By: John C. Lesher
What is gerrymandering?
Gerrymandering represents the drawing of electoral districts by a state’s politicians in a manner that maximizes the politicians’ chances of re-election and/or maximizes the power of a Party in a state or federal legislature.
The federal Constitution requires that a census of the American population be taken every 10 years and that the 435 seats in our federal House of Representatives be reapportioned immediately subsequent to each census. Seats in Congress are distributed by the Census Bureau to the states according to the relative population of each state. Once each state receives its quota of congressional seats, each state goes through a process of forming the districts from which candidates for office are elected. Thus, every 10 years state and federal district boundaries are “remapped,” in large measure to comply with the legal requirement that each district within a state be equal in population to every other district. As populations ebb and flow among the states, or within a state, the need to balance populations requires a redrawing of district boundaries.
Why is Gerrymandering Criticized?
The sarcastic phrase among political commentators is that the redistricting process results in politicians picking their voters, rather than the other way around. Viewed in isolation, the redistricting process every 10 years makes sense. The problem arises when the politicians who redraw the districts do so for purely political ends, with little or no thought given to logic or to the needs or wants of the electorate. Far too often the redistricting process has been used solely for the allied purposes of incumbency protection and Party dominance.
Redistricting by politicians for politicians is a clear instance of a conflict of interest, but it is a constitutionally-enshrined power taken most seriously by elected officials. Court decisions can mitigate possible redistricting abuse, but the basic power to redistrict is controlled by elected state office-holders and that power is often exercised by them with as much effect on electoral results as is possible. Getting elected or re-elected, and not public service, is the priority. Redistricting consultants, with their census tabulations and voting rolls and computer algorithms, advise politicians where voters live and draw district lines that concentrate or dilute voting power according to perceived political advantage.
It is well established in American law that gerrymandering for racially discriminatory purposes will not be tolerated. However, gerrymandering for political ends is a common practice with little legal oversight. In the past two decades the electorate has awakened to this misuse of power and steps are slowly but surely being taken to curtail abuses. Historically, federal courts, notably the Supreme Court, have been reluctant to involve themselves in what is regarded as a purely political matter, thereby avoiding the accusation of being an arbiter of elections by taking the power to elect away from voters. However, in the past four or five years, activist federal district courts in several locations have begun to take a critical look at gerrymandering.
At the state level, courts in several jurisdictions, Pennsylvania being a salient example, have issued rulings abrogating a state’s redistricting. Advocates for the reform of America’s redistricting process are hopeful that the Supreme Court will declare extreme partisanship in electoral district formation to be a constitutional violation, and issue standards and tests that will stop, or greatly restrict, the ability of legislators to select their voters. Through the end of 2019, that has not happened.
So How Do We Get Out Of This Mess?
The way out is simple to state but difficult to accomplish. There are two choices. The first is to take the redistricting authority out of the hands of elected politicians and place it under the control of a commission whose members are independent of a state legislature’s override or of a gubernatorial veto. In a system featuring true independence from political interference, where incumbency and Party dominance are not considerations, gerrymandering and its accompanying litigation would be minimized and the electorate’s needs would be paramount.
The second method is to keep the redistricting authority in the hands of a state’s legislature, but restrict the legislature’s power to “wheel and deal” by passing constitutional amendments that detail with specificity what the legislature can and cannot consider in a redistricting exercise. This is the method chosen by Florida voters shortly before the 2010 census.
Many states have some form of a commission to either accomplish redistricting or to assist a legislature in its redistricting duties. However, only five states—Arizona, California, Hawaii, Idaho and New Jersey—have commissions that are fully independent of their legislatures and governors for both state and federal redistricting. In the 2018 election cycle, voters in four additional states (Colorado, Michigan, Missouri and Utah) passed legislation to either form commissions or to restrict gerrymandering by their legislators. As is always the case in instances where the voters have taken power from politicians, legal challenges to these new enactments have been filed and it will take many more months before the finality of the enactments in Michigan, Missouri and Utah is determined. Washington has a commission that is quasi-independent: no gubernatorial veto, although the legislature can override the commission map, but only with a 2/3 majority of both houses. In early 2020 Virginia’s State House of Delegates voted to place on the November, 2020 ballot a referendum measure to establish a redistricting commission for that state.
Florida has reformed its redistricting process, and has chosen to do so by means of constitutional amendments that maintain the Florida legislature’s right to redistrict, but which forbid consideration of many things. The operative part of Florida’s constitutional amendments is as follows:
“…(districting maps) may not be drawn to favor or disfavor an incumbent or political party. Districts shall not be drawn to deny racial or language minorities the equal opportunity to participate in the political process and elect representatives of their choice. Districts must be contiguous. Unless otherwise required, districts must be compact, as equal in population as feasible, and where feasible, must make use of existing city, county and geographical boundaries.”
Language similar to that placed into Florida’s constitution is a crucial element in controlling gerrymandering abuse. Adopting an independent commission structure for redistricting will lose much of its effectiveness if a state fails to incorporate into the adopting legislation unambiguous rules as to what is permitted in redistricting matters.
It is easy to talk about these potential fixes to the problem of gerrymandering, but actually adopting a potential solution is far harder. The likelihood of politicians voluntarily relinquishing a constitutionally-granted redistricting power is low. To effect change, citizens have forced the issue and resorted to the device of direct democracy. Ballot initiatives by citizens have been responsible for almost all of the recent instances of significant changes in redistricting authority. Unfortunately, only 26 states and the District of Columbia have constitutional provisions granting direct democracy to citizens.
These citizen-driven initiatives were fiercely resisted by political elites and litigation lasting for a decade or more was experienced. The right of citizens to remove constitutionally-based redistricting power from elected officials was adjudicated in 2015 by the Supreme Court in the case of Arizona State Legislature v. Arizona Independent Redistricting Commission. The Court ruled in a 5-4 split decision that voters have such a right. Now-deceased Justice Antonin Scalia in a scathing dissent said that the Court’s decision defied any logical reading of the constitution.
It is now 2020. The Supreme Court has a more conservative cast that might agree with Justice Scalia. It is possible that new litigation will be filed attempting to overturn the entire concept of citizen initiatives usurping power from a legislature. If such a suit is successful, the commissions adopted by several states would be disbanded and have no further authority. In that event, the path taken by Florida---leaving to the legislature the authority to redistrict, but doing so under restrictive rules of procedure adopted by voters---probably will be the required fallback position if gerrymandering is to be curtailed.
If America is to limit self-interested manipulation of redistricting by its elected politicians, the power to control the process of district formation must either be taken from political elites or have that power greatly circumscribed by the incorporation into state constitutions of plainly stated boundary lines around redistricting exercises. The adoption of independent redistricting commissions or rule-altering amendments to state constitutions would be powerful correctives to an inherently onerous situation.