. In Illinois, the legislature could redraw a couple of Republican seats to make them easier for Democrats to win. Oregon is gaining a seat, which could allow Democrats to go from a 4-to-1 to a 5-to-1 advantage.

“So how can they simultaneously say gerrymandering is wrong but still pursue it where they can? It’s not hard. In fact, you can argue that gerrymandering now is the only way they can have any chance to prevent gerrymandering in the future.

“Democrats can pursue this strategy without having to worry about being called hypocrites, even if it’s true.”

*

“Obama’s Gerrymander Fable.” (By Karl Rove, Columnist; Oct. 13, 2021)[7]

Karl Rove wrote: “Messrs. Obama and [former Attorney General] Holder’s claim that they’re concerned only with crafting fair maps is bunk. Their definition of a ‘fair’ map is one that gives Democrats an unfair advantage.

“Take Maryland. Democrats wiped out a GOP seat in redistricting in 2011, giving the state seven Democratic representatives and one Republican. As this year’s redistricting heats up, Democratic leaders look to gut the state’s single remaining Republican district by dividing it among adjoining Democratic districts. Messrs. Obama and Holder haven’t said a thing.

“Then there’s Gov. J.B. Pritzker (D- Ill.), who entered office pledging to end gerrymandering by giving the job of redistricting to an independent commission. That never happened. Instead, Democratic legislators are preparing a new congressional map that likely will wipe out two Republican districts while shoring up Democrats who are at risk in 2022. And guess what? Nothing but crickets from Mr. Obama and his old attorney general.

“There’s also New York. In 2014 voters approved a nonpartisan commission to draw congressional lines that only a legislative supermajority could reject. How’s the state faring as it crafts new maps while losing one of its 27 seats in reapportionment? First, the Democratic Legislature tried starving the commission, refusing to supply funds to operate. Then Democratic commissioners refused to meet with Republicans to settle on a bipartisan map, while their party’s legislative leaders worked to weaken the supermajority vote requirement.

“In redistricting, Democrats want to elect more of their partisans to advance their agenda. So do Republicans.”

This Blog’s Opinion

Gerrymandering needs to be banned once and for all.  The practice is undemocratic, as it allows people’s representatives to pick their voters instead of the other way around.  It is a brazen abuse of power by state governments.

Partisan redistricting is a perversion of the Framers’ intent similar in nature to the unfair voting restrictions the states imposed prior to the Voting Rights Act of 1965. Ending this practice needs to be pursued under this federal law, since most redistricting is done on a racial basis. “The 14th and 15th Amendments give Congress the power to eliminate racial discrimination in voting and the democratic process, such as restricting or creating barriers to voting, partisan gerrymandering, and felony disenfranchisement,” wrote constitutional scholar Christopher Warren.[8]

Attempts to end gerrymandering under the Voting Rights Act have already begun. Just this month the U.S. Justice Department sued Texas, a state under Republican control, alleging that it violated the Voting Rights Act by creating redistricting plans that intentionally discriminate against Black and minority voters. Several other states—North Carolina, Maryland, Illinois, and New Mexico—do essentially the same thing. “Maryland is proof that gerrymandering isn’t just a Republican pastime,” wrote Christopher Ingraham in The Washington Post.[9] The Justice Department needs to take action against all discriminatory redrawing of electoral districts.

If prosecuting gerrymandering under the Voting Rights Act is judged unconstitutional, Congress can pass another law. As Chief Justice Roberts wrote, “The Framers gave Congress the power to do something about partisan gerrymandering.” [10]


[1] https://www.washingtonpost.com/news/wonk/wp/2014/05/15/americas-most-gerrymandered-congressional-districts/

[2] ‘A chapter closes on partisan gerrymanders, others open’; https://constitutioncenter.org/blog/a-chapter-closes-on-partisan-gerrymanders-others-open

[3] https://constitutioncenter.org/blog/on-this-day-supreme-court-reviews-redistricting

[4] https://constitutioncenter.org/blog/a-chapter-closes-on-partisan-gerrymanders-others-open

[5] https://www.bloomberg.com/opinion/articles/2021-04-01/does-congress-even-have-the-power-to-end-gerrymandering

[6] https://www.washingtonpost.com/opinions/2021/09/27/only-way-democrats-can-end-gerrymandering-by-gerrymandering-themselves/

[7] https://www.wsj.com/articles/obama-gerrymander-fable-holder-redistricting-republican-seats-nrrt-drc-aotl-karl-rove-11634158472?mod=hp_opin_pos_3#cxrecs_s

[8]“The Constitutionality of the Voting Rights Act of 1965.” Stanford Law Review, vol. 18, no. 1, Stanford Law Review, 1965, pp. 1–26, https://doi.org/10.2307/1227379.

[9] America’s most gerrymandered congressional districts; https://www.washingtonpost.com/news/wonk/wp/2014/05/15/americas-most-gerrymandered-congressional-districts/

[10] https://thehill.com/regulation/court-battles/566631-supreme-court-decision-could-set-off-gerrymandering-arms-race?rl=1