Gerrymandering is drawing electoral boundaries to maximize a targeted voting block’s “wasted votes”

Table of Contents

1. Beware the Gerry-Mander!
2. How Gerrymandering Works
   1. Census, Apportionment, and Redistricting
   2. Cracking and Packing
3. Racial and Partisan Gerrymandering
4. Rucho v. Common Cause
   1. The Case
   2. NY Times Interactive on Gerrymandering in North Carolina (NYT)
   3. John Roberts for the Majority
   4. Elena Kagan for the Minority
   5. Roberts’ Arguments, Reconstructed
   6. Kagan’s Argument, Reconstructed
5. The Efficiency Gap
   1. A Procedure for Measuring Gerrymandering, by Alvin Chang (Vox)
   2. Wasted Votes
   3. Efficiency Gap
   4. Analysis of the Efficiency Gap
6. Addendum
7. Gerrymandering: Quick Take

Beware the Gerry-Mander!

A political cartoon of 1812 satirized Governor Gerry of Massachusetts for redrawing districts, inadvertently making them look like a salamander.

• Gerrymandering is the practice of diluting the voting power of the opposing party by drawing electoral boundaries that make it “waste votes.”
• britannica.com/topic/gerrymandering
  • Gerrymandering is the practice of drawing the boundaries of electoral districts in a way that gives one political party an unfair advantage over its rivals (political or partisan gerrymandering) or that dilutes the voting power of members of ethnic or linguistic minority groups (racial gerrymandering).

How Gerrymandering Works

Census, Apportionment, and Redistricting

• The US Census is taken every ten years (next census 2020)
• Congressional Apportionment is the process by which seats in the House of Representatives are distributed among the 50 states according to the census.
  • Computing Apportionment
• Congressional Redistricting is the process whereby states determine voting districts based on
  • Census data
  • Number of House seats
  • One person one vote rule
    • In  Baker v. Carr (1962) the Supreme Court instituted the one person, one vote rule that, under the Equal Protection Clause of the Constitution, legislative voting districts must be the same in population size.
  • Voting Rights Act of 1965
    •  Prohibits plans that intentionally or inadvertently discriminate on the basis of race, which could dilute the minority vote.
• State legislatures redraw voting districts in 28 states. Other states use commissions

Cracking and Packing

• Gerrymandering is diluting the voting power of a targeted group by drawing electoral boundaries that crack and pack its members
  • Cracking is spreading members of the targeted group into districts where they’ll have large minorities, thus increasing the number of losing votes of the targeted group.
  • Packing is cramming members of the targeted group into districts where they’ll have enormous majorities, thus increasing the number of unneeded votes of the targeted group.

• This is the best explanation of gerrymandering you will ever see, WaPo
  • Cracking
    • Grid #2 uses cracking, spreading the voters of the opposition party into portions of districts so they’re in the minority.
  • Packing
    • In addition to cracking Grid #3 uses packing, jamming many voters of the opposition party into a single district, wasting their votes.
  • Every district must be contiguous and have the same number of voters, 10.

• How to spot an unconstitutionally partisan gerrymander, explained, Vox

Communities, like Raleigh and Hillsborough, were packed together in the Fourth District to concentrate Democratic voters, while other communities, like Greenville, Asheville, and Greensboro, were cracked between several districts to dilute their voting power.

Racial and Partisan Gerrymandering

• Gerrymandering is diluting the voting power of a targeted group by drawing electoral boundaries that crack and pack its members
• Racial gerrymandering, where the targeted group is a racial or ethnic minority, has been ruled unconstitutional.
  • Thornburg v. Gingles, 1986
• Partisan gerrymandering, where the targeted group is a political party, has been ruled beyond the power of the courts to decide.
  • Rucho v. Common Cause, 2019

Rucho v. Common Cause

The Case

• Plaintiffs in North Carolina and Maryland filed suits challenging their States’ congressional districting maps as unconstitutional partisan gerrymanders, alleging violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2
• Chief Justice Roberts delivered the opinion of the Court, joined by Thomas, Alito, Gorsuch, and Kavanaugh. Kagan filed a dissenting opinion, joined by Ginsburg, Breyer, and Sotomayor.
• Decided June 27, 2019
• Holding
  • Partisan gerrymandering claims present political questions beyond the reach of the federal courts.  Such claims are not justiciable.
    • Justiciable (jus-TISH-a-bull) = capable of being decided by legal principles or by a court of justice 
• oyez.org/cases/2018/18-422
• law.cornell.edu/supremecourt/text/18-422

NY Times Interactive on Gerrymandering in North Carolina (NYT)

John Roberts for the Majority

• We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. (page 30)
• To hold that legislators cannot take their partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. (page 2, 12)
• The “central problem” is “determining when political gerrymandering has gone too far.” (page 2,13)
• … the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. It is not even clear what fairness looks like in this context. It may mean achieving a greater number of competitive districts by undoing packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But it could mean engaging in cracking and packing to ensure each party its “appropriate” share of “safe” seats. Or perhaps it should be measured by adherence to “traditional” districting criteria. Deciding among those different visions of fairness poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments. And it is only after determining how to define fairness that one can even begin to answer the determinative question: “How much is too much?” (page 3)
• The fact that the Court can adjudicate one-person, one-vote claims does not mean that partisan gerrymandering claims are justiciable. This Court’s one-person, one-vote cases recognize that each person is entitled to an equal say in the election of representatives. It hardly follows from that principle that a person is entitled to have his political party achieve representation commensurate to its share of statewide support. Vote dilution in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. That requirement does not extend to political parties; it does not mean that each party must be influential in proportion to the number of its supporters. The racial gerrymandering cases are also inapposite: They call for the elimination of a racial classification, but a partisan gerrymandering claim cannot ask for the elimination of partisanship. Pp. 15–21. (page 3)
• Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible with democratic principles,” Arizona State Legislature, 576 U. S., at ___ (slip op., at 1), does not mean that the solution lies with the federal judiciary. (page 30)
• But the history of partisan gerrymandering is not irrelevant. Aware of electoral districting problems, the Framers chose a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress, with no suggestion that the federal courts had a role to play. (page 2)
• The Framers also gave Congress the power to do something about partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open. Pp. 30–34. (page 5)

Elena Kagan for the Minority

• Partisan gerrymandering …
  • …subverts democracy (page 8)
    • The “core principle of republican government,” this Court has recognized, is “that the voters should choose their representatives, not the other way around.” 
  • …implicates the Fourteenth Amendment’s Equal Protection Clause  (page 11)
    • The Fourteenth Amendment, we long ago recognized, “guarantees the opportunity for equal participation by all voters in the election” of legislators.
  • …implicates the First Amendment (page 12)
    • That Amendment gives its greatest protection to political beliefs, speech, and association. Yet partisan gerrymanders subject certain voters to “disfavored treatment”—again, counting their votes for less—precisely because of “their voting history [and] their expression of political views.”  
• A workable test for evaluating a vote dilution claim has three parts: (1) intent; (2) effects; and (3) causation. (page 16)

Roberts’ Arguments, Reconstructed

• Drawing district lines is a political rather than a legal matter because the Framers entrusted districting to political entities.
  • Article 1, Section 4
    • The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof
• Neither the Constitution nor legal standards justifies the judiciary reallocating political power (even in the interest of fairness).
• Therefore, neither the Constitution nor legal standards justifies the judiciary drawing district lines (even in the interest of fairness).

• This Court’s one-person, one-vote cases recognize that each person is entitled to an equal say in the election of representatives. It doesn’t follow from this that each person is entitled to have his political party achieve representation commensurate to its share of statewide support.

• There’s no workable test for determining whether a redistricting plan is unfair. So there’s no way for a court to decide such matters.

Kagan’s Argument, Reconstructed

• Partisan gerrymandering violates
  • The core principle of republican government
    • The Court has recognized “that the voters should choose their representatives, not the other way around.” 
  • Fourteenth Amendment’s Equal Protection Clause
    • The Fourteenth Amendment, we long ago recognized, “guarantees the opportunity for equal participation by all voters in the election” of legislators.
  • First Amendment
    • That Amendment gives its greatest protection to political beliefs, speech, and association. Yet partisan gerrymanders subject certain voters to “disfavored treatment”—again, counting their votes for less—precisely because of “their voting history [and] their expression of political views.” 
• Therefore, partisan gerrymandering is unconstitutional.

• Standards adopted in lower courts do indeed meet the contours of the “limited and precise standard” the majority demanded yet purported not to find.
• A workable test for evaluating a vote dilution claim is based on intent, effects, and causation.

The Efficiency Gap

A Procedure for Measuring Gerrymandering, by Alvin Chang (Vox)

Wasted Votes

Wasted Votes are votes for the losing candidate or votes for the winning candidate in excess of the number needed to win

Efficiency Gap

The plaintiffs in Gill v. Whitford suggested that an efficiency gap of 7 percent or more should be considered legally significant, because gaps equal to or greater than that threshold are very likely to persist through the life of a redistricting plan (typically 10 years). In the elections in 2012 and 2014, they noted, the efficiency gap favored Republicans by 13 percent and 10 percent, respectively.

Analysis of the Efficiency Gap

• If congressional districts have been partisan-gerrymandered successfully, the efficiency gap will be high.
• But a high efficiency gap does not prove partisan gerrymandering because of
  • Geography and natural boundaries
  • Distribution of voters of different parties throughout the state
  • Voting Rights Act
• It is, however, prima facie evidence of partisan-gerrymandering.
• Additional evidence
  • Proof of discriminatory partisan intent
  • Analysis of alleged instances of packing and cracking, e.g. packing Raleigh and Hillsborough into NC’s Fourth District
    • Would a more “naturally” drawn district reduce the efficiency gap?

Addendum

View Addendum

Gerrymandering: Quick Take

• Gerrymandering is drawing electoral boundaries to maximize a targeted voting bloc’s unproductive votes, i.e. those votes that don’t contribute to winning.
  • You can make the targeted bloc waste votes by arranging districts so that
    • you win districts by slim margins, thus minimizing your unproductive excess votes and maximizing the targeted voting bloc’s unproductive losing votes
    • you lose districts by large margins, thus minimizing your unproductive losing votes and maximizing the targeted voting bloc’s unproductive excess votes
• Partisan gerrymandering is where the the targeted bloc is a political party.
  • In Rucho v. Common Cause, the Supreme Court ruled that partisan gerrymandering is beyond the purview of federal courts.
• Racial gerrymandering is where the targeted bloc is a racial minority.
  • The Voting Rights Act prohibits racial gerrymandering.

View entire Gerrymandering