Drawing the boundary lines of legislative or congressional districts to provide an unfair advantage to one party is a practice with a long if not distinguished pedigree in American politics. The name for this process — gerrymandering — derives from Elbridge Gerry, a Massachusetts governor who in 1812 approved a redistricting plan that included a misshaped district resembling a salamander.
But increasingly sophisticated computer software has turned Gerry’s salamander into a true monster. It allows a party that controls the state legislature to perfect the art of map manipulation, ensuring that its candidates are elected in numbers obscenely out of proportion to its support statewide.
This partisan gerrymandering — there is also “racial gerrymandering” designed to dilute the votes of minorities — devalues democracy by unfairly rigging electoral maps. It dilutes the votes of large numbers of citizens, makes elections less competitive and allows people to win seats they would not have won had the system not been cynically manipulated. Fortunately, there are welcome signs that the tide is turning.
On Monday the Pennsylvania Supreme Court, which last month ruled that a congressional map drawn by the Republican legislature violated the state constitution’s guarantee of “free and equal” elections, promulgated a new map that relies on advice from a Stanford University professor. Under the previous map, voters in 2016 cast ballots for Democratic and Republican House candidates in roughly equal numbers, yet 13 of the state's 18 House seats went to Republicans. Under the new map, observers expect the delegation will be more evenly divided. The new map also satisfies the court’s requirements for more compact districts and fewer districts that break apart counties. (On Wednesday, Pennsylvania Republicans asked the U.S. Supreme Court to block implementation of the new map.)
Meanwhile, in neighboring Ohio the legislature has voted to put on the ballot a proposed constitutional amendment that would establish a complicated new arrangement designed to involve both parties in the congressional redistricting process. As in Pennsylvania, Republicans in Ohio after the 2010 census fashioned a map that gave their party an advantage. In 2016, Republicans won 12 of the state’s 16 House races, or 75% of the seats, even though the party attracted only 58% of the votes cast for congressional candidates.
Finally and potentially most significantly, the U.S. Supreme Court is expected to decide two gerrymandering cases within the next few months. The court already aided the cause of reform with a 2015 ruling upholding the right of states to entrust the drawing of congressional district lines to independent commissions, as California does. But the cases before the court this term provide an opportunity for the justices to go dramatically further and rule that some gerrymanders are so extreme that they violate the U.S. Constitution.
The first case, which was argued last October, involves a Republican-friendly map for the Wisconsin Assembly. The second, which will be argued March 28, focuses on a map fashioned by Democrats that allowed their party to capture a historically Republican seat in Maryland’s House delegation.
Looming over both cases is a 1986 Supreme Court decision holding that partisan gerrymandering could violate the 14th Amendment's Equal Protection Clause if it intentionally and effectively discriminated against an identifiable political group, such as members of a political party. But the court, which didn't find such a violation in that instance, has never agreed on a clear standard for deciding whether partisan gerrymanders violate equal protection of the laws.
The lack of guidance from the Supreme Court hasn’t stopped plaintiffs and lower-court judges from coming up with workable legal standards, however. In striking down the Wisconsin map, a three-judge federal court said that the U.S. Constitution was violated if a redistricting plan is "intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation," has that effect, and "cannot be justified on other, legitimate legislative grounds." The judges relied not only on the Equal Protection Clause but also the free-speech protections of the 1st Amendment.
The 1st Amendment is at the center of an argument for lawyers challenging the Maryland map, which was designed by Democrats to eliminate a GOP-friendly seat long held by Republican Rep. Roscoe Bartlett. In their petition to the Supreme Court, the lawyers representing Republican voters argue that “citizens enjoy a 1st Amendment right not to be burdened or penalized for their voting history, their association with a political party or their expression of political views.” That claim quotes from a 2004 opinion by Justice Anthony Kennedy, who is likely to be the deciding vote in the Maryland case.
Lawyers can argue about whether the justices should rely on the 14th Amendment or the 1st Amendment in striking down partisan gerrymanders. In fact, maps that disproportionately favor one party violate both political equality and free speech. What matters is that the court use its authority to end this abuse by district-drawing state lawmakers, because you can’t always count on state supreme courts to stop them. More than two centuries after Elbridge Gerry signed off on his “salamander” map, the day of reckoning for gerrymandering has arrived.