The United States Census happens every 10 years, with the next one occurring in 2020. New population totals will be tallied, demographic statistics will be adjusted, and population shifts will be studied. This leads to redistricting, where congressional and state district lines get redrawn based on census statistics.
Redistricting matters a great deal in politics. For one thing, electoral college votes for each state will be adjusted, and some states stand to gain from that. Florida, for example, has recently become the third-most populous state in the country, surpassing New York. Some political observers have speculated that will result in a couple extra electoral votes for Florida from its current total of 29, already one of the highest Electoral College values. The overall number of Electoral College votes won’t change, but the number of votes in some states will rise and fall. Although it won’t be a huge change, it still matters.
But perhaps even more importantly, state and congressional district lines get redrawn. And in most states, state legislatures redraw these lines. This adds a great deal more urgency to Republicans and Democrats to win upcoming state elections to have more leverage in redistricting.
What is Gerrymandering?
Deliberately redrawing district lines to politically benefit one side is called gerrymandering. The term’s namesake is Elbridge Gerry, one of the Founding Fathers of the United States. When he was governor of Massachusetts, the two major parties were the Federalists and the Democratic-Republicans. Gerry, a Democratic-Republican, signed a bill to allow misshapen new drawings of state senate districts to go into effect, benefiting the Democratic-Republicans at the expense of the Federalists in the state.¹
There are certain legal barriers now to how districts are redrawn. Of course, this doesn’t prevent gerrymandering from happening (and, as I will talk about later in this post, gerrymandering isn’t exactly illegal across the board). Instances of gerrymandering vary in how obvious and effective they are, but there are two basic types. “Packing” is the practice of reducing one party’s voting power by concentrating as many of their voters into a district as possible, thereby limiting their effectiveness in other districts. “Cracking” is the practice of spreading out one party’s voters as much as possible to dilute their influence in all of them.
Gerrymandering can’t affect the number of Electoral College votes (with the possible exceptions of Nebraska and Maine²). Those values stay the same regardless of how districts are drawn because the population total of a state stays the same.
What it does greatly affect is future congressional and state legislative elections. How lines are drawn will inherently give more of an advantage to one party over another (at least relatively to previous district lines) even if gerrymandering isn’t employed. When districts are gerrymandered, this effect is amplified even more so, making it easier for one party to win future elections. And with state legislatures taking the lead in redistricting for most states, the possibility of gerrymandering always lurks. It won’t always happen, but parties also may not always get caught or they will only get caught years later.
Gerrymandering Supreme Court Cases
There are far too many instances of gerrymandering in U.S. history to recount here, even notable ones. Still, here are a couple of major historical U.S. Supreme Court cases pertaining to the practice³.
- Baker vs. Carr (1962): This was the first time that federal courts stepped into the state legislative redistricting process. Leading up to the case, the Tennessee State Legislature had not carried out its redistricting duties, failing to reflect that sharp rise in population of urban areas compared to rural areas. The Supreme Court ruled that this was a violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
- Shaw vs. Reno (1993): The Supreme Court ruled that legislative and congressional districts violate Equal Protection Clause of the 14th Amendment if they cannot be explained on grounds other than race. Many of these districts tend to have very unusual shapes.
- Thornburg vs. Gingles (1986): Here the Supreme Court “established that where racially polarized voting is present, it is illegal to dilute minority residents’ voting power, either intentionally or unintentionally.”⁴
Other gerrymandering cases were brought before the Supreme Court this year as well. Rulings that the Court administered in June for maps in Wisconsin and Maryland (one brought by Republicans, the other by Democrats) left those situations unresolved, as the Court was reluctant to get involved in the matter.⁵
Partisan vs. Racial Gerrymandering
Part of the issue with court cases involving gerrymandering is that not every type of gerrymandering is explicitly illegal. It may come as a surprise that partisan gerrymandering is such a case. The United States Supreme Court, as seen above, can be reluctant to rule on such cases. But courts in other instances have ruled partisan gerrymandering illegal.⁶ While it may seem obvious to codify what entails partisan gerrymandering, implementing reforms to address it is a lot easier said than done. There isn’t even consensus for what exactly constitutes partisan gerrymandering.
What about racial gerrymandering? It has already been clearly ruled to be unconstitutional if it is the sole determinant in newly drawn maps. But even what exactly constitutes racial gerrymandering is a debate as well.
There is also debate as to whether racial gerrymandering can actually be beneficial. It may seem especially surprising that some of this debate is had within black communities. Some argue “packing” black voters into a district gives them a better chance at sending someone that represents their communities into office by creating what’s called a majority-minority district (where a minority group represents the largest share of a district), instead of spreading them out and diluting their influence too much. Others argue that it hinders them from having a chance at a larger share of representatives in office to better reflect the overall population. The debate goes deeper than that, but these are a couple of general stances on the issue.
Now we get to the actual process for redistricting.
How Are District Lines Redrawn?
As aforementioned, most states have their state legislatures create new boundaries for congressional and state districts. But some of these states’ legislatures only take charge over one of these types of district lines and not the other (i.e., congressional but not state, or state but not congressional).
And even for the times when state legislatures have the power to redraw, their processes aren’t all the same. Some of them have sole power over redistricting, but some of the states have a commission to assist in the process. There are two types of such commissions⁷:
- Advisory commissions: These commissions advise the state legislature about where to draw the lines. State legislatures are not bound by their advice but still tend to listen to them since legislatures often have a role in picking commission members.
- Backup commissions: These commissions craft district lines if the state legislatures fail to pass a plan by a certain deadline. Whereas advisory commissions assist in drawing the lines beforehand, backup commissions’ work come in later on.
In states where the state legislatures don’t take charge of redrawing lines, there are two types of commissions that have this responsibility.
- Politician commissions: As can be gleaned from the name, these commissions are made up of politicians, and elected officials can serve on them.
- Independent commissions: Such commissions do not have legislators or public officials, and direct participation by elected officials is very limited. Members of these commissions are also banned from running for office in these districts for a certain period of time after these districts are redrawn.
Who draws the congressional lines?: Note that seven states (Alaska, Delaware, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming) do not apply here because they only have one congressional district, so there is nothing to redraw.⁸
- 37 states use state legislatures
- 2 states use a politician commission: Hawaii and New Jersey
- 4 states use an independent commission: Arizona, California, Idaho, and New Jersey
Who draws the state lines?: The above caveat for congressional districts does not apply here, as all state legislatures have many more than just one district. While the same number of states use state legislatures here as they do with drawing congressional lines, it is not exactly the same set of states as for congressional redistricting.⁸
- 37 states use state legislatures
- 7 states use a politician commission: Arkansas, Colorado, Hawaii, Missouri, New Jersey, Ohio, and Pennsylvania
- 6 states use an independent commission: Alaska, Arizona, California, Idaho, Montana, and Washington
States with different procedures for redrawing districts: With the exception of those states that only have one congressional district, five states draw their congressional and state lines through different methods. Arkansas, Colorado, Missouri, Ohio, and Pennsylvania all use state legislatures (congressional) and politician commissions (state).
Will There Be Change in Redistricting Processes?
In some ways, it is hard to see any significant change in redistricting procedures happen anytime soon. But there have certainly been proposals. Governor Larry Hogan of Maryland has pushed multiple times for a nonpartisan redistricting commission to redraw Maryland’s congressional district lines.⁹ As of right now, the Maryland State Legislature handles redistricting for both that state’s congressional and state district lines.
There are also citizen efforts leading their own pushes for reform. Citizens in some states will be at an easier starting point than others, as some states provide for a ballot initiative process where citizens can propose a measure to be voted on by the public or sent directly to the legislature for them to decide on. In other states, only the legislature can amend state constitutions or pass laws, so citizens must convince them to do so instead of voting or sending a measure to them.
Attempts at reform have been very popular this year. Between the start of this year and the end of February, there had already been over 60 bills and initiatives introduced in at least 18 states. That was the same amount of states that had considered such measures last year.¹⁰ Below are example of states where there are citizen efforts being led for redistricting reform:¹¹
- Ballot initiatives that are ongoing include Arkansas, Michigan, Ohio, Oklahoma, and Utah. Initiatives include instituting independent citizens’ commissions and mandating the use of a new statistical model.
- Legislative efforts that are ongoing include Colorado, Ohio, Pennsylvania, and Virginia. Efforts include creating a commission with equal numbers of Democrats, Republicans, and unaffiliated voters.
We will have to wait and see how successful they are, but it will undoubtedly be interesting to see how these proposals play out.
- Erick Trickey. Smithsonian Magazine. “Where Did the Term ‘Gerrymandering’ Come From?” July 20, 2017.
- The reason I use these as exceptions are because Nebraska and Maine use a split electoral vote system. The popular vote winner in these states win two electoral votes, but an extra electoral vote is awarded to candidates for each congressional district in those states that they win (two of these in Maine, three of these in Nebraska).
- The following Supreme Court cases and more comes from the following source: National Conference of State Legislatures. “Redistricting and the Supreme Court: the Most Significant Cases.” http://www.ncsl.org/research/redistricting/redistricting-and-the-supreme-court-the-most-significant-cases.aspx. July 19, 2018.
- Galen Druke. FiveThirtyEight. “Is Gerrymandering the Best Way to Make Sure Black Voters are Represented?” December 14, 2017.
- Josh Gerstein and Steven Shepard. Politico. “Supreme Court punts on partisan gerrymandering cases.” https://www.politico.com/story/2018/06/18/supreme-partisan-gerrymandering-cases-650879. June 18, 2018.
- Simone Pathé. Roll Call. “Court Strikes Down North Carolina’s Congressional Map as a Partisan Gerrymander.” https://www.rollcall.com/news/politics/hold-breaking-news-5-hed. August 27, 2018.
- The descriptions of advisory, backup, politician, and independent commissions come from the following source: All About Redistricting. “Who draws the lines?” http://redistricting.lls.edu/who.php. Accessed August 23, 2018.
- Ballotpedia. “State-by-state redistricting procedures.” https://ballotpedia.org/State-by-state_redistricting_procedures. Accessed August 23, 2018.
- Associated Press. “Maryland Governor to Push Redistricting Reform Bill Again.” https://www.usnews.com/news/best-states/arizona/articles/2018-02-14/legislative-leaders-push-redistricting-commission-changes. February 14, 2018.
- Associated Press. “At least 18 states are looking into changes in the way they draw congressional and legislative district.” http://www.latimes.com/nation/la-na-states-redistricting-20180225-story.html. February 25, 2018.
- The information that follows comes from the following source: Alexis Farmer and Annie Lo. Brennan Center for Justice. https://www.brennancenter.org/analysis/current-citizen-efforts-reform-redistricting. August 2, 2018.