High-profile Supreme Court decisions and the stakes of the 2021 decennial redistricting processes elevated partisan redistricting into the national spotlight in 2020. The partisan gerrymandering debate focuses on the constitutional context and judicial precedent deciding which entities are responsible for drawing district lines. When the courts punt responsibility back to state legislatures, political strategists focus on increasing their majorities in state legislatures for more favorable outcomes. Rather than engaging in a cycle of enacting and undoing commissions or ballot initiatives competing for the power to draw district lines, it is time for voters to demand immediate shifts toward transparent processes, regardless of where the power of the maps lies.
Partisan redistricting dates back to the origin of political parties in the United States. In 1812, the practice of partisan redistricting earned the popularized name of “Gerrymandering” after Governor Elbridge Gerry in Massachusetts drew state senate district lines to intentionally disfavor the Federalist (opposition) party, the boundaries of which resembled a salamander.
Since then, Democrats and Republicans have both leveraged partisan redistricting tactics for party advantage in states where they maintain a majority, though Republicans currently benefit more from this tactic.
Despite its clever moniker earning gerrymandering a place in U.S. government textbooks, those chapters are sparse on solutions to this thorn in the rosy democratic principles of fair representation. However, there is a window of opportunity prompted by recognition from Democratic strategists of their weak state election strategy, the implications of 2020 as a census year, and the Supreme Court’s 2019 decision that redistricting is firmly a state, rather than a federal, issue. These converging factors offer a renewed chance to leverage voter interest for a neutral, transparent and process-oriented solution to partisan redistricting.
Constitutional Context
While drawing lines to favor one political party over another seems innately unfair, the interpretation of the legality and constitutionality of gerrymandering is more complex. Historically, the Supreme Court decided redistricting cases using the legal basis provided by the Voting Rights Act of 1965 (VRA), the “one person, one vote” principle under the Equal Protection Clause of the 14th Amendment, and more recently have invited arguments on the basis of the protection of speech and association under the First Amendment. This legal foundation ensures that districts are not drawn to perpetuate racially discriminatory intent or effect and to principally ensure U.S. citizens of effective and proportional representation by their elected officials.
The overlap of the presidential, congressional, and state-level elections with the distribution of the decennial census made 2020 a particularly important year for fair districting advocates. The census data will be used by decision-makers to establish district composition and boundaries for the next decade, while many of this year’s elections determined the party with the power to draw those boundaries in 2021. The Census is used as a baseline to reapportion representatives to states and to redraw district lines where significant shifts in the population may have occurred. A recent legal challenge questioned whether the census population is the total population of the U.S. or just the eligible voting population. Federal law and the VRA require that population distribution, compactness of a district, and preservation of communities of interest are taken into account when drawing district lines. The latter two requirements tend to be the focus of legal arguments against partisan gerrymandering.
A series of Supreme Court cases beginning in 1986 with Davis v. Bandemer established judicial authority over partisan gerrymandering. While the Supreme Court did not find a partisan gerrymander in Bandemer, the Court offered a cause of action (set of facts allowing for legal justification in bringing an action against another party) using a two-prong test:
- intent: an established purpose to create a legislative districting map to disempower the voters for one party; and
- effect: proof that an election based on the contested districting scheme led to a distorted outcome.
Justice Anthony Kennedy’s concurrence in Vieth v. Jubelirer sparked further attempts, and struggles, to find a “workable standard” for unconstitutional partisan gerrymandering Redistricting reformers proposed an efficiency gap metric in Gill v. Whitford, claiming this gap measured how many votes are wasted (votes cast for the winner beyond those necessary to win) and demonstrated a concerted effort to “pack” or “crack” districts for the sole purpose of achieving political advantage and “diluting the political influence of a targeted group of voters”. This effort was dismissed by Justice Kennedy as “sociological gobbledygook” and his call for a workable standard remains unmet.
Given the propensity for the Supreme Court to kick decisions around partisan redistricting back to states and legislatures, dissenters such as Justice Elena Kagan argue that partisan gerrymandering cases could be examined and judged against the state’s own accepted standards of compactness and contiguity. Yet even this attempt to enforce existing standards is rebutted by unique and evolving criteria that each state uses to draw district lines.
Political Context
The Supreme Court’s designation of partisan gerrymandering as a political question, rather than a judicial one, and the Court’s resistance to defining a standard for unconstitutional partisan gerrymandering tosses this political question to Congress or to state legislatures.
In states where neither party holds a veto-proof majority in one or both branches of state government, parties are already forced to work together to draw legislative and congressional district lines. Ten states have instituted redistricting commissions to reduce partisanship, and have done so through ballot measures that often receive a majority of over 60%. Redistricting commissions can either be independent of legislatures and state executives or sit within legislatures as a bipartisan body. Where such commissions exist independently, the Supreme Court ruled that independent redistricting commissions emerging from legislative processes, such as ballot initiatives and referenda, are constitutional. But the dissenting opinion — possibly reflective of the now-present Court majority — argued that the constitutional authority granted to state legislatures is restricted to the elected legislators rather than the state legislative processes and resulting decisions. Beyond the Supreme Court’s division on this issue, others question how these independent commissions can be held accountable by voters.
Redistricting reform at the national level seems unlikely while Republicans retain a majority in the Senate and can suppress House legislation such as the For the People Act of 2019, which demanded independent commissions for state redistricting. Further, a new, more conservative composition of the Supreme Court and the preexisting prohibitions in nearly half the country on citizen-generated initiatives, which can be used to create independent commissions, make gaining traction for a national mandate for independent commissions unlikely. This leaves voters and representatives with one option: overturning a hostile majority by flipping seats and challenging incumbents – an uphill battle in states where district lines are already drawn to partisan advantage.
Redefining a Workable Standard
Justice Kennedy set forth the challenge of finding a workable standard for fair redistricting with constitutionality in mind. But in a more transparent redistricting process, voters may define their own workable standard differently. While redistricting may not be perceived as a platform issue driving people to the polls (yet), citizens have a long history of defending fair representation and discerning discriminatory intent and effect in policies.
With or without independent commissions or a judicial mandate, voters can act to propose more participatory redistricting processes and a public review of maps drawn to meet the fundamental requirements of compactness, equal population and non-discrimination of communities of interest. The long game in eliminating partisan redistricting may require a political agenda based on winning state elections and ousting incumbents and vested interests in order to institute independent commissions. But it’s not clear that the successful execution of this independent commission strategy would actually yield less partisan maps nor that those efforts would yield a permanent solution, as evidenced by ongoing attempts at the state and federal level to delegitimize existing boards and commissions.
Enabling participatory processes like public hearings and citizen review boards would sustain transparency and public interest even outside of election years. Participatory mechanisms have the added benefits of being more politically tricky to oppose and can be more swiftly implemented as a possible solution no matter where the decision-making power currently lies – a commission or the legislature.
As technology enhances the ability of existing mathematical models and solutions to ensure fair districts, what the majority in the Roberts Court might see as sociological gobbledygook may appeal to citizens who increasingly are aware of the impact of redistricting policies and voting processes on civil society strength.
The Path Ahead
The 2020 Presidential election has elevated the principle that every vote counts in a highly visible and, perhaps newly contentious, manner to US citizens. We cannot yet predict the public impact of the distrust in any and all election or voting institutions arising from this election. Distrust may further divide voters along party lines on the issue of fair redistricting, which could otherwise be framed to voters as a nonpartisan cause. However, the increased issue attention and the intersection with grassroots movements fighting voter suppression may drown out the distrust and division to ultimately galvanize support for a more commonsense, consistent, and transparent approach across parties. There is a clear overlap in voter registration and gerrymandering elimination objectives, as shown by the growing evidence that partisan gerrymandering depresses turnout.
In a recent string of decisions, the Supreme Court designated partisan gerrymandering a political, rather than judicial, problem to be solved. Whatever the post-2020 political landscape holds and regardless of which party holds power at the state level, we may see voters themselves newly stepping into the breach to demand innovation, transparency and their own workable standards in redistricting processes.
Curious how your state redistricts? The visualization below outlines each state’s redistricting authorities.
MPP, GIWPS Gender, Peace, and Security Certificate ’21 – International Development, Civil Society and Governance, Gender and Human Rights
Nisha is currently an MPP evening student and during the day she works on reproductive health and rights advocacy at The White Ribbon Alliance. After earning her BA from Macalester College in 2010, Nisha cut her teeth in civil society and development work as a community organizer in Florida before shifting to international development project management, primarily in Africa and South Asia. Her personal interests include teaching dance classes and being overly zealous about her book club.