by: Erin Flaherty
Have you ever wondered why there’s a North and a South Dakota? Probably not, to be quite honest, but the reason why dates back to 1889 when the Dakota territory entered the union. Instead of entering as a single state, the territory split into two. This move was orchestrated by the Republican party, and would give the party more electoral votes in presidential elections. This sort of territorial trick is called gerrymandering, and it dates back to nearly 100 years before this particular incident.
Gerrymandering, by definition, is the manipulation of the boundaries of an electoral constituency so as to favor one party or class. To put that into simpler terms, legislators will move around the boundaries of districts so their party wins more representatives despite being the minority in the state. If this still seems confusing to you, consider this example; if a five district state is made up of 40% Republicans and 60% Democrats, it’d make sense that the Republicans would win one or two of the districts. However, through gerrymandering, legislators could pack most of the Democrats into two districts and make them the minority in the other three, giving the Republicans a win in three districts instead. You might be thinking, “Does this actually happen?” or “Is that even legal?”. But you might know that this is actually fairly common in the United States, especially recently in some 2016 state representative elections.
But when did gerrymandering start? And why does it have such a peculiar name? Well, the first instance of gerrymandering dates back to 1788, when Patrick Henry, a founding father and a former governor of Virginia, convinced legislators in the state to redraw districts to give James Monroe a better chance against James Madison, which ultimately failed.
But the instance that coined the term was in 1812, when Elbridge Gerry, the governor of Massachusetts, passed a bill that created a strangely shaped district to stop the Federalist party from winning the election that many thought looked like a salamander. With the combination of his last name and the quaint shape of his new district, the legal method of vote manipulation was named.
After these two gerrymandering situations arose, Congress put in place the Apportionment Act of 1842, which required that congressional districts be as compact and contiguous as possible. However, gerrymandering still continued after this act. It is hard to argue that gerrymandering is actually against the law. This is because it doesn’t necessarily violate the Constitution and there is no established standard to judge cases off of. This is why many court cases against gerrymandering ultimately fail.
Gerrymandering has been brought to the attention of the Supreme Court several times in recent years. In October of 2017, the case of Gill v. Whitford, regarding gerrymandering in Wisconsin was brought to the Supreme Court. Wisconsin was a part of the REDMAP (Redistricting Majority Project) plan. This was a plan facilitated by Republicans that used sophisticated software to regain majorities in several states. In 2017, Wisconsin's republicans won 53 percent of the assembly vote but took 64 of 99 legislative seats. The case has been taken to the Supreme Court due to disagreement on whether legislators should continue to draw legislature boundaries or if it is necessary for judges to do this to prevent gerrymandering.
A standard by which gerrymandering can be measured was proposed during the Gill v. Whitford case, called the efficiency gap. This gap would “ count the number of votes each party wastes in an election to determine whether either party enjoyed a systematic advantage in turning votes into seats”, as described by the Brennan Center for Justice. This standard, that was developed by Professor Nicholas Stephanopoulos, at the University of Chicago Law School, still has its flaws. The results are only accurate if each district has an equal amount of people voting. It's hard to explain how this affects the formula that is used when calculating an efficiency gap, but when tested, a state where a party wins 60 percent of the vote and receives 60 percent of the seats is flagged for partisan gerrymandering.
The Supreme Court is also currently addressing the case of Benisek v. Lamone in regards to Democratic gerrymandering in Maryland. Seven of the eight congressional seats were taken by Democrats. The results of both cases are set to be decided sometime in June of 2018, and many are wondering what role the Supreme Court can and will have in cases of gerrymandering. The sides arguing against gerrymandering in both of these cases say that gerrymandering violates the first amendment’s protection of political association, and whether the Supreme Court agrees with this could potentially change the way that district lines are created.
Many wonder what the Supreme Court would be able to do to prevent gerrymandering. It’s unreasonable to ask that they overview every map, and even then, how would they evaluate them? One of the possible solutions that's already been implemented in the US is the use of independent commissions in the drawing of district lines. In most states, like Maryland and Wisconsin, lawmakers draw legislative in congressional districts. This leaves room for gerrymandering since the legislators draw their own boundaries and can easily manipulate them. Only a handful of states, however, have independent commissions where committee members draw districts. This helps keep politics and the potential for gerrymandering out of the process of drawing districts, since lawmakers and officials cannot be on the commission. Although it's impossible to create a commission that is free of any bias and partisanism, it seems like a great choice considering the success these states have had in avoiding gerrymandering scandals.
Another proposed solution is the use of advanced algorithms to insure the fair redrawing of districts. Brian Olson has developed an algorithm, somewhat similar to the efficiency gap, that puts into consideration how compact districts are and if they have equal amounts of voters when creating district maps. Still, this method has its flaws, as deciding the priorities and ideas that algorithms would use would ultimately still run into partisan disagreement.
The role that the Supreme Court will have in either implementing a solution to gerrymandering or letting the issue continue will speak volume on the matter of the true power of the citizens in the US. The refusal to choose a solution because of its possibility to be partisan in some way is nonsensical considering the alternative of allowing states to continue partisan gerrymandering. We will see throughout June what is the true limit of power on state legislators, because after all, is it the voters who choose their representatives or the representatives who choose their voters?