Is Partisan Gerrymandering Unconstitutional?

Lessons on how politicians stay in power.


Darius / Dreamstime.com

Ronald Reagan was president when Michael Madigan, a Democrat, became speaker of the Illinois House in 1983. Reagan served two terms and died in 2004, and his name adorns schools, roads, parks and an airport. A generation has passed since he left the White House.

And Madigan? He is still speaker, and has been for all but two years since he started. He appears to be as permanent a feature of the Illinois landscape as the Mississippi River.

Illinois is a blue state, voting Democratic in the past seven presidential elections.

But the Democratic Party's control of the state House is not the simple result of its ability to satisfy the citizenry. Democrats have also had the help of district lines drawn to help them at the expense of Republicans.

In 2012, Democratic House candidates got 52 percent of the votes statewide but captured 60 percent of the seats, report political scientist Kent Redfield of the University of Illinois Springfield and policy consultant Cynthia Canary. In 2014, Democrats got 50.5 percent of the vote and 60 percent of the seats. This year, Madigan's party again won 60 percent of the races.

That's why Illinois Republicans may side with Wisconsin Democrats on one issue: partisan gerrymandering. In November, a federal district court struck down Wisconsin's legislative map on the ground that it unfairly favors Republicans, who dominate the Legislature. It had been more than three decades since a federal court invalidated a reapportionment plan for partisan bias.

In that case, the justices upheld an Indiana redistricting plan but affirmed that a gerrymander could be so biased toward one party as to violate the Constitution. The district court said the Wisconsin plan fits the bill.

Republicans captured the Wisconsin Legislature in 2010, just in time for the decennial reapportionment. They made the most of the opportunity. In 2012, GOP candidates got 48.6 percent of the statewide vote—but 60 of the 99 seats in the lower house, the Assembly. In 2014, they got 52 percent of the vote and 63 seats.

A scholar they had asked to analyze the plan before its adoption said Democrats would need at least 54 percent of the statewide ballots to regain control of the Assembly. It was a recipe for Republican control in good times and bad.

In 1986, the Supreme Court noted that when legislators are entrusted with redistricting, the results are bound to have a partisan tilt. But it concluded there is a limit to what is permissible. "Unconstitutional discrimination occurs," it said, "when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole."

Wisconsin Republicans insist they have a natural advantage: Democrats are concentrated in cities, limiting the number of districts in which they enjoy majority strength, while Republicans are more scattered.

But the federal court said these facts don't explain the GOP's formidable edge. It is instead the product of efforts to dilute the votes of Democrats by "packing" large numbers into a few districts, where they can't lose, and "cracking" the rest into many more districts, where they can't win.

The Supreme Court (which will get this case on direct appeal) has hesitated to intervene in such matters because of a knotty question: how to separate the acceptable and unacceptable types of partisan gerrymandering. The Democrats in Wisconsin offered a formula, devised by Nicholas Stephanopoulos, a University of Chicago law professor, and Eric McGhee, a research fellow at the Public Policy Institute of California, that permits simple assessments.

What they refer to as the "efficiency gap" is enough to lock in GOP control in Madison for a full decade under almost any realistic conditions. The court found that the reapportionment violates the First and 14th amendments by intentionally hobbling Democratic voters. Every affected citizen, it said, is "an unequal participant in the decisions of the body politic."

Illinois Republicans know how that works. For the moment, partisan gerrymandering favors the GOP because it holds power in more states. But Republicans have been its victims just as often as Democrats—and, if the Supreme Court doesn't curb the practice, will be again.

In the end, partisan gerrymandering is not really aimed at frustrating the party that is out of power. It's aimed at foiling voters who might want to remove politicians from office. As Michael Madigan can attest, it really works.

© Copyright 2016 by Creators Syndicate Inc.

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  1. Here in the South, the answer’s clear:

    100 years of Democratic gerrymandering — perfectly Constitutional.

    16 years of Republican gerrymandering — unConstitutional. How could you even think otherwise?

    1. Check out the change in Maryland’s districts as Democrats have pushed the state’s delegation from 4-4 to 7-1. They will probably try to get rid of the last R during the next reappointment.

      1. I used to live in MD-3. My house and my office, separated by 25 miles, were in the same district but my neighbors across the street were in a different one.

    2. Gerrymandering is Congressionally mandated at this point, a legacy of the civil rights era.

      1. They just gerrymander by race now.

        1. Wasn’t racial gerrymandering specifically declared unconstitutional by the SC? I guess maybe it’s different when the purpose is to over-represent minorities rather than to under represent them.

          1. The Democrats basically screwed themselves over with a provision of the Voting Rights Act, which MANDATES packing some districts with black voters to result in black politicians … and thus setting the stage for cracking the rest of the districts into Republican districts:

            On the one hand, the Voting Rights Act requires states with large minority populations to consider race when drawing district lines. On the other hand, the Supreme Court has ruled that the Constitution bars states from making race the predominant factor when they draw districts. Election law expert Rick Hasen has called this the “Goldilocks” principle, because states need to get the balance just right. Political realities make striking this balance even more complicated, because there is often a strong correlation between race and political party. African-Americans are overwhelmingly likely to support Democratic candidates, and whites are more likely to vote Republican.

  2. I have been saying for years, get a math whiz to divy up states using equal squares, rectangles or other shapes instead of these squiggly line congressional districts. Every Census, adjust the geometric shapes to cover the apportioned voting areas.

    This would make big cities have their fiefdoms split with squares, rectangles or other shapes and conservative America would finally have a non-partisan manner to determine congressional districts.

    1. And what about the rights of the shapeless and the zigzags?

      1. +1 Dirty Harry

    2. I have also been saying the same thing for years. It wouldn’t be that hard. Superimpose a grid on the map of the state and figure the population of each square. Form equal population districts out of the squares such that the shape of each district has the lowest possible ratio of boundary length to area.

      Something along those lines should be pretty easy to figure out and implement in a completely blind sort of way without any regard for demographics.

      1. There’s no way to take politics out of the equation entirely, since whoever gets to write the algorithm and move people around at the margins gets an advantage. It would get rid of the worse of the gerrymandering.

        1. Or, as some others suggested, keep towns or counties or some other preexisting political divisions all in one district (unless they are big enough to contain more than one whole district).

          Then get someone who is really nerdy and doesn’t care about politics to write the algorithm.

          Of course, as long as people are involved, someone will try to turn it to an advantage for their team. But it will pretty much get rid of the ability to engineer districts to yield specific electoral outcomes.

          1. You really can’t take the politics out of redistricting. Technology isn’t a solution. What could be done is to legislate that incumbents are deliberately disfavored. Which would, politically, be the way to restore competitive elections (which maximizes the power of individual voters/constituents). Chances of that happening – zero.

    3. Could you do that? Sure. But your asking entrenched interests to voluntarily weaken their hold on power. Good luck with that.

      Also, aesthetically I don’t like our nice, neat, straight-line state boundaries. Don’t get me wrong, I love right angles, but not in geography. Looks fake. If I hadn’t been to Colorado I might not believe it existed. Use geographic features like rivers and the local topography as much as possible. In cities I guess you’ll have to use streets, which are mostly on a grid system, but I don’t have to like it.

      1. Colorado isfake. But the land is occupies is real (and not rectilinear).

    4. Not squares no but a law that states the following would suffice…

      All districts must contain +/- 10% of the medial population per district
      District lines must be drawn according to a mathematical model which produces the absolute minimum sum of the ratios of district area to district perimeter.
      Any citizen may challenge a redistricting plan at any time up to 90 days prior to an election and if they can show that an alternate plan results in a lower sum of area to perimeter ratios then that plan must immediately be adopted.

      the reason for the mathematical calculation is a circle has the minimum possible ratio of area to perimeter and the closer to a circle you get, that is the fewer corners and edges a shape has the smaller the ratio of area to perimeter gets. So if you are forced to minimize that ratio while keeping the number of people per district close to the median you can have a mix of large and small districts but you will have a very hard time setting them up by political party because you won’t be able to draw highly irregular shapes.

      1. Souns like my plan. But I didn’t think of
        Any citizen may challenge a redistricting plan at any time up to 90 days prior to an election and if they can show that an alternate plan results in a lower sum of area to perimeter ratios then that plan must immediately be adopted.

        That is a great idea. Take the distracting away from the legislature entirely and crow source it.

        1. I am not sure crow sourcing would work. They are often distracted by roadkill being available.

          1. They are pretty smart, though. And have a good sense of geography.

          1. Very perceptive.

      2. See my post below. It is nearly impossible in irregularly shaped states, districts that could border lakes, rivers, mountains or other natural features. I had three geography PhDs take turns shooting down my ideas over a night of beers. It was very revealing.

    5. Won’t work. Think about what the coast of a river looks like. It makes a great natural boundary, but it destroys all of the regularity. FL, MD, probably LA can’t really use ‘regular geometric shapes’ to define borders because at any resolution you care to view a district at, some will have very small area:perimeter values others very large. Its a nearly impossibly hard problem to have a regular, contiguous area that is mathematically similar and has the same population in it.

      1. You realize that the district border could just run a few hundred yards past the low tide line right?

        Since no one lives in the water it wouldn’t impact anything about the district other than eliminating the p-a ratio

    6. Voting precincts will work. They’re roughly 1000 people each.

  3. I’m in favor of legislatures drawing districts based on simple things like geometry instead of on political affiliation. That’s good practices.

    That said, it always bothers me to see this fought out in court; it’s not like they’re ever going to rule redistricting itself unconstitutional, and if the practice itself is allowable I don’t see how you make it unallowable just by using bad practices for it.

    That is to say, I prefer that state governments have the right to be shitty (within the bounds of their own state constitutions of course) to enforcing some national standard of fairness.

    1. I hear many of Illinois residents outside Chicago are conservative and are dragged into congressional districts that make Illinois being Democrats nearly a sure thing. Like you say, they can move out of that state unlike when national lefty policies are implemented.

      1. I’m a former resident of southwest Illinois and indeed most of Illinois is pretty conservative but under the foot of Chicago, East St. Louis, etc. The fuckers are really smug about it, too. They don’t bother to conceal their disdain for the “bumpkins” in the counties outside Chicago.

        Not moving back there.

      2. I currently live in Illinois and my district covers huge chunks of land. I love on the SW side of Bloomington/Normal. When I first moved there in 2008, my congressman’s district covered from the south Chicago burbs and ended just south of my house (well over a hundred miles). The East side if town was a different district. 5 miles west of my house was a third. If you want to look at real gerrymandering, look at the 17th district map from 2003-2013 timeframe.

    2. Geography, not geometry. Pair together the people that are of the same region instead of the same mindset. My hometown of ~100k people was split into three different districts before the last round: the Indians on the west side were tossed into one centered around the Rutgers-Princeton corridor (currently the 12th), the center was portioned off into a Republican district centered around NW Jersey (now the 7th), and the east side was dumped into Hudson County’s district (now the 8th) so that district could grab additional Hispanic votes from Perth Amboy.

      If I had my way that wouldn’t be allowed. Districts should take on whole sub-state entities until they’re full, be they county, municipality, etc. Only cities that are too big for a single district should be represented by multiple congresscritters.

      1. Sounds like a three way split would be terrific for the rent seekers! Now you would have three congressmen falling all over themselves to provide pork for your hometown instead of just one. I would have thought the mayor and city council would be pretty pissed to have only one voice in Washiington or the state capital instead of three.

      2. I take the opposite view, especially to the extent that such districts have any autonomy. Pair together people of the same mindset, so when they fail at establishing libertopia, at least they aren’t bothering each other much.

  4. Redistricting is also a fairly complicated issue. You have to go in with a series of ranked preferences and objectives and then consider what would achieve those.

    For example possible objectives:
    -Protect Party X
    -Protect Incumbency(ies)
    -Devalue voting group X
    -Over Value Voting group X
    -Geometric sense (ie straight lines and square districts)
    -Respect cultural groupings and neighborhoods (ie don’t draw a line through cohesive NeighborhoodX it makes sense to keep them together)
    -Racial Representation
    -Proportionality (seats roughly match popular vote turn outs.
    –This could be tied to improving turn out by having fewer dead districts
    -Safe Seats vs Maximum seats

    Just to name a few off the top of my head. If we remove the bad actor ones (ie politicians protecting their parties/selves) we still have other issues to consider.
    -Predictable Geometric Shapes
    -Neighborhood basis
    -Racial Representation

  5. I’d like to states adopt a parliamentary style approach: take a statewide vote and award the seats proportionally. This would get closer to representing the will of the people than any approach involving carving a state up into districts.

    1. The article did not mention that until 1980 Illinois elected three members per state house district and used cumulative voting. So each voter got three votes to cast. They could put one vote for three different candidates, two votes to one candidate and one vote for another or cast all three votes for one candidate. That system was not a cure-all for gerrymandering and it does not guarantee that incumbents won’t be reelected but it made gerrymandering less of an issue.

      1. That’s similar to how it is in NH (I think it’s still this way). Towns are not split into different districts. And most towns have at least one rep to themselves. I don’t think you can vote multiple votes for a single candidate, though. You get one vote for each seat in your town or district.

    2. That’s not “parliamentary”, it’s “party list” proportional representation, which is about the worst system of all.

      1. OTOH, the Single transferable vote is a good system of proportional representation.

        The drawback is that it is somewhat complicated.

      2. I’m partial to the midpoint between party and STV.

        Each voter chooses a representative. If that representative has n voters, she’s in. Any number over n can be allocated by her to any other qualified candidate or candidates.

        If a voter is fond of a party, he gives his vote to the party leader. If a voter is fond of a person, he gives his vote to that person.

        This is how the House should be chosen, nationwide, without consideration for states or districts. The Senate, on the other hand, should be chosen by state legislature or state voters as a whole. The more different ways elected officials get to Washington, the better.

        1. I believe some method of voting a party slate is allowed where STV is used.

          I know it is possible in Australia for the federal senate and for Tasmania’s House of Assembly. I’m not sure about now, but when I lived in Tasmania the ballots listed party groups as Group 1, 2 etc without the party names, so if you wanted to vote a party slate you had to know the name of at least one of their candidates in your districts.

          Mind you, STV is not a panacea against shenanigans in electoral politics. Tasmania used to have five seven-member districts but in the 90s or early aughts they reduced them to five-member districts because they wanted to stop Greens from getting elected.

          Australia’s House of Representatives is chosen by instant runoff voting which is much better than “first past the post” but not as good as STV, IMO.

  6. The black democratic caucus loved gerrymandering when it guaranteed some number of majority black districts would put black representatives in the House. Giving a few seats to the republican party was a price worth paying.

    1. Shelia Jackson Lee agrees with this post.

      1. Really?

        Who read it to her?

  7. What about a general rule like:

    1) Draw the smallest possible rectangle around a district
    2) The length can be no more than 3x the width

    Wouldn’t stop it, but would put some constraints on what they can do.

    1. See my KY comment below. I think they should take it further to, divide the fewest political entities at each level as possible. They do counties now. Within counties, they shouldnt divide cities unnecessarily. And within cities, neighborhoods.

      1. Yeah, you combine a couple of these ideas and it does seem like there is a “common sense” math/logic solution that would limit the shenanigans.

        I guess the problem is incentives. Pols have huge incentives to gerrymander. Voters think it’s bad, but does anybody really vote on it? If somebody ran on anti-gerrymandering, would it generate any enthusiasm. I suspect not.

        1. Please do not use the phrase “common sense”

          It brings about the worst policies.

          1. Common sense redistricting: the people shall move around until they are in the “right” districts. You only have to draw the map once ever again.

  8. None of this comes as any surprise to me. It’s ridiculously obvious that the parties exist purely for their own sake. They’re not “public servants” or any of that other Tony-bullshit-speak. So of course on this matter they’re going to act purely for their own interests.

  9. The KY Supreme Court had a good ruling 20+ years ago that fixed a lot of this.

    They require the minimum number of counties to be split while redistricing.

    It still allows some gerrymandering, such as within Jefferson County (Louisville) or the fact that my county is split about 5 ways (taking advantage of the fact that the court only counts that as 1 split). The city of BG forms a nice D district while the county is split apart to diffuse the GOP strongholdness.

    If the GOP holds the state house until 2020, that will change next time around.

    1. That’s about the best way to do it as the simplistic “least perimeter” approaches don’t really limit much.

  10. I saw the article headline under Reason Staff, knew it was Chapman, skipped to the comments to ask if posting Chapman is a good way to get donations?

    1. There’s nothing objectionable about it – try reading the article.

      1. But what about my pre-formed opinions?

      2. It’s more important as a perfectly rational libertarian for some of us to emote our hatred at those feels heavy proggie fibertarians regardless of what actually is happening.

  11. Is Partisan Gerrymandering Unconstitutional?

    If the article’s headline is a question, the answer is almost always no.

    Find me something in the federal Constitution that describes how states are to draw congressional district lines, and then you can make this argument. But I don’t see it.

    1. 10th Amendment…

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

      States rights advocates always forget that bolded bit is there

      14th Amendment…

      No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      Combine those two bolded sections and it is not hard to rule that a redisticting plan violated individuals constutional rights by illegally devaluing their votes.

    2. Unless political affiliation is now a protected class, based upon the Constitution and multiple SCOTUS decisions, you are wrong.

      SCOTUS had held that redistricting is required and by definition, is a political process and as such, the court has refused to intervene arguing that the proper route for resolving these issues are at the ballot box, not within the court system.

      Narrow exceptions have been made if one can prove given district boundaries unfairly discriminate against people for race, sex, etc.

      But as “belonging to a political party” is ever changing and not a protected class, it’s absolutely Constitutional.

      Why the author appears unaware of this is beyond me.

      Disclaimer: protected districts reduce vote values and overall freedom (based upon the selectorate theory) and is therfore bad.

      But political problems should be solved by the voters. They will, so long as SCOTUS doesn’t add political affiliation to the protected classes, continue to pay for their ignorance and in a free society, that’s as it should be.

      In the aggregate, a society built from public representation, will always get the government they deserve.

      Reality’s a bitch of teacher.

  12. Missing alt-text…

    Es bleiben im Raum: Keitel, Jodl, Krebs und Buchdorf.

    1. A map of the NYC subway system with someone’s dirty fingernail pointing at downtown Brooklyn seems like an odd choice to accompany this post.

  13. “The Supreme Court (which will get this case on direct appeal) has hesitated to intervene in such matters because of a knotty question: how to separate the acceptable and unacceptable types of partisan gerrymandering”
    This is really simple: gerrymandering by my party is constitutional, gerrymandering by other parties is unconstitutional. Next question.
    And as long as we are throwing out alternatives, why not group by zip codes? It is more likely that the USPS has considered politics as low a consideration as possible, rather than near the top of the list. Geometric shape based solutions founder against geography, and minor details like circles cannot cover evenly etc. Or just read the constitution again, and leave it to the states? How is this different from mandating proportional allocation of electors?

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  16. Fixing this is pretty simple: define an upper limit on the ratio of the perimeter of a district to the square root of its area.

    Alternatively, and perhaps better, give legislators the power to determine the center of each congressional district and then assign each voter to the closest center.

    Computer software can still help define districts under those constraints, but abuse is limited.

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