Gerrymandering is the process of drawing political boundaries to favor one political party over others in an electoral system. In political systems where representatives are assigned based on geography, gerrymandering is an effective way to influence the outcome of elections. By drawing the boundaries so that an opponent has overwhelming control of a district, practitioners can create redundant or wasted votes. Alternatively, by drawing the boundaries so that they have a slim majority in a district they control, practitioners can ensure that fewer of their votes are wasted, allowing them to use those votes elsewhere.
While gerrymandering occurs everywhere political boundaries exist, the problem is particularly egregious in the United States where there is no federal law against gerrymandering and many states openly discuss the electoral implications of the boundaries they draw. The US has a long history of gerrymandering, starting from the country’s inception.
The founders of the United States were not immune to the temptation to gain electoral advantage through cleverly-drawn boundaries. Patrick Henry, a famous Virginia politician who helped foment the American Revolution, used his role in the Virginia legislature to draw Virginia’s Congressional districts in a way that would make it difficult for James Madison, a rival Virginia politician and future President, to win a seat in Congress. Ironically, Madison was able to overcome electoral obstacles, and won an influential seat in the early Congress.
Another early American use of gerrymandering actually gave us the term “gerrymander”. Eldridge Gerry (pronounced with a hard ‘g’, like “Gary”) in his role as Governor of Massachusetts, redrew the districts for the state legislature to benefit his party, the Democratic-Republicans. Critics found the districts to be laughably misshapen, and compared the shape of one to a salamander which they called the “gerrymander.”
Prior to the Civil Rights era, gerrymandering was an important tool in suppressing the political power of Black Americans. While the 15th Amendment guaranteed all Americans the right to vote, there was no corresponding right to effective political representation. Many states in both the South and North took steps to limit the electoral impact of Black voters. In 1965, Congress fought back with the Voting Rights Act, outlawing certain particularly racist methods of redistricting.
After the Voting Rights Act, gerrymandering continued only slightly hindered. Both Democrats and Republicans typically use some form of gerrymandering to solidify their control whenever they win state elections. The biggest effect is usually seen after control of a state legislature converts from one party to another. As a typical example, the Texas state legislature was won by Republicans in 2003, who quickly turned to convert districts drawn to favor Democrats into ones favoring themselves.
Gerrymandering and the US Constitution
In the American system, the biggest target of gerrymandering is the House of Representatives. The members of the Senate are elected by the entire state and thus are exempt from boundary redrawing. The Constitution requires that a census of the population be taken every ten years, and that the seats in the House be reapportioned (and their districts redrawn) as necessary.
The Constitution leaves open the question of who should draw the electoral boundaries for federal representatives within a state. Article One dictates that the state legislatures may choose the “time, place, and manner” of elections, and “manner” is interpreted to include the drawing of district lines. At the same time, the Constitution also says that Congress may “at any time make a law or alter such Regulations.” With this ambiguity in the Constitution, both the state and federal government have historically competed for legal power over elections, including the power to gerrymander.
The picture became more complicated with the passage of the Fourteenth Amendment following the end of the American Civil War. While the Amendment does not explicitly mention voting rights (aside from revoking the Three-Fifths Compromise), it sets out the wide-ranging principle that states may not limit the rights or privileges associated with citizenship, particularly on the basis of race. Since the passage of the Fourteenth Amendment, the Supreme Court has struck down attempts to gerrymander House districts based on race. This has led to some strained judicial arguments: in 2017, after drawing a particularly egregious House boundary that packed overwhelming groups of black citizens in a few districts to limit the impact of their vote, the state of North Carolina argued that it had done so because the voters were black (which would be illegal) but because they were Democrats (which, the Court had ruled, was not a reason to strike down the districts).
Ultimately, the legal consensus on gerrymandering in the US is still evolving. The Supreme Court has expressed concern that gerrymandering violates democratic principles, but because the Constitution is silent on the matter the Court has not established a process for reviewing or challenging partisan districts. In fact, in the most recent gerrymandering case (Vieth v Jubilirer), the Court agreed that the districts were illegally drawn with an intent to influence results, but argued that the Supreme Court was not the right branch of government to correct the issue. In 2017, the Supreme Court agreed to hear a case challenging districts in the state of Wisconsin, which is still pending.
Solutions to Gerrymandering
Several states have attempted to address the problem of gerrymandering, with limited degrees of success. Seven of the fifty states have created non-partisan councils to draw legislative districts, with the goal of creating geometrically simple districts that reflect communities instead of partisan goals. Another eight states are only allotted a single member of the House of Representatives, and lack the ability to gerrymander federal districts.
Perhaps surprisingly, the non-partisan councils were recently challenged in the US Supreme Court. As mentioned above, the text of the Constitution requires that state legislatures themselves determine the boundaries for Congressional elections. Opponents of the non-partisan solution in Arizona argued that it was an illegal forfeiture of the legislature’s Constitutional obligations. In a slim 5-4 decision, the Supreme Court found that the non-partisan approach was permissible.
In anticipation of the 2020 Federal Census, former US President Barack Obama has taken up gerrymandering as the main focus of his post-presidential political life. Obama and former Attorney General Eric Holder will focus on state-by-state campaigns to promote wider use of non-partisan methods of drawing districts. Combined with the upcoming Supreme Court case, the role of gerrymandering may change significantly in the next Congress.