Gerrymandering has once again come under national scrutiny. In Gill v. Whitford, argued before the Supreme Court last October, the redistricting undertaken by the Republican-controlled Wisconsin legislature after the 2010 census is being challenged as overly partisan gerrymandering. The Court must decide whether gerrymandering — as a partisan political practice — is challengeable in the courts at all, and, if so, whether the district court tested for partisan gerrymandering properly. The ruling will provide guidance as to whether and how gerrymandering might be regulated going forward.
This pivotal case is not unique. A similar case, in which Maryland Republicans are challenging Democratic redistricting, will also be heard by the Supreme Court this year. In January, a federal court in North Carolina struck down Republicans’ 2016 gerrymandering. And, just last month, Justice Samuel Alito rejected a Pennsylvania GOP appeal to halt a state court order to redraw Pennsylvania districts deemed overly partisan.
These cases have arisen largely because Democrats and Republicans are now challenging each other’s results more often. One presupposition is never challenged, however: that redistricting is the unavoidable, if not intrinsic, “responsibility” of the political parties. Although redistricting is nearly always conducted by state legislators, these legislators, of course, generally act as agents for their party’s national interests. This assumption, that party interests will control redistricting, underlies every major Supreme Court decision on the matter to date. Thus, the premise that it is natural for political parties to redraw district lines has predominated any and all debates about gerrymandering.
But should parties possess this responsibility? Why should a party be able to engineer districts to assure predictable electoral results for years to come simply because it is in the majority at the time of redistricting? Wouldn’t American society benefit from a more neutral method?
At the national level, gerrymandering has proven crucial not only in shaping party control of the House of Representatives, but also in what kinds of politicians win in many districts. It creates “safe” districts where ideological purity is rewarded and legislative compromise is seen as capitulation. The result is the stark divisions we see in federal government today: Partisan divides are exacerbated and fundamental national issues remain unresolved for prolonged periods.
From Redistricting to Gerrymandering
Gerrymandering in the United States has a long and sordid history. At its most base, it is a perversion of the act of redistricting. Redistricting itself is made necessary by America’s House structure and shifting populations — its practice goes back to the early 1800s. But how did “redistricting” become “gerrymandering”? To answer that, it is important to recognize the original distinction between the two terms.
Congressional redistricting is the decennial practice of redrawing district lines in each state after the census has been completed and seats reapportioned among the states. Reapportionment is Congress’s express responsibility. But ever since the Reapportionment Act of 1929 — which set the House at 435 seats — the Census Bureau has been asked to propose a redistribution plan, which Congress must then approve. Since the Apportionment Act of 1842, the subsequent responsibility to redraw district lines based on the new distribution has belonged to the states, usually state legislatures.
The division of state and national legislatures, as separate institutions, should theoretically prevent collusion between the two, but such divides are bridged by shared party affiliation. Although the Framers thought the constitutional system required no parties, two parties have permeated government for virtually all of U.S. history. Ours is a system controlled by parties, but designed without them in mind. One consequence of this is the transmogrification of redistricting into gerrymandering.
After each census, the Democratic and Republican parties in each state legislature perform a sort of ritualistic dance, seeking to benefit their party as best they can for future elections. If the parties are divided relatively evenly in a state’s legislature, redistricting will involve a negotiation to establish or maintain districts that preserve electoral equilibrium. In larger states, where a great many districts are involved, almost incomprehensible maps are often devised. Each party effectively chooses its constituency, while marginalizing voters in the minority in any district they “control.”
If one party possesses a solid majority in a state’s legislature, it engineers the best possible makeup of districts for that party in the House. This is achieved in one of two ways. The majority party can spread the minority’s voting blocs over various districts so it is at a small disadvantage everywhere; or it can concentrate the minority’s voters in a few districts where they dominate, but at the cost of a statewide disadvantage. This also often results in seemingly nonsensical district designs.
The Deleterious Effects of Gerrymandering
Gerrymandered districts are designed to be won election after election by a single party. They are engineered to seem politically homogeneous, even when the region itself is not homogeneous. Powerful data collection techniques utilized by private consultants have made gerrymandering even more effective. And the more efficiently it is done, the more it intensifies partisanship.
When districts are safe, there is little incentive to court minority constituencies. Voters affiliated with a district’s dominant party instead expect ideologically pure candidates who will be willing to promise extreme, sometimes specific, policies. (Indeed, members of those constituencies often cajole candidates into promising more than they’d otherwise like to promise during campaigns.) Voters themselves, used to engineered homogeneity, begin to buy in to the idea that such promises can be fulfilled nationally. After all, if such ideas dominate locally, why shouldn’t they dominate nationally?
Thus, parties and voters have increasingly rigid expectations and increasingly see political compromise as unnecessary, or even impossible. Hardline representatives hamstring Congress’s efforts to produce bipartisan legislation. Lawmakers who promise total ideological victories are of course rarely able to deliver — even when their party is in the majority. But they are able to blame their losses, with some justification, on the obstinacy of the minority party, which is also filled with hardliners who refuse to compromise.
Finally, one of the central purposes of the single-member district is diminished. Districting is supposed to provide local interests with an advocate in the national legislature. But when parties engineer districts so that representatives don’t have to compete for their seats, minority constituencies become after-thoughts, subordinated to ideological purity and national interests.
A Proposal for Non-Partisan Redistricting
Gerrymandering has insinuated itself so thoroughly into the American political psyche that debate focuses on how it is carried out, not whether it is a valid practice. It is taken as a given that political parties will decide how districts look.
But if reapportionment is designed to be apolitical, based simply on population distributions, then why should redistricting be undertaken with a political bent? Surely the technology that is used to manipulate district maps so precisely can be utilized to redraw districts that advantage no party.
Imagine for a moment if redistricting were reoriented away from the specific interests of the parties. Districts could be redrawn dispassionately, adhering to the “one person, one vote” doctrine and population standards, as laid out in both Baker v. Carr and Wesberry v. Sanders. They could be conducted utilizing a neutral computer algorithm employed by the Census Bureau. The construction of that algorithm would be based simply on geography, compactness and contiguity. (These standards were laid out by Congress incrementally from 1872 to 1901, but have not been considered “requirements” since the 1932 Wood v. Broom ruling, in which the Supreme Court declared the standards had effectively been repealed by Congress in the 1929 Reapportionment Act).
District structures in highly populated states would become less confusing and more geographically sensible. In most cases, demographic, social, and political composition would become far more balanced. As a result, parties would have to adjust their electoral calculus. They would have to be competitive with multiple constituencies, rather than kowtowing to the desires of ideologically aligned groups.
Neutral redistricting would render real benefits for the American people. The House would be more likely to function as intended, with representatives advocating for local interests and compromising when there is no consensus on issues of great national importance. Legislators’ incentives would be quite different: constituencies would be more mixed and partisan appeals less useful in campaigns; extreme ideas would lose much of their cachet because they wouldn’t be likely to win many elections; pragmatism would regain potency because constituencies would not be promised the moon; and legislative compromise would again become necessary for members to win reelection.
Such a system wouldn’t be perfect. Some levels of inequity would remain, and in some cases new inequities would be created out of the more random nature of neutral redistricting. But such inequities, when they occur, would be unintentional — and that is the crucial point. The electoral certitude the parties enjoy today would be diminished. There would be fewer “safe districts,” and fewer minority voting blocs systematically disadvantaged. Court challenges to the inequities that might result from a neutral process would be based solely upon the merits of the demographic or social inequity itself and not upon the partisan opinion of the party as to what is “fair to them.”
From Gerrymandering Back to Redistricting
Movement toward such a neutral system would be difficult. The parties may challenge gerrymandered results, but they are loath to give up their own advantages. A popular movement against gerrymandering is needed. That is a big ask, both because gerrymandering has become “normal” and because it occurs largely out of the view of the electorate. Not just party hierarchies but also the constituencies accustomed to district dominance would likely oppose such a challenge to the status quo.
It is not in the Supreme Court’s purview to eliminate gerrymandering. The court’s role is to protect fundamental rights and the Constitution. Reforming redistricting is Congress’s responsibility, in conjunction with the states, which retain much latitude as to how districts are drawn. Members of state and national legislatures will only spearhead action if enough constituents want it.
Despite numerous potential impediments, redistricting reform has a clear truth on its side: While America’s parties should always be in the business of winning elections, they should never be in the business of engineering their own constituencies. Neutral redistricting would force the parties to work for the electorate, rather than for themselves.
Dennis R. Bullock was a candidate for the California State Assembly 43rd District seat in 2016. He teaches AP Macroeconomics and AP US Government & Politics at Providence High School in Burbank, CA.