A New Surge of an Old Pathogen
The term “gerrymander” first appeared in 1812 as a description of an electoral redistricting plan signed into law by Elbridge Gerry, then the governor of Massachusetts. The plan included an electoral district the shape of which was so unusual and distorted that Gilbert Stuart, a political cartoonist, depicted it as a large menacing-looking salamander. This wasn’t the first time an electoral district had been drawn to enhance the power of a political party. However, the unconventional shape of the district and its readily apparent nefarious purpose warranted the coining of a new name which was derived by combining “Gerry” with “salamander.” The word “gerrymandering” has since been used to describe the practice of “politicians choosing their voters rather than the other way around.” Through the years gerrymandering has grown both in pervasiveness and in sophistication and with increasing deleterious results.
Political parties use gerrymandering to maximize their representation in both houses of state legislatures as well as in the U.S. Congress. That end is achieved by two techniques: “packing” and “cracking.” The former refers to crowding the opposition’s likely voters into as few electoral districts as possible; the latter refers to splitting up the opposition’s likely voters and placing them into districts dominated by the controlling party’s likely voters. These two techniques can be used simultaneously in different parts of a state and together they can enable a political party to increase its chances of controlling a given electoral district and maximizing its control of the totality of the state’s electoral districts. Electoral districts firmly in control of one party are referred to as “safe” districts and the remaining districts are commonly referred to as “competitive” or “swing” districts.
In a “safe” district the only important election is the primary election because the result of the general election is preordained by the engineered composition of voters within the district. This causes the representation of the district to be determined by which of the controlling party’s candidates can best appeal to its supporters. That typically turns out to be the candidate who espouses the most uncompromising view of the party’s political agenda. Because representatives of “safe” districts cannot be defeated by a candidate from the opposing party, they have no incentive to collaborate on legislation proposed by representatives from the opposing party. More importantly, they are generally loath to do so out of fear that such efforts will be used against them in the next election.
In “swing” or “competitive” districts (of which there currently are only 41 in the entire U.S. Congress) those running for political office must tailor their campaigns to appeal to voters on both sides of the political spectrum. While this theoretically leaves them free to collaborate with representatives from the opposing party, in practice it doesn’t always work that way. That’s because elected representatives who have been collaborating with representatives of the other party are also likely to face a well-funded opponent in their next primary election. The recent censure of Representative Cheney and Kinzinger by their own party is reflective of this phenomenon. This, in large measure, explains why there is so little collegiality within the nation’s legislative bodies which are intended to operate in a bipartisan manner.
Gerrymandering is not unique to either of the nation’s two principal political parties. Both practice it. Still, it has had a much greater attraction to the Republican Party. That’s because gerrymandering is more readily available to Republicans since Democratic-leaning voters tend to be geographically congregated in large metropolitan areas making it easier to “pack” and “crack” them. This can be visualized by thinking of a metropolitan area as the center of a pie with the outer areas of the pie consisting of surrounding suburban communities. The urban core of the pie, inhabited largely by Democratic voters, will be “packed” into one or more (depending on the population of the city) “safe” Democratic-controlled electoral districts. The outer fringes of the metropolitan area (also largely composed of Democratic-leaning voters) will be “cracked” into small segments and merged into several outlying election districts dominated by Republican-leaning suburban voters. As a result, the voting power of those Democrats in the city’s core will be minimized and the voting power of those placed in the outlying Republican-controlled districts will be effectively eliminated.
Gerrymandering is also attractive to Republicans because they have adopted fiscal policies that heavily favor those at the upper end of the wealth and income scales. The small size of this demographic component impels Republicans to get maximum impact out of the voting power of their larger, but less affluent, groups of supporters. This has led Republicans to turn what was once a form of guesswork into a science. Before the advent of computers, gerrymandered election districts were devised largely on the basis of the character of the neighborhoods with the presumptions that urban areas were largely inhabited by Democratic-leaning voters and rural areas were largely inhabited by Republican-leaning voters. Suburban areas posed a difficult problem for political cartologists because they tended to include voters from both sides of the political spectrum.
With the introduction of computers, it became possible to correlate large databases of voter registrations with maps of individual residences. This went a long way to removing much of the mystery regarding which suburban voters were likely to vote for Republican candidates. Part of the problem faced by political cartologists was that almost a third of the populations of most states consists of registered voters with no declared party affiliation and those “independent” voters could easily swing the outcome of an election. This problem was first attacked using polling data to help identify how “independent” voters might vote. While factoring in polling data can help to identify the political leanings of independent voters, it can be unreliable because it relies heavily on extrapolation and those being polled are not always candid. In addition, there is the problem that those choosing to respond may not be representative of the neighboring population.
Over the past two decades gerrymandering entered a new phase with the growth of e-commerce and social media. Based upon data collected by Google, Facebook and other web-search and social media platforms it is now possible to determine any individual’s political leaning with a very high degree of accuracy. These sources of data provide political cartologists with the ability to create election districts with almost pin-point accuracy. The rise in political partisanship that has taken place over the past two decades has further helped to delineate political leanings of American voters. As a result, political maps can now be drawn to maximize the impact of a party’s supporters. These improvements in gerrymandering were recently on display in a court proceeding involving a political map approved by the Republican-controlled North Carolina legislature. Even though Republicans only represent represent 30% (compared to 36% Democrats) of the state’s registered voters, the evidence presented in the case revealed that Republicans would predictably win in 10 of the state’s 14 electoral districts.
Traditionally, there’s a surge in gerrymandering following each decennial census mandated under the U.S. Constitution and the 2020 census was no exception. As a result of that census, states controlled by Republicans had a net increase of five congressional districts --which coincidentally equals the number of additional congressional representatives that Republicans need to regain control of the House of Representatives. Added to that, the 2022 election is a mid-term election so that the party controlling the White House will likely lose a significant number of House seats. (See, “Midterm Election Scenarios are Not Created Equal”) These factors strongly indicate that the Republicans will regain control of the House in the 2022 election. They also largely dictate the strategies of the political parties in redrawing congressional districts.
Because Republicans have aggressively gerrymandered in the past, the possibilities for further enhancing their position in the House of Representatives through gerrymandering efforts are limited. Equally important, the appeal of Republican politicians to independent voters has significantly been eroded over the past year because of the Capitol insurrection and their ongoing efforts to legitimize that insurgency. As a result, most Republican-controlled state legislatures have opted to limit the creation of new safe electoral districts for their candidates. Instead, their strategy has been to concentrate on shoring up the congressional seats which they now control by moving additional Republican-leaning voters into those districts much in the way I described in “The Battle Lines for the 2022 Elections.” One notable exception to this approach was North Carolina’s attempt to greatly expand the number of safe districts for Republican candidates which was recently rejected by the state’s Supreme Court.
Recognizing that the 2020 census has placed their control of the House of Representatives in jeopardy, Democrats have adopted a diametrically opposite strategy. This decision was primarily mandated by their failure to pass their voting rights bills which would have restricted gerrymandering practices. Also underlying their decision was the Supreme Court’s unwillingness even to address “partisan” gerrymandering not expressly outlawed by the Civil Rights Act and the 14th Amendment (see, Rucho v. Common Cause) as well as the Court’s refusal strike gerrymandering in violation of those governing strictures (see, Merrill v. Milligan).
Consequently, the Democrats have opted to “fight fire with fire” by adopting their own aggressive redistricting plans in the states that they control. In particular, even though New York’s representation in the House was reduced by the 2020 census from 27 seats to 26 seats, the New York redistricting plan increases the number of seats that Democrats are likely to control by three. Similarly, Illinois is slated to lose one seat in the House of Representatives, dropping its number of Congressional districts from 18 to 17. Yet, under the Democratic redistricting plan it is anticipated that Democrats will increase their representation from 13 to 14 seats and Republicans will lose two seats (from 5 to 3). In California, which lost one of its 53 seats as a result of the 2020 census, the Democrats are reported to have done an “end-run” around the state’s bipartisan redistricting commission and adopted a redistricting plan that could yield them as many as six additional seats.
While these changes could offset the advantage that the 2020 census has provided Republicans, it also represents something of a “shoot-the-moon” gamble for the Democrats as it reduces the likelihood that they will actually prevail in those districts they are counting on winning. This ploy is particularly risky in a mid-term election in which the odds are that they will lose a number of otherwise winnable House seats. From the Democrats’ perspective, however, it’s a risk worth taking as it is not important whether they lose the House by one seat or 20 seats since the party holding a majority of seats tends to have complete control of legislation passed by the House. Equally importantly, the majority party also controls investigations undertaken by House Committees -- like the current investigation of the January 6th Capitol insurrection.
Of course, state legislators don’t have the last word in establishing congressional districts—the courts do. However, while the U.S. Constitution and the Voting rights Act of 1965 give the federal courts the right to reject political maps that discriminate on the basis of race, the U.S. Supreme Court has turned its back on attacks against such electoral maps. Still, state constitutions and laws remain in play and the courts in the states of Ohio and North Carolina have rejected redistricting plans enacted by Republican controlled legislatures in their states. Although the Illinois redistricting plan has already been approved by the courts, Republicans are now threatening to challenge New York’s new redistricting plan which it seems will be an uphill battle in view of the two Supreme Court cases cited above.
Because gerrymandering minimizes or even nullifies the votes of millions of Americans, it can be argued that it violates the principle of “one man, one vote.” The courts, however, have been reluctant to accept this argument because the rules governing the elections of senators (which allot two senators to each state) as well as the election of the president are in conflict with that principle. In addition, the U.S. Constitution expressly leaves to the states the power to establish the rules for elections except to the extent limited by federal law or the U.S. Constitution. Still a further erosions of voting power undermines confidence in our democratic system. Voter apathy is also engendered by the fact that the formulation of legislation by a gerrymandered legislature tends to take place behind closed doors on not on the floor of the legislature. These factors to a large degree are responsible for the low level of voter participation in this country which even in presidential election years never exceeds 65%.
The detrimental side effects of gerrymandering go well beyond discouraging Americans from voting. One of the by-products of gerrymandering is that it creates “safe seats” which in turn breed extremism at both ends of the political spectrum. This means that legislatures tend to be composed of individuals with widely differing views limiting their ability to function as deliberative bodies. As a result, what little legislation that does get enacted tends to be solely the product of the party in control which may ignore the needs of a majority of the electorate. Moreover, legislation generated by a gerrymandered legislature tends to be more political resulting in laws designed to excite the controlling party’s voter base or donors rather than to advance the interests of the citizens. We see this in legislation eroding abortion rights and legislation shielding gun-owners and gun manufacturers from liability as well as legislation shielding pharmaceutical manufacturers from competitive pricing. This further erodes the public’s confidence in the democratic system.
In a very real sense gerrymandering is a cancer that is attacking our democracy. It has now advanced to the stage that it poses a credible threat to the continuation of our nation’s democratic system of government. Just as Covid-19 impairs the ability of vital human organs to function properly, gerrymandering impedes our nation’s legislatures from enacting laws that are necessary for the well-being of our nation’s economy and the lives of its citizens. This raised the level of civil discontent to the point that in 2016 Americans were moved to elect a would-be authoritarian as their president. If gerrymandering is not curbed Americans voters might become willing to give up altogether on democracy.