Courts take another look at the cold science of gerrymandering
By Tom Baxter
Gerrymandering was once a kind of artisanal branch of politics. The late U.S. Rep. Phil Burton was said to have single-handedly redrawn the 1970 congressional map of California armed with nothing more than a stack of telephone books and his encyclopedic knowledge of the political landscape of his state.
In the decades since, digitized census and voting data and programs designed to suck every cul de sac’s worth of advantage from the map have turned the old craft of gerrymandering into a precise science.
I could have used the neutral word “redistricting” instead of “gerrymandering,” which has an odor of corruption about it. There’s a thin line between the two terms, and that’s the basis for a spate of suits the U.S. Supreme Court will be hearing this year. The high court has already heard arguments in a Wisconsin case which could be the most important in decades, and is expected to issue a ruling on that case by midyear.
The principle that political lines can’t be drawn to discriminate racially has become pretty solidly established, although exactly what that means is still being litigated in cases like those which have been brought in Texas, North Carolina and Georgia. The Wisconsin case, Gill v. Whitford, is important because it tests the limits of what legislatures can do for purely partisan reason.
Since a new Republican majority redrew the map of the Wisconsin State Assembly, Democrats haven’t won more than 39 of 99 seats, even when they’ve won a majority of Assembly votes statewide. That shows how good those map-drawing programs have become, but whether it’s evidence of anything unconstitutional remains for the court to decide.
As it happens, a Maryland case is also making its way to the court, in which the Democratic-majority legislature is accused of gerrymandering which discriminates against Republican voters, giving the sharply divided court a balanced pair of cases.
The Wisconsin case was first in order, but a decision last week by the Pennsylvania Supreme Court, may shove that state ahead in the line. It found Republicans had gone too far along partisan lines and ordered the Congressional map to be redrawn before this year’s election. Republican legislators have appealed the case to the U.S. Supreme Court, and the secretaries of state of six states, including Alabama and South Carolina, have so far joined their case, claiming it’s too late in the decade to change the map. (If Georgia doesn’t join in, it may be because the NAACP’s case against the state involves changes the legislature made midway through the decade.)
Democrats have celebrated the decisions striking down Republican-drawn maps, and decisions like that in Pennsylvania could have an impact on the battle for control of Congress. But it should be remembered that Democrats would still be the majority party if artful cartography were all it took to hold that position.
It might be said that the Republican Party has grown horizontally while the Democratic Party has grown vertically. In the high-density population centers, Democrats are winning across a wider economic range than they ever have, while Republicans have cornered an ever-increasing percentage of the acreage outside those areas. This gives them a distinct advantage when it comes to drawing political lines.
The website FiveThirtyEight has produced an Atlas of Redistricting which serves as a very handy check on what changing the rules of redistricting might mean. It draws imaginary Congressional maps based on several goals. Under most scenarios short of an outright Democratic gerrymander, Republicans hold at least a slight advantage. The big difference is the number of districts produced in each scenario in which neither party has a decisive advantage.
Georgia’s Congressional delegation currently consists of 10 Republicans and four Democrats. FiveThirtyEight estimates that Republicans could wring one more seat out of the map in a scenario which maximizes their advantage, while Democrats could gerrymander their way back into an eight-six majority, with a map featuring a district that looks vaguely like the old Cynthia McKinney 4th. I somewhat doubt a Democratic gerrymander could produce that big a change, but the two imaginary maps show the range of political possibilities that can come from lines on the map.
Like the map we have, neither of these gerrymandered maps have any competitive districts. The most intriguing map is the one which creates three Democratic districts, four Republican districts and seven highly competitive districts. That might be the best for promoting civic engagement and bridging the partisan divide, but it would also be the hardest for politicians to get comfortable in. Don’t expect to see it soon.
I have long thought the major problem in our politics is the lack of districts that have a competitive, rather than a slam dunk for one party or the other. Until this scientific gerrymandering is stopped we will always have the fringe elements of each party controlling the congress. No one has to run to the majority middle when they can load a district with the party vbase vote. I hope the Supremes do a good job of dismantling this broken system.Report
Tom has not touched on two issues which are probably more important to the Supreme Court’s decision than the power of the scientific gerrymander.
First, the previous court was divided 4-4 over the question of whether redistricting is inherently political and not subject to judicial review. Replacing Scalia with Gorsuch did not change that; at the Gill oral argument he asked where the Court’s power to reject redistricting came from (and was promptly slapped down by Ruth Bader Ginsberg).
It should be remembered that when the Supreme Court decided Baker v. Carr, the Tennessee legislature had not been redistricted in 50 years, despite a statutory mandate, because rural legislators refused to give up power to city folk. And in earlier redistricting cases, conservatives like Sandra Day O’Connor and Byron White were quite willing to admit the existence of “neutral” criteria for redistricting, such as compactness and community of interest.
Second, Chief Justice John Roberts in particular is concerned about the exposure these cases give to the Court’s inherent political nature. Statewide redistricting cases are heard by special 3-judge courts, and appeals go directly to the Supreme Court, which must decide them (most cases the Court hears at its discretion). The Court has shown its dislike of these cases by staying redistricting orders of lower courts without exception. This is quite different from days of yore, when the Court heard twice as many cases as it does today and took seriously the statute requiring these cases to be “advanced upon the docket.”
At the Gill argument, the challengers tried to convince the Court that it was the only thing that stood between the politicians and maximal gerrymandering. Whether that is a stronger argument for Anthony Kennedy than protecting its reputation remains to be seen.Report