Let’s Talk About Gerrymandering

By Emma Breuer

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“Courts ought not to enter this political thicket.”

–  Justice Felix Frankfurter, Colegrove v. Green (1946)

Partisan gerrymandering is concerned with the redrawing of district lines in order to either split or consolidate voters in favor of whichever party holds the majority in state legislatures. “The actual process of political gerrymandering is done by placing voters in districts based on their political registration, voting history, turnout rates, and various other demographic factors that indicate how they might vote” (“Basics”). 

Who Draws the Lines?

The redrawing of state legislative and congressional districts is reserved for the respective state legislatures and happens once every decade following the constitutionally mandated Census. In most states, redistricting legislation is passed similarly to other legislation and must be approved by a majority vote from each legislative chamber: the lower state house and upper state house (Levitt 2020). Some states task their respective redistricting commissions with drawing the new lines. Each state varies in deadlines for redistricting plans, commissions, political involvement, and office holding, just to name a few.

Gerrymandering and the Supreme Court

Partisan gerrymandering has a long history and has been a heated subject of deliberation in both local courts and the Supreme Court. “In previous decades, it has invalidated redistricting maps and established rules to protect the voting rights of voters in general (in its equal population cases), certain ethnic and racial minorities (to enforce the Voting Rights Act and other provisions), and to protect voters from racially segregated districts (unconstitutional racial gerrymandering under the 14th Amendment)” (“Basics”). Understanding the history and precedent set by the Supreme Court will help to gain a comprehensive understanding of the legality of partisan gerrymandering. 

In Gaffney v. Cummings (1973) the district court rejected Connecticut’s apportionment plan because of its unconstitutional partisan structuring resulting in extreme population variance in congressional redistricting. The final decision of the Supreme Court held that “Minor deviations from mathematical equality among state legislative districts do not make out a prima facie case of invidious discrimination under the Equal Protection Clause of the Fourteenth Amendment…A ‘political fairness principle’ that achieves a rough approximation of the statewide political strength of the two major parties does not violate the Equal Protection Clause” (“Gaffney v. Cummings”). 

In Shaw v. Reno (1993), the Supreme Court determined that North Carolina’s reapportionment scheme, in which they aimed to create one very concentrated, small black-majority voting district, was unconstitutional. The Attorney General rejected the first reapportionment plan that packed minority residents into one district. North Carolina is covered by VRA (Voting Rights Act) preclearance, meaning that its state jurisdiction is barred from revising voting practices without approval from the Attorney General, which it promptly violated as it attempted to use the map. The new map that was drawn up created two majority-minority districts with one being especially gerrymandered. The 5 state residents that questioned the constitutionality of the plan alleged that the goal of drawing that district was to ensure more black representatives from North Carolina. The final decision concluded that while the reapportionment plan appeared superficially racially impartial, the districts drawn were covertly racially segregated, violating the 15th Amendment. Shaw v. Reno (1993) set a precedent for the unconstitutionality of racial gerrymandering. 

In Vieth v. Jubelirer (2003), the Supreme Court echoed a similar decision to that of Shaw v. Reno (1993)—the Supreme Court did not reserve the rights or powers to rule on the constitutionality of partisan gerrymandering. Unique to this case, however, were the Democratic voters who attempted to sue in federal court based on the notion that the Republican-majority state legislature in Pennsylvania “…had violated the one-person, one-vote principle of Article 1, Section 2 of the Constitution…” (Scalia 2003). The reapportionment plan clearly advantaged Republican representatives in Pennsylvania and created an unequal division of votes per district which deemed such a plan unconstitutional. A more pressing conclusion that came from this case, though, was the decision by Justice Scalia that the question of whether or not partisan gerrymandering was up to the discretion of state or federal courts had been answered. Such decisions lay solely in the hands of state legislatures. 

In 2019, the Rucho v. Common Cause case reinforced an important precedent for partisan gerrymandering’s place in courts. Head of the North Carolina Senate Redistricting Committee, Robert Rucho (R), appealed to the Supreme Court regarding the district court’s rejection of North Carolina’s 2016 congressional map based on the map’s clear partisan gerrymandering. The opinion of the Court held that “partisan gerrymandering claims are not justiciable because they present a political question beyond the reach of the federal courts” (“Rucho v. Common Cause”). This decision lends itself to understanding how partisan gerrymandering plays a role in modern United States politics and government. By deciding that the constitutionality of partisan-based gerrymandering is not a matter that can be decided by federal courts, as this would impede state governments’ rights, the Supreme Court asserts that decisions thereof were up to the state legislatures, thus removing any sort of check on the legislatures’ power by the judicial branch.

Partisan Gerrymandering in the Upcoming Elections

On November 8, 2022, the United States midterm elections will be held based on district lines drawn following the 2020 Census. President Joe Biden and Vice President Kamala Harris are both registered Democrats. Democrats currently hold the majority in both the House of Representatives and the Senate. Vice President Harris, in her capacity as President of the Senate, has the power to vote in any instance when breaking a tie is necessary, which gives the Democrats the upper hand in legislation that cannot be filibustered. If able to successfully redraw district lines in their favor, especially considering how small the House majority is, Democrats may be able to secure the House majority  Insofar as the upcoming elections are concerned, partisan gerrymandering could very well prove to be a serious barrier between Republicans and Democrats gaining the majority.

In late summer 2022, Democrats seemed optimistic about the upcoming election. However, such optimism has dwindled as recently as October 18, 2022, when President Biden’s approval rating sat at 40% (Lange 2022). Of the total 435 House districts, 220 of them are leaning towards Republican representation–giving Republicans a narrow advantage. 

When considering how partisan gerrymandering might affect the upcoming elections, looking at voter behavior in the median district illuminates some promise for Democrats to maintain the House majority. Of the 435 congressional districts, 215 of them lean towards Democrats, meanwhile 220 districts lean towards Republicans, meaning that Democrats will need to secure votes in an additional three districts if they hope to maintain the House (Cohn 2022). Insofar as the Senate is concerned, it is unlikely that Democrats will observe a win in both the House and the Senate, as gerrymandering has an ineffective impact in the Senate; however, it is not impossible in the House. 

In a simulation done by FiveThirtyEight, ten congressional districts were decided to be the most likely to determine which party controls the House. The results show that nine out of the ten districts show Republican-tilting, despite Republicans’ average predicted success rate in these districts only being 60/100. These findings further portend that “The 2021-22 congressional redistricting process preserved a largely Republican-leaning status quo,” which does not appear to be too promising of a Democrat lead (Rakich 2022). Considering the propagation of Republican-leaning status quo in district line redrawing, a Democratic edge in this upcoming election does not seem likely. In fact, even less promising are the right-leaning results of the 10  “tipping-point districts,” of which 7 are predicted to vote Republican.  

A Final Note

All things considered, which party will maintain the majority in the House seems to be up in the air, although the Republicans look likely to swing the majority. Despite post-2020 congressional redistricting being in favor of Republicans and a declining approval rating of President Biden, a direct assertion of who will carry this midterm election seems to rest closer to election day. The influence and power of partisan gerrymandering in elections is palpable in our current political climate as well as historically; but what is most important to keep in mind when considering how redistricting affects elections is population density and other redistricting metrics employed to generate the most promising outcome for each respective party. Partisan gerrymandering has proven capable of giving certain parties a leg-up in Congress, but perhaps in light of this election, Americans may witness a shocking turn of events at the polls this year. The political agendas of Democrats and Republicans, increased voter consciousness, and the recent overturning of Roe v. Wade may allow for an unpredictable voter turnout. Failed attempts by the Democrats following the 2020 Census to successfully gerrymander the state of New York seem to imply that they might have to get creative this upcoming election and explore strategies outside of partisan gerrymandering.

References

“Basics: Partisan Gerrymandering.” Redistricting Online. https://redistrictingonline.org/basics-gerrymandering/basics-partisangerrymandering/.

Campisi, Marion, Tommy Ratliff, Stephanie Somersille, and Ellen Veomett. 2022. “Will this year’s gerrymandering mean Democrats lose control of the House?” The Washington Post, September 22. www.washingtonpost.com/politics/2022/09/22/gerrymandering-midterms-democrats-republicans/.

Cohn, Nate. 2022. “Gerrymandering Isn’t Giving Republicans the Advantage You Might Expect.” The New York Times, September 30. https://www.nytimes.com/2022/09/30/upshot/midterms-gerrymandering-republicans.html.

“Gaffney v. Cummings.” FindLaw Cases and Codes. caselaw.findlaw.com/us-supreme-court/412/735.html.

Lange, Jason. 2022. “Biden approval polling tracker.” Reuters Graphics, October 18. https://graphics.reuters.com/USA-BIDEN/POLL/nmopagnqapa/.

Levitt, Justin. 2020. “Who draws the lines?” All About Redistricting. redistricting.lls.edu/redistricting-101/who-draws-the-lines/.

O’Connor, Sandra D. 1993. “Shaw v. Reno.” Oyez. www.oyez.org/cases/1992/92-357.

Rakich, Nathaniel. 2022. “The 10 Districts Most Likely To Decide Control Of The House.” FiveThirtyEight, October 17. fivethirtyeight.com/features/house-tipping-point-districts/.

“Rucho v. Common Cause.” Oyez. www.oyez.org/cases/2018/18-422.

Scalia, Antonin. 2003. “Vieth v. Jubelirer.” Oyez. www.oyez.org/cases/2003/02-1580.

“U.S. Senate: About the Senate and the Constitution.” Senate.gov. www.senate.gov/about/origins-foundations/senate-and-constitution.htm.

“What are midterm elections, and why are they important?” 2022. U.S. Embassy and Consulates in Italy. it.usembassy.gov/what-are-midterm-elections-and-why-are-they-important/.