This is the third article in our series examining election integrity.
After the 2016 presidential election, Hillary Clinton blamed her loss largely on Russian hacking, and Donald Trump blamed the fact that Hillary won the popular vote on millions of illegal ballots. In my opinion, the chance that either of those claims is true ranges from zero to negligible. But the election really was rigged, in ways that we are examining in this series of blogs. This month’s blog focuses on the manipulation that occurred not during the presidential race, but before it — in the drawing of lines for hundreds of U.S. and state legislative seats. According to an Associated Press analysis, gerrymandering gave Republicans a huge advantage before a single vote was cast.
Extreme partisan gerrymandering is part of a pattern that legal scholar Mark Tushnet calls “constitutional hardball,” which has become prevalent since the 1990s. Constitutional hardball refers to practices that change government in fundamental ways that are technically legal but which violate the way that government traditionally operates. Some examples include the blockade of Supreme Court nominee Merrick Garland, abuse of congressional procedures to slow down legislation, and mid-cycle redistricting to advance gerrymandering.
What is gerrymandering?
Gerrymandering refers to the practice of dividing a political unit, such as a state, county, city, etc. into electoral districts in such a way as to give one political party a majority in as many districts as possible while concentrating the voting strength of the other party into as few districts as possible. The term originated in 1812 as a combination of the name of Massachusetts governor Elbridge Gerry and the word “salamander”, because one of the districts ended up with the shape of a salamander after his party redistricted it. Gerrymandering is undemocratic because it makes some votes count more than others. For an explanation of gerrymandering that is both astute and amusing, you can watch John Oliver here.
Redistricting occurs both for U.S. congressional districts and for state and local legislative districts. Congressional redistricting is necessary when the population changes because the U.S. Constitution requires that each district have about the same population. This standard is quite strict for congressional districts, and it’s a bit more flexible for state and local legislative districts, which should have populations less than 10% apart. Redistricting is done after each census, which takes place every 10 years. The last census was in 2010 and the last redistricting was in 2011. The first congressional elections based on the 2011 redistricting took place in 2012.
The total number of voting representatives in the U.S. House of Representatives is fixed by law at 435, so each congressional district currently contains about 711,000 people. There is also one non-voting delegate from the District of Columbia and one for each of the five inhabited U.S. territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands). The next census is scheduled for 2020, there will be another redistricting in 2021, and the first congressional election based on the 2021 redistricting will take place in 2022.
Currently, California has the biggest congressional delegation, with 53 representatives, and the seven states with the smallest populations have only one representative each: Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming. So long as they have only one congressional district, congressional gerrymandering isn’t possible in those seven states. Gerrymandering is also not possible in the U.S. Senate, because Senators are not elected by districts, but by the states at large.
How redistricting works
For congressional districts, the decennial census figures are used to determine the number of districts in each state, in a process called apportionment. For example, the population changes between the 2000 and 2010 censuses caused 8 states to gain members and 10 states to lose members in the House of Representatives. The regional patterns of change in congressional representation based on the 2000 and 2010 censuses reflect the Nation’s continuing shift in population from the Northeast and Midwest to the South and West. After Congress determines the number of districts, each state becomes responsible for determining the boundaries of the districts. States handle redistricting in different ways, and some ways are easier to gerrymander than others.
In the majority of states, the legislature handles redistricting for both U.S. Congressional districts and state legislative districts. In most of those states, redistricting works like any other legislation, with majorities required in both chambers, subject to the governor’s veto. However, Maine and Connecticut require supermajorities, which means that redistricting plans need two-thirds of each chamber to pass. Five states—Connecticut, Florida, Maryland, Mississippi, and North Carolina–pass redistricting laws by joint resolution, which is not subject to the governor’s veto.
Iowa has a unique method. Nonpartisan legislative staff develop maps for both state and congressional legislative districts, and they are not allowed to use any political or election data, such as previous election results, voter registration, or even the addresses of incumbent members of Congress. No politicians are allowed to take part or even to have a sneak preview before the legislature votes on the plan. Instead of drawing lines to favor one party, the staff uses nonpartisan metrics that all sides agree are fair. The aim is to make sure residents have a voice, not to protect an incumbent or political party.
Advisory and backup commissions
Some of the states have advisory commissions, usually appointed by party leadership, and some of the states have backup commissions, which act in case the legislature fails to pass a redistricting plan. These commissions are chosen in different ways, but they are mostly partisan.
Unlike the states in which the legislature is in charge of redistricting, some states use other methods. Arkansas, Colorado, Hawaii, Missouri, New Jersey, Ohio, and Pennsylvania use commissions for state redistricting on which the members are elected officials. Hawaii and New Jersey also use politician commissions for drawing U.S. congressional districts. In Arkansas and Ohio, the politicians are specific elected officials. In other states, members are nominated by party leadership, sometimes with members from each party.
Independent or bipartisan commissions
In an attempt to clean up the electoral process, Alaska, Arizona, California, Idaho, Montana, and Washington use independent commissions to draw district lines. (Alaska and Montana currently have only one congressional district, so they will not need to redistrict until their apportionment changes.) These six states do not allow legislators or public officials to participate in drawing district lines. They also ban members of the commission from running for public office for several years. Arizona and California also bar legislative staff from serving on the commissions, and California, Idaho, and Washington also bar lobbyists. Independent commissions have usually been established by ballot initiative, since parties that have legislative majorities are unlikely to give up their power voluntarily.
Independent commission work in different ways. We will use examples from California and Arizona.
In California, citizens who want to be part of the California Citizens Redistricting Commission can sign up on a website. They are screened for qualifications and conflicts of interest such as being related to a legislator, and a pool is established. For the 2010 commission, the State Auditor randomly drew from the pool three Democrats, three Republicans, and two applicants from neither major party. These first eight commissioners then selected six additional commissioners from the remaining applicants in the pool. These 14 citizens drew the maps for the 2011 state legislative districts and U.S. Congressional districts, certified by the required “supermajority” of at least three Democrats, three Republicans, and three commissioners from neither major party. There were some legal challenges, but the California Supreme Court ruled unanimously in favor of the maps.
The selection process is somewhat different in Arizona. Applications from the public are reviewed and 25 candidates are nominated, consisting of 10 Democrats, 10 Republicans, and 5 independents. The leaders of the two largest parties in the Arizona House and Senate then select one candidate each to be commissioners, for a total of four. No more than two may be from the same party or the same county. The four partisan commissioners then select an independent chair from a list of candidates. The governor has the power to remove any member with a two-thirds approval by the Senate. The governor did remove the chair in 2011, but the Arizona Supreme Court unanimously overturned the removal.
Cracking and packing
The two main tactics used in gerrymandering are “cracking” and “packing. Cracking means spreading the other party’s voters over many districts in order to dilute their power. Packing is the opposite: concentrating the other party’s voters into as few districts as possible in order to reduce their voting power in other districts. While gerrymandering has been used since the beginning of the United States, sophisticated data-analysis and mapping technologies have made it much easier, much more precise, and much more effective.
For at least 50 years, there had been a gentlemen’s agreement between the parties that after the usually acrimonious decennial redistricting battle, the maps would stay in place until the next census. However, in 2002, after Republicans gained control over more state legislatures than they had since 1952 (21 Republican to 16 Democrat, plus 29 governorships), they broke with tradition and pushed through redistricting plans in mid-cycle.
The battle in Texas grabbed national headlines in 2003 when Republicans sent federal law enforcement officials to track down Democratic legislators who had fled to other states to prevent the legislature from achieving a quorum on this issue. Ultimately, the Republican plan passed, and it resulted in Republicans gaining seven U.S. House seats. This was the first time that Republicans held a majority of Texas’s U.S. House seats since Reconstruction. Texas was only the first step in a national strategy. Georgia Republicans redistricted in 2005 and 2015, and in 2017 the Georgia House passed another bill that would redistrict in such a way as to remove black voters from several congressional districts and replace them with white Republicans. Assuming that the bill is approved by the Republican-controlled Senate and signed by the Republican governor, it will become law in time for the 2018 election.
A mid-decade redistricting plan was passed in Colorado but it was struck down by the state Supreme Court because it violated the Colorado state constitution, which permitted redistricting only once per decade. However, only six states have constitutions that clearly limit U.S. House redistricting to once per decade. In 2005, Voters in California and Ohio voted down initiatives that would have permitted mid-cycle redistricting. In 2006, the U.S. Supreme Court ruled that mid-decade redistricting was legal, so it will no doubt continue. Legislators are also weighing in, and there are several bills pending in the U.S. House of Representatives that seek to limit or end mid-decade redistricting.
Types of gerrymandering
Gerrymandering can be used for partisan purposes, for purposes of reducing or increasing the electoral strength of racial or ethnic groups, and for purposes of reducing challenges to incumbents. We usually think of gerrymandering in connection with electoral districts for the U.S. House of Representatives and for state legislatures, but other districts can also be gerrymandered, such as school districts and judicial districts.
Author David Daley reported in his 2016 book Ratf**ked that Republicans devoted about $30 million to the Republican State Legislative Committee’s Redistricting Majority Project, called REDMAP, ahead of the 2010 redistricting. REDMAP spent its money on winning key races in order to flip legislatures and gain control over the 2011 redistricting process. REDMAP was very successful; Republicans were able to gain full control of 25 state legislatures, compared to six for Democrats, as well as 29 governorships, just in time to carry out the redistricting mandated by the 2010 census. Of the 340 districts that were not being drawn by commissions, Republicans drew more than 200 and Democrats drew fewer than 50. As a result, even though Democratic House candidates got 1.4 million more votes than Republicans did in 2012, Republicans were able to maintain a 234-201 advantage in the House. Since 2010, Republican dominance has grown to 33 legislatures and 33 governorships, double the totals for Democrats, as well as both chambers of Congress and the presidency.
In 2013 the U.S. Supreme Court voted along partisan lines 5-4 to strike down the heart of the 1965 Voting Rights Act, which had worked to prevent racial gerrymandering, voter suppression, and other types of racial electoral inequality. The Voting Rights Act had applied to nine states—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—as well as numerous counties and cities in other states. The right-wing majority (Alito, Kennedy, Roberts, Scalia, and Thomas) declared unconstitutional the requirement in Section 5 that those states must receive clearance by the Department of Justice or a federal court in Washington before they could make changes to voting procedures, including redistricting. Their rationale was that preclearance was no longer needed. Justice Ruth Ginsburg warned in her dissent that getting rid of the measure was like “throwing away your umbrella in a rainstorm because you are not getting wet.” Racial gerrymandering is still illegal, but the lack of a preclearance requirement makes it much harder to stop. Since most redistricting is controlled by Republicans, and since most minorities vote Democratic, racial gerrymandering is likely to benefit Republicans. Democrats claim that racial gerrymandering has exploded in those states since the 2013 decision, and there have been, and continue to be, numerous lawsuits.
Incumbent gerrymandering refers to the drawing of districts that are non-competitive, so that incumbents will nearly always win. The House of Representatives has had a re-election rate of 80-90% since 1964, even though the approval rating for Congress is around 15%. Incumbent gerrymandering represents another way of undermining the will of the voters.
Representatives who have more influence in the state legislatures will usually have more immunity from having their districts eliminated or changed. State legislatures which are dominated by one party are able to use gerrymandering to reduce or eliminate competition for most house seats. This is most notable in Florida, Georgia, Maryland, Michigan, Pennsylvania, and Texas.
Bipartisan gerrymandering can occur when each party is equally represented on a commission by delegates who are closely connected to their parties. When they are charged with drawing a map that is acceptable to both sides, they tend to conspire to draw districts that are not competitive, so that each party’s incumbents can easily be re-elected. California, New Jersey and New York have participated in protection of incumbents of both parties, which also reduces the number of competitive districts.
It should be noted that gerrymandering isn’t the only reason for the incumbent advantage. Incumbents also tend to have more name recognition and more access to financial and government resources. On the other hand, incumbency can be a disadvantage when voters are unhappy with the party in power, but because of gerrymandering, getting rid of incumbents may not be easy. This is one argument for term limits.
Other types of gerrymandering
Anything that has more than one district can be gerrymandered.
Public school districts can be drawn in such a way as to increase or reduce diversity. A 2013 study reported in the Harvard Educational Review examined high school attendance zones in a changing suburban district, using data from the school district, the U.S. Census, the National Center for Education Statistics (NCES), and mapping software from Geographic Information Systems (GIS). The findings indicated that the school officials responsible for redistricting chose to increase racial segregation rather than integration. A 2017 study at the University of Texas at Austin analyzed a large, nationally-representative sample of 9,717 school attendance zones and 9,796 school districts using sophisticated computer technology. They found that both school districts and school attendance zones were more ethnically and racially segregated than they would be without gerrymandering. In fact, even though residential racial/ethnic segregation has decreased since the 1960s, public school segregation has increased. Public schools, which had been historically less segregated than their surrounding neighborhoods, are now becoming more segregated than their neighborhoods. It is hoped that the technology that enables these analyses will also facilitate legal challenges.
On Oct. 6, 2017, the North Carolina House of Representatives passed a bill that would redraw the boundaries of election districts for Superior Court and District Court judgeships and for district attorneys, even though there is no requirement for judicial redistricting. Democrats claim that the redistricting proposal is about helping Republicans win more judicial seats, and that the proposed judicial maps are racially and politically gerrymandered. Specifically, the maps divide urban counties into districts that help Republicans win more seats. They would force some Democratic judges to run against each other, and they would result in a dramatic reduction on African-American and other minority judges. According to Melissa Price Kromm, director of North Carolina Voters for Clean Elections, “This craven attack on our courts illustrates how far an illegally-gerrymandered legislature will go to maintain power and influence.” Presumably, if North Carolina gets away with it, other states will follow suit.
Some state and local governments draw legislative districts around large prisons and count the prisoners as constituents, even though all but two states bar prisoners from voting. This increases the districts’ population for gerrymandering purposes, and it dilutes the votes of real voters. The reason they get away with this is that the Census Bureau counts prisoners as if they were residents of their cells, even though under state law they remain residents of their previous addresses, since the average prison sentence is less than 34 months. About 1,500 prisons are located in rural areas, so these areas gain more influence over elections than they are legitimately entitled to. You can watch a You Tube about prison-based gerrymandering in Iowa. Since prisoners are disproportionately black and brown people from urban communities, prison-based gerrymandering weakens minority voting strength and transfers political power from urban communities of color to predominantly white areas. The NAACP Legal Defense Fund is urging the Census Bureau to count prisoners as residents of their pre-incarceration address, but this move is opposed by those who benefit from prison gerrymandering.
The Princeton Gerrymandering Project has a wealth of information about gerrymandering. They describe the tests that are available to measure the amount of gerrymandering and they also use test data to show the effects of gerrymandering on each state. You can go to the website and check how gerrymandering affects your state.
The goal of partisan gerrymandering is to use cracking and packing to increase a party’s political power beyond the amount it is entitled to based on its share of the vote. Here is how cracking and packing are explained on the Princeton website:
“Packing” occurs when as many supporters of the victim party as possible are crammed into a small number of districts, creating a few overwhelming wins for the victim party. The remaining members of the victim party are then “cracked”, or spread evenly across a large number of districts, so that they comprise a large but minority block of voters (typically 40 – 45%). Luckily, cracking and packing creates a distinctive pattern of wins for both the perpetrating and victimized parties, where the victim party wins its few seats by overwhelming margins and the perpetrating party wins its many seats by considerably lower margins. This pattern, and thus partisan gerrymanders, can be detected with the help of a little math.
The tests that are used to detect partisan gerrymandering are explained below, but if you would like to see a video, you can look at a tutorial.
One test is called Lopsided Wins. In a fair election, the districts won by each party would look very similar. You would expect to see some districts that contain a big majority of voters for each party, some that contain a less reliable majority, and some that are tossups. The districts in a gerrymandered state look very different. Because of packing, the victim party will have big majorities in a few districts. Because of cracking, the perpetrator party will have small but safe wins in many districts. Statistical tests can calculate the probability that this effect occurred through gerrymandering rather than by chance.
A second test is called Consistent Advantage, or mean-median difference. This is done by comparing the number of Congressional seats won by a party against its statewide vote numbers. A large difference indicates the likelihood of partisan gerrymandering.
A third test is called Excess Seats, or simulated elections. You look at the statewide vote won by one party and ask how many congressional seats the party would have won using nationwide trends. You can calculate the deviation by comparing the number of seats won in that state against comparable elections across the country. A large deviation suggests gerrymandering.
The Princeton website lets you actually run the three tests by entering a state and a year. I entered California 2016, and it said Fail for the first two tests and Skipped for the third (not sure why). It said:
In California’s 2016 election, Republicans won their districts with an average of 59.2% percent of the vote, and Democrats won their districts with an average of 69.8% percent of the vote. The difference between the two parties’ win margins indicates California may be gerrymandered to gain an advantage for Republicans. The chance that this difference would have arisen by nonpartisan processes alone is 0.01% (or 1 in 15878).
This surprised me, both because California has a Democratic majority and because it has an independent redistricting commission. I emailed Princeton to ask whether they have an explanation but received no reply.
There is another test not on the Princeton website: the efficiency gap, developed by Nicholas Stephanopoulos, Professor at the University of Chicago Law School, and Eric McGhee, Research Fellow at the Public Policy Institute of California. The goal of gerrymandering is to force the other party to waste votes, and this method calculates the number of votes wasted by each party in an election to determine whether gerrymandering occurred. A wasted vote is either (1) any vote cast for a losing candidate or (2) all the votes cast for the winning candidate that are in excess of the number required to win. The wasted votes are added up for each party and divided by the total number of votes in the state. This yields a percentage figure, which is the efficiency gap. The developers of the test suggest that a gap of seven percent or more indicates gerrymandering.
According to The New York Times, there is a second standard that is sometimes used in addition to the seven percent threshold: whether the congressional map costs a party at least two seats in a state. Small states are more likely to fail the seven percent test, while bigger states are more likely to fail the two-seat test. In the 2016 congressional elections, five states were guilty of partisan gerrymandering by both measures: Michigan, New York, North Carolina, Pennsylvania, and Texas. Except for New York, few people would deny that these lines were drawn to favor Republicans. In addition, six medium-sized states all have efficiency gaps over 10% in favor of the party that controlled redistricting but do not meet the two-seat threshold: Alabama, Georgia, Maryland, Ohio, South Carolina, and Virginia. Indiana has a 9% efficiency gap.
These results seem reasonable but not quite perfect. Illinois, which was redistricted by Democrats, had an efficiency gap that favored Republicans, and New York, which was redistricted by a magistrate appointed by the court, has a 10% efficiency gap in favor of Republicans. The reason for these odd results may be that the efficiency gap can’t distinguish between votes wasted by gerrymandering vs. those wasted by other causes. For example, Democrats usually win big cities with more than 80% of the vote, which means that there are many wasted votes, but they are not the result of gerrymandering.
Some experts define extreme partisan gerrymandering as redistricting that violates two or more of the tests described above. The use of more than one test helps us make a more confident judgment that a particular map is actually a partisan gerrymander.
By applying tests to all the cases of congressional redistricting in the last 50 years, trends have become evident. The data available at the Princeton website show that extreme partisan gerrymandering did not occur in more than one state at a time until the year 2000. Gerrymandering started increasing in 2002, with five state gerrymanders—four Republican and one Democratic. What the site refers to as the Great Republican Gerrymander of 2012 involved seven states gerrymanders at the same time, all Republican. According to analysis by American Prospect as well as that of the Brennan Center, “Republicans have gained between 15 and 20 congressional seats above what partisan-neutral maps would have yielded.” Some researchers posit that the Democratic disadvantage may be because their voters are more clustered in cities. Because of clustering, Democrats need an extra two percent of the national vote in order have an even chance of winning a majority in the House of Representatives. However, since 2012, gerrymandering has increased that margin to about eight percentage points. In some gerrymandered states such as North Carolina or Pennsylvania, Democrats must win by at least 15 percentage points to have an equal chance to win a majority.
Gerrymandering in presidential elections
Although there are many things wrong with the electoral college, it has historically been immune to gerrymandering because most states conduct presidential elections on a statewide basis. Since state borders are fixed, they cannot be gerrymandered. However, Maine and Nebraska have a different method of choosing electors: they allocate their electoral votes by U.S. House district, and those districts can be gerrymandered. Legislation that would adopt the Maine/Nebraska model has been discussed or introduced in Florida, Minnesota, New Hampshire, Ohio, Pennsylvania, Wisconsin, and Virginia. Critics call this effort a scheme by Republicans to rig elections so they can gerrymander presidential as well as congressional elections. These kinds of “reforms” are anti-democratic. A reform in the direction of democracy would be instituting a national popular vote, which would be immune to gerrymander.
When one party controls a state government, it’s in a position to play “constitutional hardball” and institute many anti-democratic “reforms.” They can promote gerrymandering of the electoral college; they can choose voting equipment manufactured by party supporters that cannot be audited; and they can engineer many types of voter suppression. For purposes of manipulating presidential elections, it is not necessary that these types of manipulations be instituted in all the states; it is only crucial in swing states: Florida, Ohio, Pennsylvania, Michigan, Virginia, North Carolina, Colorado, Iowa, Nevada, New Hampshire, and Wisconsin.
National Democratic Redistricting Committee (NDRC)
Recently, Democrats seem to have noticed their loss of congressional seats, and they formed the NDRC to counter REDMAP. Chaired by former Attorney General Eric Holder with the support of former President Barak Obama, the NDRC hopes to influence the next round of redistricting in 2021. They have a four-part strategy which includes legal action, mobilizing grassroots energy, supporting reforms, and winning targeted elections. Following are two actions that NDRC is taking:
The NDRC is supporting Ralph Northam for the Virginia gubernatorial election in November, 2017 because the governor has the power to veto Virginia’s gerrymandered maps
The NDRC’s legal arm, the National Redistricting Foundation, has filed a lawsuit in Georgia to challenge district maps that deliberately minimize the votes of African-Americans.
Manipulating the census
The U.S. census is much more important than most people realize. The data are used to reapportion the House of Representatives every 10 years and to draw congressional districts within states. If the data are inaccurate, the districts will not be fair and representative of the population; some groups will be overrepresented and some will be underrepresented. Federal agencies also use census data to enforce fair housing and fair hiring, and census data is the basis of the distribution of more than $400 billion in federal funding, especially in the form of large grants to states for things like aid to low-income families, highway infrastructure, and Medicaid. Census undercounts guarantee that states will be strapped for funding in these areas over the next decade.
Even during Obama’s presidency, there were substantial undercounts of people who were likely to vote Democratic. The government estimated an undercount of 1.5 million people, mostly renters, young people, African-Americans, and Hispanics. The 2010 census had special challenges in counting families displaced by job loss and the foreclosure crisis, as well as immigrants fearful of deportation and people distrustful of government surveys. According to the government, while renters were undercounted, homeowners were overcounted. While males ages18-49 were the age group most undercounted, adults 50 and over were overcounted. More than 100 U.S. cities challenged the official 2010 results as too low.
In May, 2017, as work geared up for the 2020 census, Census Bureau Director John Thompson, a 27-year veteran, announced his resignation, reportedly over the politically-motivated defunding of his department. Critics of the Trump administration accuse Republicans of purposely sabotaging the 2020 census for partisan advantage.
In the 18th and 19th centuries the country was small enough to allow census workers to walk door-to-door to count the population. However, by 1850 the population had grown so big that this method had become impractical, and a census form that could be mailed and returned was added. This worked well during the years when sending and receiving mail was part of the culture. However, 21st century Americans rarely return printed forms, so the Census Bureau added some new tools, including data analysis of U.S. Postal Service records, satellite analysis of housing blocks, and statistical projection of population in dense areas where counting every resident is not feasible. Republicans objected to the use of these methods for the 2010 census, but Democrats controlled Congress from 2006 to 2010 and the White House from 2008, so Republicans did not get their way.
However, now Republicans control the White House and also have congressional majorities at least until the 2018 midterm elections. It appears that both the president and Congress are working to make sure that the only methods used are mail-in forms and voluntary responses to an online survey, while also making sure that the Bureau lacks the funds for any kind of effective census. This is almost guaranteed to result in a big undercount, particularly of African-Americans, Hispanics, and young people.
The person in charge of finding a replacement for John Thompson is Commerce Secretary Wilbur Ross, a former leveraged buyout specialist known as the “King of Bankruptcy.” In the 1980s, Donald Trump’s three casinos in Atlantic City were under foreclosure threat, and Ross helped convince bondholders to allow Trump to keep control of his casinos. Ross has appointed an acting director of the Census Bureau, and there is speculation that the job could be made permanent if the acting director moves away from Thompson’s technology updates.
There are other ways to produce an undercount. The census is a count of the total population regardless of citizenship status, and with the Trump administration’s record of deportations, it can be expected that the fear of ICE could suppress the counts of Hispanics, especially since the Trump administration has proposed requiring census takers to inquire about immigration status. Also, tiny advertising budgets can mean that underserved populations won’t know about the census, especially in jurisdictions with significant non-English speaking populations.
Apportionment of congressional seats, which is the basis for apportionment for the Electoral College, is sensitive to small changes in populations. Seats can be assigned to one state or another based on only a few residents. In this way, manipulation of the census can affect presidential as well as congressional elections. The underfunding of the census by president Trump and the Republican-controlled Congress, along with state laws restricting ballot access after protections in the Voting Rights Act were gutted, have led to fears that the 2020 Census will be manipulated to ensure Republican dominance for the next decade.
Court cases about gerrymandering
Partisan and racial gerrymandering cases are ongoing in many states and at the U.S. Supreme Court. Following are some of the most important.
Vieth v. Jubelirer, 2004
The Supreme Court reviewed partisan gerrymandering when a map that gave an overwhelming advantage to Republicans in Pennsylvania (and still does) was challenged. The four most conservative justices ruled in favor of keeping the gerrymandered map and the four most liberal justices voted for invalidating it. All eight justices agreed that partisan gerrymandering was unconstitutional, but the conservatives said that federal judges should stay out of the issue because there was no manageable standard for deciding how much partisan gerrymandering was excessive. The more liberal justices said that federal courts should intervene when legislatures use redistricting for political gain. The swing vote was Anthony Kennedy, who voted with the conservatives but left a door open. He thought that partisan gerrymandering was unconstitutional because it violates the First Amendment rather than the Equal Protection clause of the Fourteenth Amendment. As he saw it, the Equal Protection clause focuses on discrimination based on characteristics such as race, religion, sex, and national origin, but not on political affiliation. The First Amendment, on the other hand, focuses on whether the government rewards or punishes a particular point of view. Kennedy also challenged plaintiffs to propose a standard that would define when partisan electoral results are too far out of line with the composition of the state’s voters as a result of redistricting.
After the Vieth case, other cases were heard, but partisan gerrymandering continued to flourish.
Gill v. Whitford, 2017
This Wisconsin case includes the standard that Justice Kennedy asked for, and progressives hope for a decision that will put partisan gerrymandering in check. The Supreme Court heard the case in October, 2017 and is expected to issue its ruling in June, 2018.
Republicans took control of redistricting in Wisconsin in 2010, hiring redistricting consultants and using sophisticated software to crack and pack the electorate in such a way as to lock in GOP dominance for 10 years. In the 2012 election, Republicans won 60 of the 99 seats in the Wisconsin Assembly despite winning only 48.6% of the two-party state-wide vote. In 2014 they won 63 seats with only 52% of the state-wide vote. The efficiency gap was 13% in 2012 and 14% in 2014 (more than 7% indicates a partisan gerrymander). In 2015, a group of Democratic voters challenged the map and, for the first time in 30 years, a federal District court invalidated a partisan gerrymander. The decision followed Justice Kennedy’s reasoning in Veith, based on the First Amendment, and it also provided a workable standard that judges could use, called “entrenchment.” Entrenchment occurs when a partisan map not only favors one party, but also prevents voters from holding elected officials accountable by making it too difficult to vote them out of power. The idea is that entrenchment’s harm is not just to a political party, but to democracy itself. The Wisconsin redistricting plan could allow Republicans to remain in control regardless of the will of the voters.
The state of Wisconsin appealed the decision of the District court, and the U.S. Supreme Court agreed to hear the case. Oral arguments were heard on October 3, 2017, and the justices seemed to have their usual partisan split. As expected, Justice Kennedy seems to be the swing vote, and a decision is expected in June, 2018.
Wisconsin has no initiative petition process, so voters are not able to put questions on the ballot about taking redistricting out of the hands of politicians, as they did in California. In Wisconsin, only politicians can put measures on the ballot. Wisconsin’s voters have to rely on the U.S. Supreme Court, which has never struck down a partisan gerrymander.
Progressives argue that if the Supreme Court does not put limits on partisan gerrymandering, voters in the United States will come to believe that their votes don’t matter and lose faith in democracy, especially after the Citizens United case. In 2010, the Supreme Court decided 5-4 along partisan lines that money equals free speech and refused to place any limits on campaign finance spending by corporations or other groups. The decision unleashed a massive flood of money that has strengthened the influence of corporations and other big donors and undermined the influence of individual voters.
The stance of the Supreme Court while we await a decision in Gill v Whitford has been that partisan gerrymandering is allowed but racial gerrymandering is not. The distinction can be difficult because racial and partisan gerrymanders so often overlap. Racial gerrymanders affect particular demographic groups who may also vote for a particular party. Racial gerrymandering is the deliberate and arbitrary distortion of district boundaries for racial purposes, and it violates the Equal Protection Clause. Racial gerrymanders are quite common. You can see a list of partisan and racial gerrymandering cases pending as of this writing on the website of the Brennan Center for Justice.
Efforts to reform gerrymandering
Grassroots and advocacy groups in many states are working to reform gerrymandering ahead of the 2021 redistricting. Some are creating ballot initiatives such as those that led to the independent redistricting commissions in Arizona and California. Arizona’s Proposition 106, passed in 2000, and California’s Proposition 11, passed in 2008, took redistricting out of the hands of legislators and gave it to citizens. While no system is perfect, the consensus seems to be that independent commissions have resulted in districts that have less gerrymandering of all types: partisan, racial, and incumbent. Of course, partisan legislators challenged the commissions, but the U.S. Supreme Court ruled in 2015, along the usual left-right lines with Justice Kennedy as the swing vote, that the commissions are legal. Let’s hope Justice Kennedy and the four more liberal justices remain in good health.
Twenty-four states allow ballot initiatives, a form of direct democracy. Citizens can gather a certain minimum number of signatures on a petition and bring about a public vote. Two states, Maryland and New Mexico, allow a veto referendum instead: after a state legislature passes a law, citizens can collect signatures to place that law on the general election ballot; then they can vote whether to keep it or nullify it. Both ballot initiatives and veto referenda give citizens some control over gerrymandering. Unfortunately, twenty-four states allow neither ballot initiatives nor veto referenda. However, citizens of all states still have the option of trying to elect legislators who support redistricting reform.
Currently, citizens are working on ballot initiatives to reform the redistricting process in Colorado, Michigan, Missouri, Ohio, Oregon, Pennsylvania, South Dakota, and Utah.
Although states are responsible for redistricting, the U.S. Congress can set rules about how the districts are drawn. They have used this power in the past, and they are proposing some federal-level reforms now. Ten federal bills about redistricting were filed as of September, 2017. Topics they address include: placing limits on mid-decade redistricting and limiting the number of redistrictings that can be done in one decade; requiring greater transparency when drawing maps; requiring forms of preclearance to prevent racial gerrymandering; requiring various types of commissions; prohibiting use of political data; providing opportunities for public comment; requiring ranked choice voting and multi-member districts; and ending partisan, racial, and incumbent gerrymandering. I would imagine that these reforms have a better chance of passing in jurisdictions where the majority of legislators do not belong to the same party that benefits from gerrymandering.
On the state level, nearly 150 bills affecting gerrymandering have been introduced. The Brennan Center for Justice has a state reform tracker that allows you to look at the reform proposals in each state. These bills include:
Bills in 25 states that would adopt some form of a commission (advisory, backup, or independent) to draw congressional and/or legislative districts;
Bills in 19 states that would explicitly prohibit districts lines from being drawn with the intent to favor or disfavor a political party or incumbent;
Bills in 15 states that would ban the use of political data to draw districts.
Bills in 22 states that would create or clarify the criteria to be used in drawing maps, such as requiring preservation of communities of interest; and
Bills in 21 states that establish requirements for public engagement in the redistricting process.
Proponents of voting equality are hoping that the U.S. Supreme Court will set guidelines for partisan gerrymandering in the Gill v. Whitford case. Standards already exist for racial gerrymandering, and there are many cases pending in state courts. For a description of all the pending state and federal cases, click here.
We mentioned the NDRC earlier. Led by Eric Holder with the support of Barak Obama, it hopes to reduce Republican gerrymandering and voter suppression. Although the aim is partisan, if it works, it should result in a more equal voice for voters. You can join the NDRC here.
The National Democratic Redistricting Committee (NDRC) and Organizing for Action (OFA) will join forces to reform gerrymandering. OFA will use its grassroots infrastructure to organize, educate, and engage supporters to help NDRC’s mission. In the coming months, OFA will be organizing house parties to educate people around redistricting issues and outline future plans for how this program will make an impact on a state-by-state basis. There are many opportunities for citizen involvement on its website. Wikipedia describes OFA as “a nonprofit 501(c)4 organization and community organizing project that advocates for the agenda of former U.S. President Barak Obama. The organization is officially non-partisan, but its agenda and policies are strongly allied with the Democratic Party.”
What can citizens do?
If you support the Democratic Party, you can get involved with NDRC and/or OFA.
In each state, different groups will be in charge of redistricting, but there are things you can do to influence the process. Each state has a website that you can look at to get started. For example, I clicked on the California redistricting website and found a lot of information about redistricting and also a number to call if I have questions. You can ask questions such as: whether the data used to draw the districts are publicly available; whether there are public hearings that allow constituents to have input, and whether that input will be incorporated in the maps. If there are hearings, you can attend them; if there are no hearings, you can demand them. In many cases there are community organizations that will coordinate attendance at these meetings to make sure community voices are heard. For example, I Googled “California community organizations that coordinate attendance at redistricting hearings.” I didn’t find exactly what I was looking for, but I did find a site that I can contact for information: the California Local Redistricting Project (CLRP). Here is what they say about themselves:
The California Local Redistricting Project (CLRP) was launched to provide policymakers, community groups, and advocacy organizations with educational resources and technical assistance on local redistricting reform. CLRP staff have given presentations on redistricting, provided guidance on redistricting commission best practices, and assisted in drafting ordinances. If you are interested in pursuing redistricting reform in your jurisdiction, please reach out to us!
I imagine there must be something comparable in every state. In addition, there are many grassroots advocacy groups working on redistricting or on related issues, such as trying to make sure there is an honest census. I Googled “grassroots organizations to reform gerrymandering” and one of the sites that came up was Reclaim the American Dream. They have a page called Where to Get Help: Grassroots Reforms Fight Gerrymandering. There is a list of organizations with descriptions and contact information. Some of them want members, volunteers, and/or donations. You can be as involved as you want to be.