Inverting Democracy: Gerrymandering in America

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It might seem a truism to say that voters should choose their representatives, but in the USA gerrymandering has got this precisely the wrong way round.

Frank Mascara had served for three decades as an elected official of Washington county, which covers southern Pittsburgh. The last eight of those had been in the House of Representatives as a moderate Democrat. Like most of his constituents Mascara’s family was working class. His father was a steelworker and his grandfather a miner; both would die in workplace accidents. After army service Mascara followed them into heavy industry. A union member and glass factory employee, he later set himself up as an accountant before entering politics.

In 2002 however, the Republican state legislature in Pennsylvania redrew the electoral map. Mascara found himself in a different district from his blue collar neighbours. A new district had been drawn around a band of wealthy, Republican suburbs from which a tiny tendril descended, intruding into Mascara’s neighbourhood of Charleroi, extending down his street and stopping just after his house, but before his parking space. Most of his former constituents were instead to be represented by Democrat colleague, John Murtha. Mascara realised he could not win in his new home district, and indeed that November it was handily won by a Republican. He therefore opted to primary Murtha, but ultimately lost that race, so ending his thirty years of public service.

Mascara was just one of many victims of gerrymandering, a form of political skulduggery in which electoral districts are drawn to favour one political party over another. In most US states the state legislature has the power to draw the districts which elect representatives at the state level as well as to the House of Representatives. Once a party has won control of a particular state legislature, they can then create state level districts such that it becomes very difficult to then dislodge them from that position of power. With this iron control over the state established, the districts which elect to congress can then also be manipulated. Both political parties in the US gerrymander but it tends to be practiced largely by the GOP. With the Tea Party wave in 2010, Republicans managed to wrest control of nineteen legislative chambers at the state level, giving them a free hand to gerrymander a huge swathe of America. Using sophisticated computer programs such as the aptly named ‘RedAppl’ , Republicans have gerrymandered with chilling efficiency, helping them to take roughly 1,000 seats in state legislatures from the Democratic Party since 2008.

Gerrymandering is not however anything new, but rather a venerable tradition of American politics. The term was first coined in 1812 in the Boston Gazette, (see the original cartoon above), a portmanteau of ‘Gerry’, the surname of the then governor of Massachusetts, and ‘salamander’, a reference to the contorted shape of the district which the governor was accused of manipulating. Such is its ubiquity that special terms have developed for different methods of gerrymandering. Mascara had been ‘kidnapped’, a relatively exotic gerrymander. By far the two most common types of gerrymandering, however, are ‘cracking’ and ‘packing’. Cracking splits a voter bloc among many districts, making them powerless minorities. Packing by contrast shoves as many voters of a particular political persuasion as possible into a single district, such that the surrounding districts lacking such voters swing in the opposite political direction. In Republican states packed districts are very often heavily populated by ethnic minorities which introduces an ugly racial dimension to gerrymandering. The most egregious examples of packing and cracking are focused mainly in a handful of key states- Republican gerrymanders notably afflict Ohio, Pennsylvania, Florida, Texas, North Carolina, Michigan, Wisconsin and Virginia. Democrats have gerrymandered as well in Illinois and Maryland.

The gerrymander has in recent years exerted more and more of a distorting effect on American democracy. After the 2008 elections in North Carolina, the Democrats won eight of thirteen house seats. But when the Republicans took control of the state legislature in 2010, the House districts were redrawn. In 2012, the majority of voters again voted for Democratic House candidates, but the Democrats won only four seats, with the Republicans taking the other nine. Indeed gerrymandering has become so severe in North Carolina that it, along with other abuses perpetrated by the Republican state government, recently lead to the state being classed by a Harvard study as ‘no longer a fully functioning democracy’. Looking at all House races in 2012, the same pattern as in North Carolina was repeated. Despite losing the popular vote in House elections across the country by about 1.4 million votes, Republicans maintained a majority in the House of thirty-three seats. The University of Virginia’s Center for Politics forecasts that Democrats in 2018 will need a 5% margin of victory in the popular vote for the House of Representatives to be likely to retake that chamber, while other forecasts suggest that a margin closer to 9% would be required.

Gerrymandering not only continues to undermine the democratic will as it did in 2012, it also has more subtle yet equally pernicious effects. Representatives in safely gerrymandered districts have no real incentive to do a good job for their constituents and very little accountability. Corrine Brown, for example, the Democrat representative of Florida’s 5th district, which was packed with African-Americans, was recently sentenced to five years in federal prison for committing massive fraud which involved setting up a charity purportedly to give scholarships to underprivileged children, but which in fact served as a personal slush fund. Such corruption cases are not rare. Of the fifteen congresspersons convicted of federal crimes since 2001, six were from packed Democrat districts.

Another problem is that in districts in which the winner of the race is essentially dictated by the primary of one dominant party, rather than the actual election, compromise with political opponents is discouraged. There is always the risk in the US’s hyper-partisan environment, that candidates who fail to tow the party line can be challenged internally and removed, as primaries tend to sample the most invested political supporters of a given party. In these super-safe, manipulated districts the danger to incumbents comes not from the other side of the political spectrum, but rather the extreme end of their own. In a non-gerrymandered, competitive district however, hardliners can be a turnoff to swing voters, and those willing to compromise are more likely to profit.

A final harm of gerrymandering is that it discourages voting by creating seats for one party. If a district will always tip one way, then there is no reason to make oneself heard at the ballot box, which disincentivises political engagement and contributes to the sense that politics can’t be changed by the little person. In the historically uncompetitive 2016 elections for the House of Representatives, the average margin of victory in a House district was 37.1%. Just 17 seats out of 435 were decided by a margin of 5% or less, thirty-three seats in total were decided by a margin of 10%t or less. 90% of House races were therefore foregone conclusions. Only eight states of fifty had any truly competitive races at all. Gerrymandering is by no means the only, or even the most significant cause of increasingly uncompetitive House races. Increasing political polarisation, or voting blocs increasingly being sorted by geography, often along the urban-rural divide, have also greatly contributed to the massive margins racked up by victorious House candidates. Nevertheless gerrymandering appears to be at least in part behind this trend. As well as encouraging voter apathy, gerrymandering is such a nakedly cynical and anti-democratic practice, that it can hardly have helped to inspire confidence in the establishment. It is perhaps unsurprising that the political class in the US is seen with such distrust; Gallup’s latest figures show approval of Congress at an abysmal 13%.

Gerrymandering is by default an advantage afforded to the party which already controls the levers of power; it is a method of consolidating control. It may therefore appear to be an intractable problem. Those who could change the status quo are those who have orchestrated it in the first place for their own maximal benefit. The legal rulings surrounding gerrymandering are dizzyingly complicated but have thus far allowed it to largely survive, only what is called ‘racial gerrymandering’ has been targeted by lawmakers. All gerrymandering aims at manipulating some partisan advantage through redistricting, but as ethnic minorities tend to support the Democrats, in cases of Republican gerrymandering often these minorities are targeted. This is racial gerrymandering. Racial gerrymandering was somewhat stymied by the Voting Rights Act of 1965 which passed with bipartisan support under Lyndon Johnson, and was amended in 1982. Albeit that the Supreme Court in recent years has severely weakened the safeguards put in place by the law , the legislation has still prevented some of the most extreme packing and cracking of minority groups. Merely partisan gerrymandering however, which does not resort to targeting a particular minority, has thus far largely survived legal scrutiny. This has had the strange result that in North Carolina, for example, where Republicans are routinely sued for racial gerrymandering, the GOP freely admits to manipulating districts but argues that they are not targeting black voters but simply Democratic voters (who overwhelmingly happen to be black). In other words they do not deny gerrymandering as they know that if they can frame it as merely partisan, they can get away with it. Rep. David Lewis who leads the redistricting committee in the North Carolina state assembly was explicit: ‘We want to make clear that we … are going to use political data in drawing this map,’ said Lewis, adding that ‘It is to gain partisan advantage on the map … I want that criteria to be clearly stated and understood.’ But Lewis might soon be regretting that move; 2017 might be the year the gerrymander in all its forms is finally slain.

The Supreme Court this October heard what promises to be a landmark case, Gill v. Whitford, which has the potential to get rid of gerrymandering once and for all. The case comes from Wisconsin, where Republicans in the lower house of the state legislature had paid a team of consultants $400,000 to draw state district lines as favourably as possible for Republicans. Ironically the money was taken from general funds for the state legislature, i.e. from funds shared by Republicans and Democrats. Democrats were in other words forced by the Republican majority to finance the drawing of maps which were engineered with terrifying accuracy to ensure their own ouster. Forbidden from entering the ‘map room’ Democrats had no chance to inspect their new districts, although almost all Republicans got the opportunity to examine the new lines, each signing a non-disclosure agreement before the viewing. The plan was soon after forced through on a party line vote. In 2016 with 53% of the popular vote for the State Assembly, Republicans won 64 of 99 seats. Their district map was however struck down in November of that year by a panel of three federal judges, and remarkably the court invalidated the lines on grounds of partisan gerrymandering. Republicans rapidly challenged the ruling and the case has moved to the Supreme Court.

The reason why historically the conservative justices of the court have been loath to strike down simple partisan gerrymandering, is that they believe the issue to be ‘non-justiciable’, or in other words that there are no clear metrics for establishing when a district is gerrymandered, and when such manipulation becomes unacceptable and what an appropriate replacement district would look like. Given these difficulties the Court has refused to offer a legal remedy to partisan gerrymandering and left the issue as a ‘political question’. Various statistical methods and sociological analyses such as the much touted ‘efficiency gap’ model have been developed, however, since the court last considered pure partisan gerrymandering in 2004 in Vieth v. Jubelirer. These advances, the opponents of the gerrymander hope, will be enough to entice the perennial swing vote Justice Kennedy to join with the liberal wing and strike down gerrymandering in totality. Oral argument which was heard in October, bodes well on this front. Kennedy seemed receptive to the arguments against the gerrymander, while repeatedly questioning its legal defenders.

Another encouraging sign is that the Supreme Court has taken another partisan gerrymandering case, Benisek v. Lamone, this time from Maryland, which exhibits a Democratic gerrymander. Court-watchers have theorised that this may be because the Republican plaintiffs in the Maryland case ask for legal remedy solely on 1st amendment grounds, that the state government punished them for expressing their political views, rather than largely on 14th amendment which guarantees equal protection under the law, as the Wisconsin case does. Kennedy indicated in Vieth that he believed partisan gerrymandering would be found unconstitutional on 1st, rather than 14th amendment grounds, and has historically been exceptionally receptive to free speech arguments, such as when he provided the swing vote in the majority which struck down campaign finance regulations in Citizens United. Alternatively the court may be trying to assuage Justice Robert’s concern that the American public would see a decision striking down partisan gerrymandering as inappropriate meddling by a politically biased and activist Supreme Court, and see courts dictating districts, and so indirectly deciding elections, as anti-democratic. By striking down Democratic and Republican gerrymanders alike, the court may be trying to assure the public of its enduring impartiality. Some lower courts are even getting ahead of the Supreme Court. A panel of three judges on January 9th struck down North Carolina’s congressional district map on grounds of partisan gerrymandering, quoting Lewis’ comments verbatim in proving partisan intent, and ordering new maps. Although the Supreme Court granted a stay for North Carolina while it decides Gill and Benisek, federal courts are for the first time in decades challenging partisan gerrymandering.

The United States appears currently to be at a political nadir; rampant populism, fake news, increasing polarisation, the shadow of Russian interference and recently a government shutdown have combined into a singularly depressing cocktail. But for all the new problems which trouble that country, it may finally be cured of a chronic and particularly destructive sickness in its politics. Gill and Benisek offer two starkly different outcomes; on the one hand the court’s decisions could presage the continued stagnation of American democracy, but for now the signs allow us cautious optimism that they will rather bring about its radical reinvigoration.