Gerrymandering: An Unbreakable Habit?
Maryland’s Sixth Congressional District was once the state’s most conservative district, consisting primarily of hills and farms in the state’s western “handle.” Rural and Republican, for decades its boundaries remained largely unchanged, and with them, its representation: Republicans or conservative Democrats held the Sixth District House seat for more than seventy years. In 2010, Republican incumbent Roscoe Bartlett won his tenth term with 61 percent of the vote. Yet even as he celebrated, the boundaries of his district were shifting under his very feet, and with them, the district’s political future.
Under the Constitution, seats in the House of Representatives are redistributed among the states every ten years based on data from the most recent census. Most state legislatures take the opportunity to redraw their congressional and state legislative district maps to reflect their state’s changing population. In 2012, Maryland Democrats, who controlled both the state legislature and the governorship, wanted to redraw the electoral map to help defeat one of the state’s two Republican incumbents: either Andy Harris in the 1st district or Roscoe Bartlett in the 6th. They decided on Bartlett.
As a result, the Sixth District was radically altered. Heavily Republican Carroll County and Frederick County were removed and replaced by heavily Democratic portions of Montgomery County. The Sixth District consequently flipped from predominantly Republican to predominantly Democratic: while John McCain won the district with 57 percent of the vote in 2008, the new boundaries would have allowed his opponent Barack Obama to have won it with 56 percent of the vote.
Among the Democrats who ran against Bartlett was State Senate Majority Leader Rob Garagiola, who, perhaps not coincidentally, had played a major role in drawing the new district lines after the 2010 census. The Sixth District election was seen by many as a test of whether long time incumbents could win reelection in districts that had been radically altered by redistricting.
Having won the Republican primary, Bartlett went on to face John Delaney, who had upset Garagiola in the Democratic primary. Thanks to the new map, Delaney thumped Bartlett in the general election, winning by a whopping 21 points. While Bartlett retired to a cabin in the West Virginia hills, Delaney won reelection twice and has now declared his bid for the presidency in 2020. Moreover, Democrat candidates are now heavily favored to hold his seat this November.
2012 was not the first time that Maryland Democrats had used the redistricting process to force Republican incumbents out of the state’s delegation. In 2000, after Al Gore won the state with 56% of the vote, the delegation was split 4-4 between Democrats and Republicans, testifying to the power of longtime incumbents to win reelection on familiar territory. After the 2000 census, Democrats, who again controlled both the state legislature and the governor’s mansion, redrew the lines of the Second and Eighth Districts, home to Republican incumbents Connie Morella and Bob Ehrlich, to make them more Democratic. Morella lost to now-Senator Chris Van Hollen, while Ehrlich bailed to wage a longshot bid for the governorship (he won in an upset, but lost reelection four years later). His seat was won by Democrat and Baltimore County Executive Dutch Ruppersberger, who remains in Congress.
But the act of partisan redistricting is not one unique to Maryland Democrats—indeed, it is a habit that legislators of both parties across the country cannot—or will not—break. At least seventeen congressional incumbents besides Bartlett lost their reelection in 2012 due to redistricting. Most of these candidates lost in the primaries. Many others, like longtime North Carolina Rep. Brad Miller, chose to retire instead of struggling for reelection in a drastically changed district.
Partisan redistricting, or “gerrymandering,” is the namesake and legacy of Elbridge Gerry, Vice President to James Madison. Prior to this position, Gerry was governor of Massachusetts, where he signed into law a state electoral map designed to heavily benefit the Democratic-Republicans who drew it. The Boston Gazette compared one of its district shapes to a salamander, and the paper soon put two and two together and nicknamed the process of partisan redistricting “gerrymandering” in his dubious honor. Massachusetts voters gave Gerry the boot at the first opportunity, but the State Senate remained Democratic-Republican and the nickname stuck.
Although Elbridge Gerry is long dead, his legacy lives on in state legislatures across the country. The Washington Post found that a whopping forty states currently have gerrymandered congressional maps. The rise of complex computer programs has made gerrymandering far easier, and allows for the creation of mutant districts that make Elbridge Gerry’s salamander look quaint. The map of North Carolina’s Twelfth District, redrawn in 2010, is a prime example of a district that twists and turns without regard for geography, town, or county lines, all in an effort to include precincts and even individual voters to favor the party in power.
The same year that North Carolina’s Twelfth District was redrawn (by a Republican-dominated state government) to look like a pig’s intestine, two longtime Democratic incumbents, Brad Miller and Heath Shuler, decided to retire rather than run for reelection in heavily gerrymandered districts; another, Larry Kissell, lost reelection in a heavily changed district. A fourth, Mike Mcintyre, won by 655 votes but retired the next cycle; his seat was then won by a Republican. That year, the Republican Party picked up 63 seats in the House. Gerrymandering like North Carolina’s, which specifically targeted Democrats, prevented them from taking back the House during the 2012 elections, when they won the popular vote but not a majority of seats.
Gerrymandering has not only ensured Republican control of large sections of government until the end of the decade, it has also practically killed competitive House elections. Calculations done by the Redistricting Project at FiveThirtyEight.com found that, under current congressional maps, just 72 congressional seats, 17 percent of the total, are competitive from election to election, meaning that in the other 363, winning the Republican or Democratic primary is tantamount to winning the general election. In 83 percent of the country, the winner of House elections are predetermined, making it questionable why voters even bother to show up.
However, before we write the obituary of American democracy, it’s important to note that gerrymandering could, as soon as 2020, be a thing of the past. That’s because activists and legislators from across the political spectrum are seizing upon a new method of attack against gerrymandering: challenging it in the court system on constitutional grounds. There is currently a series of cases pending before the Supreme Court that presents a diverse array of challenges that have the potential to end gerrymandering, determine control of the House of Representatives in 2018, and change American democracy as we know it.
The first of these cases, which is currently awaiting oral argument before the Supreme Court, is a Republican challenge to the same Maryland congressional map that ejected Roscoe Bartlett from the House of Representatives and sent him packing for the West Virginia hills. Benisek v. Lamone challenges the state’s congressional map under the First Amendment. The plaintiffs,Republican voters from the 6th district, argue that by predetermining the outcome of elections, the congressional map violates the First Amendment right to political association. The state will argue that the map was a legitimate exercise of the redistricting power granted to state legislators by the Constitution, and that the Republican voters in question were not harmed by the map any more than any other Maryland voter disappointed with the outcome of the 2012 congressional elections.
In August, a three-judge federal district panel struck down the Republicans’ challenge. The challengers appealed the decision all the way to the Supreme Court, which accepted the appeal in December, with oral argument scheduled for March. This acceptance was remarkable: while the Court regularly strikes down legislative maps that unfairly discriminate against voters on the basis of race, it has never struck down a map for unfairly discriminating on the basis of partisanship. The last time the Court was faced with such an opportunity, it declined to do so, in the narrow 2004 decision of Vieth v. Jubelirer, where the challenge was based on a violation of the equal protection clause of the Fourteenth Amendment. This means that should a majority of the justices vote to strike down the Maryland map, they have a logic to do so without overruling their earlier decision in Vieth.
Benisek is not the only challenge to partisan gerrymandering currently pending before the Supreme Court. Gill v. Whitford, a Democratic challenge to the Wisconsin State Assembly map, has already been argued this term and will be decided concurrently with Benisek. Much like Vieth, the plaintiffs in Gill have based their challenge to the map on the equal protection clause of the Fourteenth Amendment.
The difference between Vieth and Gill is that unlike in Vieth, the plaintiffs in Gill have created a concrete standard for judging whether maps are unconstitutional: a formula known as the “efficiency gap.” The efficiency gap measures the number of “wasted” votes cast for either party: the larger the gap between the percentage of votes cast and the percentage of seats won, the larger the efficiency gap. This is based on the legal principle of symmetry, in which a party’s share of the vote total should be roughly symmetrical to its share of seats won. The efficiency gap is targeted to get the swing vote of Justice Anthony Kennedy, who expressed openness in his opinion in Vieth to striking down partisan gerrymanders if given a concrete standard for judging such maps.
Even if the Supreme Court fails to strike down the maps in Benisek and Gill, gerrymandering may still find itself under judicial threat. Last month, in a 5-2 ruling, the Pennsylvania Supreme Court struck down the Republican-drawn congressional map in League of Women Voters, et al. v. The Commonwealth of Pennsylvania, et al. League is noteworthy for its constitutional basis: the judges based their decision on a violation of the state constitution, not the federal one.
Earlier this month, the Supreme Court declined to stay the ruling in League, opening up a third avenue of attack against partisan gerrymanders: judicial challenges under state constitutional grounds. One ripe target could be North Carolina, home of the contorted Twelfth District, one of the most gerrymandered in the country. If current federal challenges to the maps are unsuccessful, plaintiffs could challenge the state’s map again for violating the state constitution, and have a decent chance of success, given the North Carolina Supreme Court’s new Democratic majority.
Any of the above cases on their own would pose a potent threat to the future of partisan gerrymandering. Taken together, with their varied constitutional logics, geographic diversity, and bipartisan nature, they have the potential to mount a multifaceted, sustained, and hopefully fatal judicial assault on partisan gerrymandering.
Immediately at stake is nothing less than complete control of the House for the rest of Donald Trump’s presidency, be that three or seven years. The current congressional map, has an efficiency gap such that even in a Democratic wave year, as 2018 increasingly resembles, it would be very hard for Democrats to take back the House. Under the current maps, in an average election year, Democrats would be projected to win 200 seats in the House, well short of the 218 needed for control. If the maps were drawn to minimize the efficiency gap, the Democrats would be expected to win on average 214 seats. That’s a difference of 14 seats based only on shifting boundaries on the same map.
Even if the whole country’s congressional maps are not redrawn over the next eight months (such a drastic move is highly unlikely), control of the House could still be affected. In Pennsylvania, the Pennsylvania Supreme Court redrew the state’s congressional map in time for the midterms this coming November. The new map is far more favorable to Democrats than the old, and could lead to a Democratic gain of three to five seats, according to calculations by Daily Kos Elections, making their path to retake the House that much easier. The new map is such an electoral boon to Democrats that some liberal activists are even calling it “redistrictmas”.
With our current political situation, control of the House means everything. If Democrats take over the House, they gain control of congressional committees with the power to stymie the White House at every turn. Control of the House Oversight Committee would give Democrats subpoena power to investigate all aspects of the Trump administration. With control of the Rules Committee comes power over which bills are brought up for a vote, meaning Trump’s legislative agenda will be dead on arrival. And, should it come to that, the House’s majority party will determine whether Articles of Impeachment die in the Judiciary Committee or pass the House. If Republicans keep the majority, on the other hand, they can continue to steamroll the Democratic minority, and they will likely have gerrymandering to thank.
Over the next few months, the Supreme Court has an historic opportunity to relegate gerrymandering to its rightful place on the garbage heap of history, right next to property requirements, literacy tests, and poll taxes. Additionally, the League case improves Democratic chances to take over the House and will likely lead to future strikedowns. Either way, Elbridge Gerry’s legacy may soon be gone. Gerrymandering could soon be a thing of the past, and a bad voting administration practice soon broken.