Recent rulings in Michigan and Ohio add to “the growing chorus of federal courts” finding partisan gerrymandering unconstitutional. The Michigan panel noted that inaction “will only increase the citizenry’s growing disenchantment with, and disillusionment in, our democracy.” Anticipation mounts with the US Supreme Court expected to issue an opinion on maps from North Carolina and Maryland in June.
Despite optimism over these recent cases, the refrain of defendants remains compelling. Their argument is simple: partisan gerrymandering has been around since our nation’s founding and courts have no business entering the “political thicket” of redistricting.
A response to this claim does not fit neatly into a legal argument. It requires a deeper understanding of American democracy and how gerrymandering evolved over time. At its inception, America embraced a radical idea of society. The Declaration of Independence announced, “governments are instituted among men, deriving their just powers from the consent of the governed.”
James Madison helped craft Article I of the Constitution to ensure a House of Representatives would be elected directly by the people. At one representative per 30,000 residents, the framers believed the electorate would be large enough to ensure diverse opinions. This section further provided that the number of representatives per state would be readjusted every 10 years based on a census. However, Section 4 simply says “the times, places and manner” of congressional elections shall be prescribed by state legislatures. In other words, the framers saw the calibration of district size as its main instrument to combat factionalism and did not address standards for drawing districts. I
Ironically, Madison was one of the first targets of gerrymandering (even before the practice got its name in 1812) when Patrick Henry drew a district to favor James Monroe. However, gerrymandering played a limited role in the first half of the 19th century. Parties as we know them today did not exist, and most states had statewide districts.
It wasn’t until the second half of the 19th century when slavery and reconstruction divided that country that creative map drawing took hold. Whenever a state legislature changed hands following a 10 year census, party bosses carefully drew districts for partisan advantage. These “efficient gerrymanders” were designed to win the maximum number of seats even if the margin of victory was slim. With so many competitive districts, these districting plans led to massive losses the following election cycle and fell out of favor.
In the first half of the 20th century, many states did not redistrict for decades. Over time, the lack of reapportionment produced districts with many times the voters of other districts, substantially diluting the voting power of some. By the 1960s, the courts took action on these so-called “silent gerrymanders,” requiring districts to have the same population or one-person one vote. In the latter part of the 20th, courts began invalidating district plans under the Voting Rights Act as “racial gerrymanders.”
The hyper-partisan maps of the 21st century pose a new threat altogether and one that goes to the heart of American democracy. Instead of using traditional standards such as political subdivisions, contiguity and compactness, new software allows map drawers to create districts impenetrable to competition based on their one-sided composition. As many as 90% of seats now go unchallenged or are uncompetitive.
These plans are known as “exclusive gerrymanders” because they ensure one party has an exclusive lock on each district. In other words, the framer’s vision of electorates large and diverse enough so that representatives “may best discern the true interest of their country” has given way to electorates with specially selected voters, ensuring one faction gets elected.
By codifying partisan politics into redistricting plans, these maps attack the central idea of American democracy: voting by large, diverse electorates. Politicians representing these extreme districts are the only ones who benefit from their uncompetitive design, and they have no incentive to combat this practice.
We hope that by recognizing the danger partisan gerrymandering poses to American democracy, the courts can establish new guidelines for drawing maps as they have in other instances. With the 2020 census coming next year, the time must be now.
Mack Paul, a Raleigh attorney, is a board member of Common Cause NC, which is a party to the partisan gerrymandering case pending at the US Supreme Court.