Courts Rethinking Gerrymandering

by John Lawrence

Whenever a discussion of the origins and causes of contemporary partisanship takes place, it doesn’t take long for the subject to turn to the pernicious topic of gerrymandering: drawing legislative district lines to enhance the probability that one party will win a larger number of seats than the partisan vote distribution in the state merits.

In the past, the courts have hesitatingly weighed into the frequent battles alleging manipulation of district lines, mainly in cases where the boundaries have been tortuously drawn to disenfranchise racial or ethnic minorities (typically by hyper-concentrating them into one district to purge adjacent districts of their influence). Now, however, it appears the courts are so offended by the excesses of Republican legislatures (for the most part, since the GOP dominates in the control of line-drawing legislatures) that they may impose a tougher standard that could play an enhanced role in diminishing the partisanship so decried by politicians and the general public.

On Monday, the Pennsylvania Supreme Court threw out the congressional districts drawn after the 2010 Census by the Republican legislature for “cleanly, plainly and palpably” violating the state’s constitution. The court declared that if the Legislature does not redraw a plan that the Democratic governor agrees to submit by Feb 14, in time for the state’s upcoming primary election, the court will do the job itself. With an eye towards the ungainly, spindly districts concocted by the Legislature, the court insisted that the new districts reflect the common standards of being “compact and contiguous territory” composed of a roughly equal number of voters and that do not divide counties, cities towns or other subdivisions except to achieve numerical equity.

Pennsylvania is a prime candidate for such distortions because its sizeable Democratic population is hyper-concentrated in just a few areas of the state around Philadelphia, Pittsburgh and Scranton. As a result, it has been easy to give safe seats to a few Democrats like Bob Brady and Dwight Evans whose Democratic margins are nearly double those enjoyed by any other incumbent, Democratic or Republican. Providing these few Democrats with so many excessive, “wasted” votes (in the parlance of redistricting) bleeds enough Democrats out of nearby districts to give an advantage to Republican candidates. As a result, although Democratic candidates won over 50% of the combined votes for the U.S. House seats in the state, they were able to win just 5 of the state’s 18 seats in Congress.

The Pennsylvania decision is very timely. The U.S. Supreme Court is also weighing a significant gerrymandering case that ventures beyond race-based motives for disenfranchising voters to the less clear standard of deliberate distortion to gain disproportionate political advantage. Courts have been hesitant to rule on such cases in the past since the Constitution is silent on the issue of political parties and says little aboutthe overall issue of reapportionment and state elections.

But the concern about partisanship appears to have moved the courts to adopt a more pro-active stance and question whether drawing lines to favor one party over the other contributes to a poisoned political environment. Many believe drawing such safe districts has just such an impact by empowering more extreme elements who prevail in primaries where voter participation is light and skewed to the more ideological office-seekers.

Fixing the abuses of gerrymandering is not without risk, especially to minorities. Black voters in particular, long suffered from the “cracking” gerrymandering strategy that fragmented their votes (when they were allowed to vote at all. These communities benefitted from reapportionment changes in the 1990’s that allowed the creation of “majority minority” districts by hyper-concentrating minorities (and therefore, Democrats) into districts to ensure the election of a minority legislator. As a result, the number of minority-held seats swelled, but likely at a cost of many adjacent districts that were deprived of minority Democrats who had made those districts more competitive. Instead, those adjacent districts were now occupied by Republicans and often by hard line conservatives who win their primaries.

David Lublin of American University studied this conundrum in the 1990s, concluding that the benefits of ensuring the election of minorities to these safe districts was confounded by the increased probability that the resulting legislature in which they served was unlikely to have a majority sympathetic to the minority’s policy objectives. Courts have winked at this race-based gerrymandering in order to empower minorities, but the current round of reviews may result in some fine-tuning, perhaps by limiting the proportion of minority voters to ensure the election of a minority legislator. Is it 65%, or in the post-Obama world, is that figure closer to 45%?

Fixing gerrymandering alone is unlikely to significantly roll back the partisanship that is suffocating our politics, but it could make several dozen districts more competitive. That outcome might well reward legislators who fought for more moderate approaches, assuming moderate voters vote in primaries and help select those candidates. And purging Congress of grotesquely distorted districts would likely put control of the House itself in play more often, although the presence of more competitive districts and uncertain control may accentuate party discipline more than enhance collaboration. Still, how much worse could it get?