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Is Partisan Gerrymandering Unconstitutional?

A quick look at the Supreme Court’s divided record on redistricting for political gain.

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In a recent interview, former Supreme Court Justice John Paul Stevens called Maryland's current redistricting plan, which draws districts to benefit the state's Democrats, "outrageously unconstitutional."

And that's not just because the Democratic plan divides a district with a majority of minority voters into several mostly white districts, an element of the plan that may face a legal challenge under the Voting Rights Act. It's because, in Stevens' judgment, drawing district lines to benefit one party violates the right of citizens to equal protection under the law.

"The government cannot gerrymander for the purpose of helping the majority party; the government should be redistricting for the purpose of creating appropriate legislative districts," Stevens said in a SCOTUSblog interview.

Of course, politicians have been drawing district lines for their own advantage since the days of the founding fathers, when Patrick Henry gerrymandered a Virginia district to try to keep James Madison out of Congress.

But is this kind of gerrymandering illegal?

While the Supreme Court has consistently found certain types of racial gerrymandering to be illegal, it has a much more ambiguous record on partisan gerrymanders in which voters are grouped or split based not on race but on their political orientation.

In his time on the Supreme Court, Stevens consistently opposed so-called partisan gerrymandering, but he was often in the minority.

While the Supreme Court ruled in 1986 that partisan gerrymandering was unconstitutional and could be challenged in court, it set such a high standard of proof that it made legal challenges of such districts extremely difficult. Since then, the Court has remained divided on whether there is any viable way to set a judicial standard for what makes a given district an illegal gerrymander.

Stevens has long argued that some kind of standard — based, to begin with, on the principles of compactness and contiguity — is possible.

"This is one of my major disappointments in my entire career: that I was so totally unsuccessful in persuading the Court on something so obviously correct," Stevens said.

As we explained in an investigation of special interests and redistricting, and in our latest music video, the ways that politicians manipulate districts are so well-known that political insiders have a special gerrymandering vocabulary: Politicians can "pack" certain communities into a single district, "bleach" out minorities, "crack" troublesome voting blocks between different districts, "kidnap" a troublesome representative by putting his or her house in a separate district from his or her former constituents, or "hijack" a district by redrawing the lines to pit two incumbents from the same party against each other. (For more details on these tactics, check out our Devil's Dictionary of Redistricting.)

While Stevens has long judged these kinds of tactics unconstitutional, other justices have been more skeptical. Justice Antonin Scalia has argued that the "fairness" of districts is not "a judicially manageable standard," and that there is no constitutionally discernable basis for deciding whether a district is an illegal partisan gerrymander.

It's worth noting that even Stevens' suggestion that courts base their evaluation of districts on the traditional principles of "compactness and contiguity" is problematic. While compact and contiguous districts may look good on a map, they aren't necessarily fair.

These seemingly "neutral" standards "really are incredibly arbitrary," said Keesha Gaskins, senior counsel at the Brennan Center for Justice, a nonpartisan group. The shape of a district may be easy to judge at a glance, but odd-looking districts may simply reflect the real shape of a community.

And judging districts to be "illegal gerrymanders" just because they're filled with voters who support one party would also be a mistake, Gaskins said. "It can be that communities of interest line up along partisan lines."

Despite the difficulty, Gaskins said, "we all want to see a workable standard under which these claims can really be adjudicated."

So far, this "workable standard" has proved elusive.

While the Supreme Court opened the door to partisan gerrymandering challenges in 1986, it set a high bar: Plaintiffs would have to prove that the shape of a district demonstrated "both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group."

But this standard proved nearly impossible to meet in practice. As Whitney Eaton noted in a University of Richmond Law Review article:

The twenty partisan gerrymandering cases that followed Bandemer resulted in the federal courts denying relief in each and every one, leaving commentators to conclude that its "standards are fundamentally unworkable and incorporate such ambiguous and unclear commands as to be unfit for any manageable form of judicial application."

In a 2004 partisan gerrymandering case, the Court deadlocked on the question of whether partisan gerrymandering, given the difficulty of establishing a standard, should be subject to judicial review. Four justices argued yes — but proposed very different standards for how to tell whether a district has been gerrymandered. Four justices argued no, and one, Anthony Kennedy, argued that while no standard for judging what makes a district "fair" had emerged yet, it might be possible to find one.

In the Supreme Court's most recent consideration of partisan gerrymandering, in 2006, the confusion persisted.

While defining partisan gerrymandering has always been difficult, the Brennan Center's Gaskins said increasingly sophisticated mapping software makes the issue more problematic — and more pressing.

"It is a real challenge, as technology becomes more and more precise, whether or not these blunt legal responses are going to be able to adequately address these measures," she said. "Now you can buy data from any marketing company and draw districts that are highly protective or highly exclusive, and it changes the landscape in a way that has not been contemplated by the courts."

Gaskins said she expects to see the Court return to the question of redistricting in the next year.

"There does have to be a line where partisan gerrymandering goes too far," she said.

All gerrymandering should be illegal .. WITHOUT EXCEPTION! And yes, that means blacks and latinos SHOULD NOT have districts carved out for them if it means drawing a district that looks like a snake after eating a dozen eggs (i.e. IL-4)

Barry Schmittou

Nov. 7, 2011, 5:28 p.m.

Gerrymandering is another example of complex and intricate destruction of justice that is happening in every nation on earth. I believe the corruption is so extensive faith in God is our only hope.

God does want us to stand up to the injustices as seen in Isaiah 1:17 :

“Learn to do good; seek justice, correct oppression; bring justice to the fatherless, plead the widow’s cause.”

Walter D. Shutter, Jr.

Nov. 7, 2011, 6:14 p.m.

For those of you that think that a solution to gerrymandering is possible under existing law, I would suggest you reread the statement of Keesha Gaskins, senior counsel at the Brennan Center for Justice, a NON-PARTISAN!! ??? group.  Her argument is essentially this:  Gerrymandering, if it serves to empower the “right people”, can be a good thing. What a crock!

Article 4, Section 4 of the Constitution says in part,“The United States shall guarantee to every State in this Union a Republican Form of Government…” Is this enough constitutional authority for the Congress to legislate?  Probably not.  We need a constitutional amendment mandating statewide at large cumulative voting to solve the problem.

Barry Schmittou

Nov. 7, 2011, 9:05 p.m.

ProPublica’s Ms. Beckett wrote this in another article about gerrymandering :

“When minority voters are “packed” into one district, surrounding districts having fewer minorities and a larger percentage of white voters—that’s “bleaching.”

While that may give the minorities one district, I think I’m correct in saying the politicians use that to unfairly assure that the multiple districts with more whites will elect the candidates the minorities do not support. That seems unfair to the minorities. I believe the Republicans have done that often.

Ms. Beckett’s new article indicates the Democrats may be equally proficient at gerrymandering.

I think I found links to an excellent PBS film description and video regarding manipulation of voting districts.

The show I saw in 2004 indicated Texas recreated districts in a way that seemed very unfair. The film description makes me think this is the right film.

Please paste :

pbs.org/pov/lastmanstanding/special_toobin.php

For anyone really interested in redistricting I would recommend the video which can be purchased by pasting :

shoppbs.org/product/index.jsp?productId=3262773

The video was so profound I remembered seeing it even though it was seven years ago.

I am a Christian, and the PBS Show I saw showed a young Republican candidate who really seemed to unfairly attempt to use Christianity for political gain. That reminds me of Bush and the majority of the Republican leaders. ( the Democrats are using Christianity more now too)

The whole Republican use of religion and the energy behind the speeches in the PBS show I saw seemed very fake. The whole election process seemed very deceptive.’‘

After 8 years of Cheney/Bush I was really hoping that Obama was genuine in his helping all and his belief in God,  but I am sorry to say that his actions make me wonder if he is really trying to do God’s will. Maybe he thinks he is; I’m still seeing a lot of lives destroyed by his Director’s protection of corporate crimes ( and Bush did the same )

I fail often, we all fail, but it is my understanding that we are supposed to try to do better and do God’s will. A Church sign said “Christians aren’t sinless but we should try to sin less” and I hope and pray that President Obama and I and all Christians will try to do that.

I was a Democrat all my life because I thought they helped the poor and those in need while the Republicans unjustly favored the rich, but now I believe both parties are controlled by the same corrupt influences and they are destroying our nation and world. I hope and pray that will change !!

Gerrymandering is an easy “hand-wringer” for people that don’t really understand or ever become really invovled in elections. A victory in politics should provide many advantages that your opponent, who lost the election, should not receive. One of the historic advantages is drawing the squiggly lines for districts. In states with huge majorities for a particular party, the lines are drawn to favor the incumbents. In toss-up states the lines are drawn with lots of back and forth. My advice to people who wring their hands about districts is to get off the computer and either run for office, donate to a candidate, volunteer for a candidate or petition your representative to help elect people who support your idea for redistricting. It’s politics, folks. Get out and win the voter over to your side.

I was linked to this article through the Orlando paper and would comment that gerrymandering is now clearly unconstitutional under the Florida constitution due to the recent “Fair Districts” amendments.

Practically speaking, there’s no way to actually prove intentional discrimination in redistricting.  So you know how you combat Gerrymandering?  By electing different representatives.

The problem with arguing against gerrymandering is that it assumes that the existing districts must be fair.  Modifying districts is going to always help one candidate or another, so if the state has already been “bleached,” isn’t undoing it gerrymandering?

Isn’t the issue here the fact that the districting plans revolve around candidates and parties rather than the people living between the lines and how clearly their diverse voices can be heard?  Seems like the focus should be on the extent to which demographic groups are seeing the candidates in office who they would vote for in the aggregate.  If a group dominates a district or is excluded from districts, then something is wrong, no matter who’s winning the elections.

Thanks to all of you for a thoughtful discussion.

Walter, as Fred notes, you might be interested to look at the case of Florida, which recently amended its state constitution to ban partisan gerrymandering. In 2010, 63 percent of Florida voters approved amendments 5 and 6, which read, in part, “districts or districting plans may not be drawn to favor or disfavor an incumbent or political party.”

Pitt and Jeff, both interesting perspectives.

John, you’re right to bring up the fact that existing districts are often the product of previous political manipulation, and the fact that “gerrymandering” is a problematic term. Its definition, at this point, is very broad—anyone who thinks a district has been inappropriately drawn will call it “gerrymandered.”

I believe it was in Ryan Lizza’s excellent article about Obama in the New Yorker a few years ago in which he described Obama being taken to a room in a secure office building in downtown Chicago after winning a State Senate seat.  The computer in that room was used to rearrange State Senate Districts, literally street by street, depending on who won an election.  The original argument about political parties - referred to as “factions” in the language of the 18th Century - occurred between John Adams and Thomas Jefferson.  Adams carefully explained the dangers inherent in political factions, and Jefferson took the opposite point of view and eventually prevailed.  And here we are, watching districts change street by street on a PC, all engineered by people who are not public employees with their own agendas and special interests.  Citizens United was simply the cherry on top of the sundae.

Why not move to a proportional representation system for the house and do away with districts all together?

The first solution to gerrymandering is to have a fitness measure for a proposed districting (e.g. the sum of the perimiters), and then to allow any individual or organisation to propose a districting, with the winner having the best fitness value.

The second solution is to have multi-member districts. Our communities are less and less defined by geography, so its not clear why we should continue to select our representatives based on arbitrary geographic areas. Multi-member districts will give citizens a greater chance of having a representative that actually represents them.

How would a multi-member district work?

Well, a multi-member district is a compromise between first-past-the-post single member districts and a state- or country-wide proportional representation system.

Lets say you have a district with 3 members, and you might have a field of 10 people standing for election. So you need a voting system that picks 3 of those 10 people as representatives. Simplest way is to let everyone vote for 3 candidates, and then pick the 3 with the most votes as the winners. There are more complex systems, including approval voting (thumbs up/down for each candidate), range voting (score 1-10 for each candidate), and ranked voting (rank the candidates in order of preference), and modifications including instant runoffs etc etc. Approval voting is considered by some as the simplest and fairest system.

Whether the size of a district is 3 or 5 or 7 or 10 members, and whatever the actual voting resolution mechanism, the main thing is that gerrymandering becomes more difficult, that is, it becomes more difficult to ensure a given result by the way you draw up the district.

The other advantage is that citizens have more choices, which results a greater chance of finding and electing a candidate that best represents them.

I hadnt realised it, but multimember districts are already used in some states. http://www.senate.leg.state.mn.us/departments/scr/redist/red2000/ch4multi.htm

Beverly Davis

Dec. 1, 2011, 2:08 a.m.

REDISTRICTING the “Iowa Way” - The Fairest and Best in the Country - No Powerful Politician is Exempt because the process is nonpartisan.

IN IOWA - The centerpiece of the redistricting provisions are the redistricting principles which specifically forbid the use of political affiliation, previous election results, the addresses of incumbents, or any demographic information other than population.

The redistricting process in Iowa is uniquely nonpartisan, at least for the first three proposed plans by the Legislative Services Bureau (LSB). The legislature has been quick to accept the LSB’s plans even when they have placed incumbent state legislative leaders and congressional members in very competitive districts.

The Iowa method of redistricting has not been significantly changed since 1980, but the 1980 reform bears mention, given that many reformers applaud Iowa’s districting model.

The legislature significantly reformed its legislative and congressional redistricting process after a court challenge in the 1970ís resulted in the state Supreme Court redrawing malapportioned legislative district lines.

The provisions in chapter 42 of the Iowa code detail a complete statutory process for the nonpartisan development of redistricting plans.

While the rest of the states continue to muck around with their highly politicized process of redistricting, the current Governor Terry Branstad, has approved the new redistricting for Congressional and state legislative districts based on population where no cities and towns can be divided.

This article is part of an ongoing investigation:
Redistricting

Redistricting: How Powerful Interests Are Drawing You Out of a Vote

How secret money and power interests are drawing you out of a vote.

The Story So Far

Redistricting should be a way of ensuring your vote counts. If all districts have roughly the same number of people in them and are drawn to respect natural communities—neighborhoods where people share a heritage, work in the same industry, or just generally feel tied to their neighbors—voters have a chance to be represented by politicians who represent their areas’ collective interests.

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