Why Gerrymandering Is About To Get a Whole Lot Worse

The law, lawyers, and the court.
Nov. 9 2012 5:14 PM

It’s Appalling that Gerrymandering Is Legal

And if the Supreme Court guts the Voting Rights Act, it’s going to get a lot worse.

Gerrymandered congressional districts in Ohio
Gerrymandered congressional districts in Ohio

The maps are amazing: Ohio and Pennsylvania, states that went blue for Barack Obama, have congressional delegations that are heavily red. As David Weigel pointed out Wednesday, the maps show how gerrymandering saved the Republican majority in the House. (Even though Obama won Pennsylvania by 5 points, Republicans took 13 of 18 House districts. In Ohio, Obama won by two and the GOP kept 12 of 16 House seats.*) It’s outrageous. It’s also perfectly legal, and Democrats do it too, when given the chancejust ask the Republicans in Illinois. Gerrymandering is an American game both parties play because the courts allow it and the voters don’t punish them for it.

On Friday, the Supreme Court agreed to hear a challenge to the Voting Rights Act, the only real bulwark against gerrymandering still standing. With the election over, it was inevitable that such a case would move onto the court’s docket. That doesn’t make it good news.

As Robert Draper pointed out in a big piece for the Atlantic in October, the first gerrymander lover was Patrick Henry in 1788. Fast forward to 1962, when the Supreme Court addressed a related but different problem: The lopsided size of the congressional districts in states like Texas, which allowed one legislator to represent 200,000 people while his colleague next door represented 900,000. The court said no to this kind of line drawing, enshrining the principle of “one person, one vote.” Then in 1986, the court also ruled in Davis v. Bandemer that drawing lines for the sake of partisan advantage was unconstitutional. The opponents of a political map would have to show “continued frustration of the will of a majority of voters or effective denial of a minority of voters of a fair chance to influence the political process.”

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That sounds lovely but went nowhere. As Columbia law professor Nathaniel Persily pointed out when I called him, ever since that 1986 decision “claims of partisan gerrymandering have always been brought up but they never win.” Not in federal elections, anyway. In a fractured 2004 decision, the Supreme Court upheld a gerrymander in Pennsylvania by Republicans that looks a lot like the one that produced this year’s crazy map. Four conservatives on the court said that gerrymander claims weren’t the concern of the courts at all. The fifth, Justice Anthony Kennedy, said that in theory somebody somewhere could come up with a legitimate theory for challenging partisan gerrymandering, but so far, he couldn’t see it. Two years later, the court let Texas keep a statewide gerrymandered map, too. As Persily says, “if the facts in those two cases weren’t egregious enough, it’s hard to see a set of facts” that would be, from the court’s point of view.

Gerrymandered congressional districts in Pennsylvania
Gerrymandered congressional districts in Pennsylvania


That’s the legal backdrop for the safe districts Republicans have drawn for themselves since the statehouse gains they made in 2010—which, happily for them, was also a giant redistricting year because it followed the latest census. Take a look at this map: It shows that Republicans control the legislature and the governor’s office in 18 states, including Wisconsin, Ohio, Pennsylvania, Virginia, Florida, and North Carolina. The Democrats have the same hold on only six states. In the others, power is divided or commissions draw the districts. The upshot, in light of population distribution, Persily said, is that Democrats control the line drawing for 44 congressional seats and 885 state legislative seats, while Republicans control the line drawing for 210 congressional seats and 2,498 state legislative seats.* No wonder the House stayed safely in Republican hands even though the presidency and the Senate did not. According to a Washington Post analysis, it is likely that the GOP will hold a 35-seat majority, even though the Democrats running for the House edged out their opponents, collectively, in the popular vote.

The only real constraint on the parties at this point is the Voting Rights Act, which Congress last renewed for 25 years in 2006. (President George W. Bush signed that bill—this is, after all, one of the nation’s most important civil rights laws.) Two provisions matter: Section 5, which forces states with a history of segregation to “preclear” their line-drawing plans with the Department of Justice or go to court, and Section 2, which allows the Justice Department (and regular people) to challenge districting plans if they dilute the voting power of racial minorities. In the 1990s, the Voting Rights Act prevented the Democrats from getting too greedy about gerrymandering, because the Justice Department used its power to push for majority-minority districts, which sent many black and Latino lawmakers to Congress, but also left safe seats for Republicans. After the 2010 election, Yale law professor Heather Gerken predicted that the Voting Rights Act would modestly constrain Republicans in this last redistricting cycle, and Persily says that’s about right—it could have gone down even worse for the Democrats if the GOP hadn’t been checked by the directive to protect in some way the power of minority votes. The state that had the attention-grabbing legal battle was Texas, which managed to take population growth that was largely Hispanic and black and create four new congressional districts full of Republican voters. As the plan bounced all over the courts, the map mostly stayed in place for 2012.

Texas may have to draw the lines again in 2014, but that depends on the Supreme Court. The case the justices agreed to hear later this term comes from Shelby County, Ala. Post election, the backdrop will be the increasing muscle of Latino and black voters nationwide, with all the demographic evidence of how they helped boost President Obama back into office.

But let’s not forget who draws the lines for redistricting—state lawmakers (and in a few states, commissions appointed by the states). These legislators are often chosen in midterm and off-year elections in which the composition of the electorate has tended to be older and whiter than in presidential election years. That helps explain why the Democrats took a beating in 2010. The lesson is that midterm elections can have big consequences. If Democrats ever want to win back the House, they have to get their people to the polls in the off years. And if the Supreme Court guts the Voting Rights Act, it will be more important than ever.

Correction, Nov. 10, 2012: This article originally quoted Nathaniel Persily as saying Democrats and Republicans control a certain number of congressional seats. They control the line-drawing process for those seats. (Return to the corrected sentence.)

Correction, Nov. 12, 2012: This article misstated the number of House seats allotted for both Pennsylvania and Ohio and how many of those seats Republicans control. In Pennsylvania, Republicans control 13 of 18 seats, not eight of 12. In Ohio, Republicans control 12 of 16 seats, not 14 of 18. (Return to the corrected sentence.)

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