Of Packs, Cracks, & Quacks: A New Round of Gerrymandering Takes Shape

From the Editors | Gerrymandering vs. the voters |

Issue 10 | October 12, 2021

Most major sporting events are held annually, such as the World Series, the Superbowl, and the Triple Crown; some every four years, like the World Cup and Olympics. But the uniquely American political sport of gerrymandering (the redrawing of electoral districts for partisan gain) kicks off just once a decade with the new census data. That 2020 data has now been passed off to state legislatures and independent redistricting commissions (where they exist.) So let the gerrymandering games begin!

Or continue, because gerrymandering jousts already are in full form throughout these not so United States. If the past is any guide, the result will be more safe legislative seats for each party. And in these gerrymandering games, the majority of newly created districts will be red in color due to the greater number of state houses under Republican control.

According to Pew Research, among the 35 states in which the legislature draws district lines, 20 states are controlled by Republicans versus 11 for Democrats.That means a likely shift to a Republican controlled House without any change in voter behavior.

What could be more anti-democratic than that?

This issue of The Purple Principle in Print explores the unfortunate aspect of American governance known as gerrymandering. In our polarized age, this process begets not only more safe seats and uncontested general elections but more legislative polarization, government gridlock, and, very likely, voter frustration and disillusionment as well.

Particularly egregious are the cases in which state legislators currently gerrymander against the demonstrated will of voters based on past referendums.

Missouri, for example. Turning back their 2018 referendum result, Missouri voters in 2020 reverted to a partisan redistricting process even before an independent redistricting process was completed, according to The Associated Press.

Ohio is another case in point. As reported by the Washington Post, the Ohio Republican Party has engaged in a “deeply cynical” gerrymander of the state. This has occurred against the backdrop of a 2018 constitutional amendment approved by voters of the state (nearly 75%!) which requires a more transparent redistricting process for Congressional seats through an independent bipartisan commission should the legislature fail to adopt maps with a 60% vote threshold (including 50% of each party). The GOP gerrymander is most apparent for the state legislative map against the spirit of a 2015 Ohio ballot initiative supported by 71% of voters. “All About Redistricting,” hosted by the Loyola Law School, has a thorough overview of the process.

Meanwhile, Democrats in New York, as reported by The Atlantic, are working to offset House losses expected elsewhere in the country through aggressive gerrymandering in the deep blue Empire State. Ultimately, the situation in New York means Republicans may lose up to five seats despite having a “bipartisan” redistricting commission. But divided between Democrats and Republicans, and without independent members, this commission deadlocked, thus throwing redistricting powers back to the legislature.

In divided Wisconsin a different type of battle takes place. Wisconsin Governor Tony Evers (D) and Attorney General Josh Kaul (D) have intervened in a federal lawsuit regarding the state’s redistricting process, according to The Hill. Wisconsin’s maps are currently among the most gerrymandered in the US. Republicans have won about half the vote statewide for the legislature yet control 61 of 99 seats in the Assembly after the most recent popular vote. However, the contest between Governor Evers and Wisconsin Assembly Speaker Robin Vos (R) means that new maps will likely strike a different balance, depending on court rulings.

Terms & Techniques

Gerrymandering is a term often thrown about but obscure and unusual in origin. The coinage dates back to 1812 when Massachusetts Governor Elbridge Gerry established an odd-shaped Congressional district. It was redrawn by political cartoonists into a salamander-type creature, thus spawning “gerrymander” (according to author Matthew T. Rosenberg in The Handy Geography Answer Book, 2004). But the practice of gerrymandering in the US predates the American Revolution and was commonly practiced in assemblies both in the US and the UK (where there is periodic “boundary review” of districts).

ProPublica has an in-depth dictionary of redistricting terms of which “cracking and packing” are the most commonly practiced—and crackticed.

Gerrymandering tactics have long had racial objectives. The 1965 Voting Rights Act banned both cracking and packing with respect to race, sometimes called “bleaching.” The Voting Rights Act was an important instrument to reduce race-based gerrymandering but the protections of the Voting Rights Act have been weakened in recent years by the US Supreme Court.

Technology and Gerrymandering

Today, big data has helped make gerrymandering more precise than ever before. In her dissenting opinion to the 2019 Supreme Court decision sending all gerrymandering disputes back to the states, Justice Elena Kagan warned that, when applied to gerrymandering, big data in for the form of AI (artificial intelligence) algorithms could seriously curb the natural ebb and flow of a democratic system.

On the other hand, AI tools can also help to expose the partisan intentions of gerrymandering and present a technical solution—assuming enough state-level party leaders could agree to a neutral digital arbiter. The power of artificial intelligence also makes it easier to uncover practices that lead to gerrymandering. As noted in Wired, the same technology that leads to precise gerrymandering can illustrate areas that are disproportionately represented or underrepresented, thus informing litigation and adjudication of redistricting disputes.

Highlights & Insights from

The Purple Principle

“…[T]he Republican legislature did not like it because it was going to take power away from them to draw these lines in 2021. So they did something very clever, which is they came up with an initiative of their own, which qualified for the ballot. And what it claimed is that it would improve the independent commission. Now in the details it significantly weakened it, gave the legislature the right to override it. It essentially gutted the independent commission that the voters had approved.”

“It’s all about the way we handle elections in this country. One of the questions I get asked most often when I speak around the country about these issues is, why is there so much partisanship in Washington? We don’t see that in our neighborhood. Why is that what we’re getting in Congress? Well, the answer is because we’re electing partisans. We have a system that is designed to elect and protect people on the political extreme, on the fringe. And that is because of what happens in our primary process.”

“One of the scary things going on here is you’ve got a lot of different forces at work. Anyone who’s been watching TV for more than 15 years knows that’s new, the rise of television news, where you pick your ideology; the rise of social media, where not only are you hearing the echo chamber. But also think about something like gerrymandering. Now, big data allows us to gerrymander better than we used to, which means more safe seats, which means the primaries matter more. They’re more expensive races. Who do you get the money from? The people who are the most extreme. Every single force that is going on is pushing us apart.”

Gerrymandering and Polarization

Another unfortunate result of gerrymandering is the creation of safe districts that go uncontested in general elections, making party controlled primaries the contests that count. In 2020, for example, 27 seats in the US House of Representatives went wholly uncontested in the general election.

The problem is even more acute for state and local elections. In 2020, the average percentage of seats at the state-level that went uncontested was 30%. On the low end were Hawaii and Oklahoma with no uncontested seats; on the high end, Massachusetts with 75% uncontested and Mississippi with a remarkable 100% of state legislative seats uncontested in the general election. In other words, subdivided to partisan perfection. See Ballotpedia for these and other state seats.

Nevertheless, some analysts have downplayed the contribution of gerrymandering to polarization in the following way:

Gerrymandering affects the U.S House but not the US Senate. Yet the Senate is also polarized. Ergo, gerrymandering cannot be a major factor.

Is the US Senate as polarized as the House? Historic, if not existential, votes on 2020 election certification and the post-insurrection Trump impeachment suggest not. As several TPP guests have stated, the fundamental political divide in the US today may not be the traditional left vs right disagreement on size and scope of government but rather democracy vs authoritarianism as our form of government. In that regard, House Republicans have demonstrated greater willingness to tolerate authoritarian drift than their Republican Senate counterparts.

Independent Commissions—and Independents on Commissions

Because gerrymandering is not explicitly unconstitutional, there are high hurdles to ending it at the federal level, at least judicially. Legislation faces high hurdles as well. The For The People Act is a proposed federal bill that would significantly diminish partisan gerrymandering by requiring districts be drawn by independent commissions. However, the bill has not yet received a vote. And if passed it would almost certainly be contested legally.

Aside from litigation, the most common state-level remedy for gerrymandering is independent redistricting commissions that fully remove cartographic power from state legislatures. Currently, there are 21 states with non-partisan or bipartisan redistricting commissions. But only 13 of these have exclusive powers that cannot be overridden by the state legislature. Independent or unaffiliated voter-citizens have an important role to play on such commissions.

The Virginia Redistricting Commission was approved by voters on November 3, 2021. The group has 16 commissioners, eight of whom are partisans from the state legislatures and a further eight who are citizens. The commission started work in a partisan manner which has led to two competing maps, and will likely lead to litigation.

The Arizona Independent Redistricting Commission was approved through Proposition 106 in November, 2000. The commission is composed of two Republicans, two Democrats, and an independent chairperson. The relatively small size and partisan control of the group make this a relatively weak commission in comparative terms. For example, there is concern that proposed maps will not properly account for Latinos and Native Americans in Arizona.

The New Mexico Citizens Redistricting Committee is tasked with the creation of state and congressional maps. It was formed in 2021 and composed of seven members. Four partisan members are appointed by the party leadership in each chamber of the New Mexico Legislature. But the State Ethics Commission appoints the Chair of the Committee, who must be a retired Justice of the New Mexico Supreme Court or a retired Judge of the New Mexico Court of Appeals, as well two members who are ***not*** members of either of the two largest political parties in the state.

The Ball’s in Your State Court: Coming Legal Battles

In the 2019 case Rucho v. Common Cause (the case Kagan described above), the Supreme Court ruled that partisan intent is a valid intention for redistricting and thus not a question for the US Supreme Court. The American Bar Association provides an overview of this result, noting that partisan gerrymandering is now in “open season” after the decision and the only current remedies for gerrymandering are through state-level litigation or the creation of independent commissions via referendum or legislation.

Thus the state level legal battles have begun:

In Alabama, a lawsuit was filed on September 28, 2021, arguing that current maps are racially gerrymandered.
On September 23, 2021, the ACLU of Ohio announced it had filed suit against the GOP for violating both the “letter and spirit” of the Ohio law passed by voters.
In Wisconsin, a new lawsuit was filed arguing that submitted maps were unconstitutional. This lawsuit, brought by conservatives, is joined by a lawsuit from Wisconsin Democrats, as well as a third suit filed by voting rights advocates in federal court.
Many other state level lawsuits will be filed as the redistricting process continues

What We’re Reading

Studies Worth Studying: The Efficiency Gap and Party Asymmetries

“Partisan Gerrymandering and the Efficiency Gap” was written by Nicholas Stephanopolous and Erin McGhee, published in the University of Chicago Law Review. This study describes a novel way to measure partisan gerrymandering through what is known as the “efficiency gap.” The efficiency gap is an empirical way to measure the extent to which parties are symmetrical in terms of the strength of votes cast. It is simple in terms of the math: number of votes cast for a party divided by the number of total votes cast in a particular election. The paper also does some historical analysis to show how various elections could be assessed through this efficiency gap.

According to a study by researchers at the University of Maryland, there is a measurable effect demonstrating the advantage of Republican gerrymandering, amounting to an 8.2% increase in the share of Republican Congressional seats. There was no such effect for Democrats.The study has some intensive math, but the authors walk the reader through their analysis. A similar study by the Associated Press using the efficiency gap shows that Republicans, post-2010, gave themselves more of an advantage then either of the two parties have had in the past 50 years.