By Stefanie Klaves
What do snakes, salamanders, and high-heel pumps have in common? Oddly enough, there have been electoral districts drawn to resemble all three. In response to these strange, contorted lines, political figures, citizens, and nonpartisan organizations alike have called for reforms to correct gerrymandering. Back in 1988, Ronald Reagan referred to gerrymandering as a “national scandal.” Voters brought a case concerning partisan gerrymandering, Rucho et. al v. Common Cause, to the Supreme Court in the spring of 2019. This past August, Barack Obama announced “Redistricting U” on Twitter, a new initiative for fair electoral maps called All On The Line.
What is Gerrymandering?
Gerrymandering is the manipulation of electoral boundaries “so as to favor one party or class.” As congressional districts are redrawn every 10 years after the census, there are concerns that incumbent legislatures both “pack” and “crack” districts to favor their party. Packing refers to concentrating members of a party into one district; the party wins overwhelmingly in one district but has diluted voting power in others. The opposite tactic, cracking, divides party voters into so many districts that their preferred representative is unable to win a majority in any of the districts.
Gerrymandering is a bipartisan problem. The plaintiffs in Rucho et. al v. Common Cause brought complaints against both Republicans and Democrats. In Maryland, Democrat Martin O’Malley appointed a redistricting committee to redraw the state’s congressional districts and testified that his aim was to “use the redistricting process to change the overall composition of Maryland’s congressional delegation to seven Democrats and one Republican by flipping one district.” The plaintiffs from North Carolina contested a redistricting effort led by the Republican legislature because the Republicans instructed mapmakers to “draw a map that would produce a congressional delegation of ten Republicans and three Democrats.” Whether wearing red or blue, state legislatures from both sides of the political aisle are accused of manipulating lines for political purposes.
What is the Harm?
Supporters of redistricting reform point to the incumbency advantage that gerrymandering allows for. Those in power get to draw the boundaries for their next electoral battles, which can be an opportunity to exclude political opponents before votes are cast. Incumbents should not be allowed to determine the election before ballots are cast if the American government is truly of, by, and for the people.
What is the Solution?
The plaintiffs of Rucho et. al v. Common Cause believed that the Supreme Court was the institution to correct partisan gerrymandering, but the Court decided otherwise. The Court ruled that the case was a political question that was beyond the reach of federal courts. Chief Justice Roberts explained that partisan gerrymandering was nothing new—George Washington accused Patrick Henry of gerrymandering in the first congressional election. Gerrymandering is the namesake of Elbridge Gerry, governor of Massachusetts who approved a legislative district with the shape of a salamander’s back in 1812.
The framers of the Constitution were aware that state legislatures might contort elections to favor congressional representatives of their choice, but they did not give oversight power to the Supreme Court. Instead, in Article I, Section 4, the framers checked the state legislatures with the Federal Congress. The Constitution gives Congress the power to alter the regulations of elections made by state legislatures. The Court thus ruled that interference by the federal judiciary would be an “unprecedented expansion of judicial power” and would constitute an intervention that was “unlimited in scope and duration.”
With its holding, the Supreme Court left the solution to partisan gerrymandering in the hands of state legislatures and Congress. It is state legislatures and Congress that are constitutionally empowered to reform redistricting. One possible reform is the creation of independent redistricting commissions. Instead of being drawn by partisan incumbents, independent commissioners would draft the maps. States including Alaska, Arizona, California, Colorado, Idaho, Michigan, Montana, and Washington already use independent redistricting commissions.
Independent redistricting commissions may not be the panacea for the incumbency advantage though. A study by researchers from UCLA and Yale found that “independent commissions do not draw House maps that encourage any greater electoral competition than partisan legislatures.” If districts are not competitive, both parties and incumbents can be insulated from their political opponents.
The Bottom Line
Ever since the country’s first elections were held, Americans have voiced concern over strange, contorted district lines. After all, Americans committed to the idea of self-government see no place for predetermined elections by ruling incumbents. Although citizens have appealed to the Supreme Court for partisan redistricting reform, the justices have ruled that the Constitution only allows for legislative action. Some legislatures have created independent commissions, but the commissions’ maps fail to alleviate all the concerns. The question therefore remains whether a solution to gerrymandering exists or if snakes, salamanders, and high-heel pumps are here to stay.