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The Legal and Representative Implications of Gerrymandering in the United States
By
Andrew Wyatt
Mount St. Mary’s University
Honors Research Project
20 April 2016
Project Mentor:
Dr. Michael Towle, Chair of the Political Science Department
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Abstract:
How has the American practice of gerrymandering affected representation in the United
States? This study evaluates the relationship between gerrymandering and representation in the
political process. The definition of gerrymandering will be coupled with a brief history behind
this practice to demonstrate the purpose of altering legislative district lines. I will then
summarize the steps needed to redraw district lines and the political actors that play an active
role in this process. Using a historical lens, I hope to demonstrate that gerrymandering dilutes the
value of the individual vote and limits the competitiveness of elections in the United States,
which results in unfair representation for many Americans across our country. To assert these
claims, I will focus on voting patterns, election outcomes, and Supreme Court cases between
1982 and the present day. The project will conclude with an overall assessment of
gerrymandering and a few recommendations for our electoral system.
Introduction:
Gerrymandering involves the manipulation of legislative districts to favor one particular
group, political party, or social class in order to achieve a desired political outcome (Oxford
Dictionary 2015). The term originates from the redistricting plan put forth by the Massachusetts
state legislature prior to the 1812 election cycle. At the time, congressional districts aligned with
contiguous towns that had roughly the same number of inhabitants (Districts are still required to
have roughly the same number of inhabitants). To maintain control of the legislature, the
Democratic-Republicans devised a redistricting strategy that isolated Federalist voters in Essex
County in the northeastern part of the state. Elkanah Tisdale of the Boston Gazette drew a
political cartoon to represent this district as a salamander with wings, a beak, and claws that
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“slithered along the border of Essex County”. The prefix “Gerry” was combined with the word
salamander to reflect the redistricting law that was reluctantly signed by then Governor Elbridge
Gerry, creating the word “gerrymander”. Initially, the first gerrymander was a minor success as
29 Democratic-Republicans were elected to the state legislature compared to 11 Federalists.
Despite these gains at the state level, Gerry lost his reelection bid for Governor and the
Democratic-Republicans lost seven of their eight seats in Congress. In 1814, the Federalists
regained control of the state legislature by winning 29 out of 40 seats (Klein 2011). Although
this attempt by the Democratic-Republicans achieved little success, the idea of redrawing district
lines for a political advantage became a staple of the electoral process. This practice continues
today as legislative districts at the congressional and state levels are altered to cater to specific
parties. In 2012, for example, 73 Republicans were elected to Congress across seven states with
16.7 million votes. However, 16.4 million votes cast for Democrats in those states yielded only
34 representatives in Congress. Sam Wang of the New York Times writes, “Given the average
percentage of the vote it takes to elect representatives elsewhere… that combination would
normally require only 14.7 million Democratic votes. Or put another way, 1.7 million votes were
effectively packed into Democratic districts and wasted” (Wang 2013). Based on this disparity, it
appears that voters were deliberately isolated during redistricting to achieve a certain outcome.
Gerrymandering is a tactic used within a collective process known as redistricting, which
usually occurs when state and congressional boundaries are redrawn for the purpose of
equalizing the populations within those areas. According to a series of Supreme Court decisions
in the early 1960s, legislative districts at the local, state, and congressional levels are supposed to
be roughly the same population (Levitt 2015). This process usually takes place following the
most recent census as new information regarding the population is released. Once this
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information becomes available, state legislators are presented with the opportunity to redraw
district lines in such a way that betters their party’s chances during the next election cycle.
Historically, legislators have used either cracking or packing as a means to win at the federal and
state levels. Cracking involves the splintering of targeted populations into small groups across
several districts in order to dilute their impact on a single election within one district (Levitt
2015). For example, if a large concentration of white-collar workers lived in an unincorporated
area that favored one political party, that area would be split into three or four different districts
to minimize their voting power. On the other hand, packing is the exact opposite of cracking and
is designed to concentrate one particular group into one area, which creates a majority-minority
population within one district. This allows another party to drain most of the voting power from
the rest of the state, in exchange for one district that is dominated by the opposing party (Levitt
2015).
Literature Review:
Before congressional and state boundaries can be drawn, redrawn, or even implemented,
they must first adhere to a set of criteria that is determined at the federal and state levels.
Professor Justin Levitt articulates, “Those who have the redistricting pen don’t have a blank slate
for drawing the lines. Various rules and constraints limit where district lines may or may not be
drawn” (Levitt 2015). At the federal level, congressional and state legislative districts must have
a roughly equal population and adhere to certain stipulations under the Voting Rights Act of
1965. To meet the equal population requirement, a strict standard of “as nearly as practicable” is
applied to all congressional districts; meaning states must make a concerted effort to draw
districts with nearly the same number of people. An ideal population for each district is based
upon the total population of the state divided by the number of districts. Any district that is either
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above or below this figure must have a justified reason under state law. At the state level,
districts must be substantially equal, meaning that largest and smallest districts must be no more
than 10 percent apart in terms of the population (Levitt 2015). Gordon Baker notes that these
discrepancies in district populations are really the result of imprecise estimates by the United
States Census Bureau. Baker argues, “For one thing, no census can provide a perfect count of
population. Births, deaths, and mobility reveal a state of flux rather than a static pattern” (Baker
1990). As a result of these inaccurate statistics, some states are still penalized during redistricting
for having a minimal degree of variation between their largest and smallest districts (in terms of
population).
Baker cites the 1969 case of Kirkpatrick v. Preisler in which the Supreme Court struck
down a Missouri redistricting plan despite a miniscule variation of 1.6% between district
populations. Justice William Brennan insisted that “states must make a good faith effort to
achieve precise mathematical equality and that any disparities, no matter how small, had to be
justified” (Kirkpatrick v. Preisler, 394 U.S. 526 (1969)). Baker argues that states cannot be this
precise when drawing district boundaries without accurate information and that this kind of
intervention by the Court system can neglect political realities in order to achieve “fairness”
(Baker 1990). Baker’s argument is relevant to this discussion because, under this approach that is
still used by the Supreme Court, it becomes more difficult to distinguish between actual
gerrymandering that is done intentionally and a minor discrepancy at the state or congressional
level.
As more districts are consistently redrawn to meet this “state of flux”, the connection
between elected officials and their constituents is diminished, according to some scholars who
examine reelection patterns and outcomes. Antoine Yoshinaka and Chad Murphy argue that
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newly drawn districts disrupt the connection between incumbents and their constituents prior to
election cycles. In their view, partisan mapmakers “are able to produce significant instability and
break the representational link by causing incumbents to retire” (Yoshinaka and Murphy 2011).
The consistency and stability of a particular candidate is necessary to maintain a strong
relationship between the constituent and the incumbent. Incumbents can facilitate the knowledge
of their constituents’ interests into different policy areas, which allows the constituents to hold
their representatives accountable for the decisions that are made. Yet, this process is diminished
through elements of uncertainty that follow the redistricting process.
These elements come in two forms, with one being a lack of knowledge by the incumbent
about his or her newly formed district. They will not have the same level of “familiarity” with
the district which, “generates transaction costs for representatives who must quickly navigate the
new constituency ahead of the next election” (Yoshinaka and Murphy 2011). The other form of
uncertainty relates to the constituents that have suddenly been placed in a new district with a new
representative. In this situation, “displaced voters” must devote their own time and effort to
understand their new representative’s positions on specific policy issues. However, Yoshinaka
and Murphy point out that the connection between these new constituents and incumbents is not
nearly as strong as the relationship between the incumbent and their supporters. The reason for
this is, as Andrew Rehfeld acknowledges, “A representative is accountable for this group
(constituents of the incumbent candidate) because this group authorized him to act in the first
place” (2005).
Other scholars, including Bill Bishop, are opposed to the idea that gerrymandering and
redistricting cause rifts in the political process. Bishop, author of The Big Sort, states that
gerrymandering is a popular and convenient argument that is used to explain our political
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divisions. Bishop notes that legislators do redraw their districts to gain an advantage and in many
cases, public opinion does not align with the beliefs of congresspersons or state legislators who
represent these districts. Despite this assertion, Bishop claims, “Americans segregate themselves
into their own political worlds, block out discordant voices, and surround themselves with
reassuring news and companions” (Bishop 2008). He believes this process of selective exposure
and the breakdown of systems that provide order, like the family, religion, and societal traditions,
have truly divided our country. As an end result of these factors, “America has become a
breeding ground for like-minded, homogenous thinkers who squelch dissent” (Bishop 2008).
As Americans, we have the capability to pack up and move to another area in order to
live a “better life”. Bishop notes that Americans choose to migrate on the basis of self-selection
rather than exploration. In other words, we select a community that reflects our own beliefs and
values. Rarely do we seek out a community that could benefit from our contributions rather than
our stance on certain policy issues. Social psychologist David Myers calls this phenomenon
“assortative mating”, or the tendency of similar types to pair up. Through our wealth, education,
and our ability to move, we can now “seek out those places and people that are comfortably akin
to ourselves” (Bishop 2008). These decisions by regular Americans to migrate were not political
choices, yet these actions certainly had an impact on the political landscape.
In The Realities of Redistricting, Jonathan Winburn articulates that the actions of state
legislatures, rather than constituents, have a greater impact on voting patterns and the makeup of
individual districts across the United States. Winburn notes that the authority for redistricting is
usually vested in the legislature, it is treated like any other form of legislation, and it constitutes a
gubernatorial veto to check state legislators (Winburn 21). Legislators use three different
strategies during the redistricting process to achieve certain outcomes. The first strategy involves
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a partisan gerrymander, where district lines are redrawn to maximize the number of the seats for
the party that is in control of the process. This circumstance calls for the party’s supporters to be
shifted from safe districts (areas they will likely win) into competitive districts in order to offset
the voters of the opposing party. The second strategy concerns the protection of incumbent
candidates, where partisan voters are again placed in the most competitive districts. The only
change involves the least competitive districts where partisan support is swapped between
parties. The final strategy called “neutral redistricting” is used by bi-partisan commissions to
account for “neutral” factors like population change. Commissions are forbidden from
considering incumbent protection and partisan factors, which acts as a separate safeguard against
gerrymandering (Winburn 2008).
In addition to this tactic, state legislators are placed under a variety of constraints that
control the drawing or re-drawing of district lines. To moderate the redistricting process, the
American court system has relied on a set of principles that outline the legal parameters for
redrawing district lines. The first parameter concerns contiguity where a constituent can travel
from one point to another within the district without leaving that district. 49 of the 50 states
require that at least one legislative district at the state level be contiguous while federal law
requires all congressional districts to be contiguous. The second parameter requires adherence to
political boundaries like towns, cities, or counties when drawing legislative districts. District
lines should not separate these areas, meaning a town or city in its entirety should be within the
boundary of a legislative district. 42 states mandate this practice for their state districts, yet only
19 states impose this kind of constraint on their congressional districts. Furthermore,
communities of interest (a group with a common interest that would benefit from legislation)
should be maintained and district lines should not cut through these areas. Only 24 states at the
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state level and 13 states at the congressional level keep communities of interest together during
redistricting. The fourth guideline points to compactness, which deals with how close residents
of a particular district live to another. A district is thought to be more compact if more people
live close to one another while a less compact district is more spread out over a larger area.
Three categories have been used to measure compactness through their boundaries, the
dispersion of the district, and housing patterns. Smoother boundaries on a drawing depict a more
compact district while squiggly or jagged boundaries portray a less compact district. This is
directly related to dispersion, which measures the proximity of each point to the core of the
district. If more pieces emerge from the core, the district is less compact and more people are
likely to live farther away from the core. As for housing patterns, districts that run through urban
areas should align with the patterns designated by the city to avoid packing people into a smaller
area or breaking up a population into several areas (Levitt 2015). These guidelines are not always
acknowledged by state legislators, who rely on gerrymandering to isolate or break apart certain
voting blocs.
Using election data and legal precedent from judicial decisions, I will highlight important
examples of these tactics and how they limit representation both in the political process and
before the law.
Analysis: Part I: Legal Findings Since 1986
In 1982, Democrats in the Indiana state legislature challenged the state’s 1981
reapportionment scheme on the basis of political gerrymandering. The Democrats argued that the
plan unconstitutionally diluted their votes in important districts and violated the Equal Protection
Clause of the 14th Amendment. The case was appealed to the Supreme Court, which had ruled in
Baker v. Carr (1962) that legislative apportionment issues and equal protection issues pertaining
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to reapportionment were justiciable. The apportionment plan came into force during the 1982
state elections, where Democrats won 52% of the house vote but only 40 out of the 100 seats.
In the case of Davis v. Bandemer (1986), the Supreme Court held political gerrymandering to be
justiciable, but the Court did not strike down Indiana’s plan because it failed to meet the standard
of proof of a gerrymander. In plurality opinion led by Justice Byron White, the plaintiffs were
required to prove intentional discrimination against a specific group and an actual discriminatory
effect on that group (Hess 1987). In addition, the electoral power of a voting group is not
unconstitutionally diminished through a reapportionment scheme and a failure of proportional
representation is not impermissible discrimination. Rather, unconstitutional discrimination
occurs “only when an electoral system is arranged in a manner that will consistently degrade a
voter’s or group of voters’ influence on the political process” Unfortunately, the Court could not
decide on a means to measure “unconstitutional discrimination” that attempts to degrade a
voter’s influence on the political process (Davis v. Bandemer, 478 U. S. 109 (1986)).
The Bandemer decision constituted a standard of review that was left open to discussion
in partisan cases, which made it much more difficult to apply. Thus, it is important to distinguish
the Bandemer decision from later redistricting cases involving race because the Court could
apply a standard of strict scrutiny in cases involving race. Strict scrutiny requires that a
legislature can only pass a law affecting racial or ethnic groups if the law is necessary to help
“further a compelling government interest and the law must be narrowly tailored to achieve said
interest” (United States v. Carolene Products, 1938). In the Carolene Products decision, which
was one of the many cases that tested the constitutionality of the New Deal, the standard of strict
scrutiny was created for two circumstances. First, cases that involved the infringement of a
fundamental constitutional right, particularly rights found in the Bill of Rights or those
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designated by the Court, could be reviewed using strict scrutiny. Second, in cases where
government action applied to race or national origin, strict scrutiny could be used as a method of
review. This standard of review would be applied to racial gerrymandering cases as the issue of
“majority-minority” districts surfaced in the 1990s.
Following the 1990 census, North Carolina became entitled to a 12th congressional
district in the United States House of Representatives. The general assembly completed a
redistricting plan to account for the extra district, but that plan included just one black “minority-
majority” district. Attorney General Janet Reno rejected North Carolina’s plan (the state’s plan
was under the control of the Justice Department in order to comply with the Voting Rights Act),
which prompted the legislature to create a second plan containing two “minority-majority”
districts. Residents argued that one of the districts, which lingered along a two-lane interstate,
violated the Equal Protection Clause given its irregular shape and that it constituted a racial
gerrymander that ensured the election of black representatives. In the case of Shaw v. Reno
(1993), Justice Sandra Day O’Connor articulated, “When a district is created to effectuate the
common interests of a racial group, elected officials believe their primary obligation is to that
group rather than the whole constituency” (Shaw v. Reno, 509 U. S. 630 (1993)). O’Connor
noted that this form of representation is “antithetical” to representative democracy. North
Carolina’s district may have been race-neutral on its face, but given its irrational shape, it could
only been seen as an attempt to segregate voters based on race and therefore violated the Equal
Protection Clause. In Shaw, the Court determined that racial gerrymandering must be held to the
standard of strict scrutiny under the Equal Protection Clause.
The standard of strict scrutiny is used in some cases to determine the constitutionality of
laws pertaining to race that are passed at the federal and state levels. In the Shaw decision, the
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Court noted the application of race in a redistricting plan qualified as a suspect classification,
meaning a group of individuals that have been historically subjected to discrimination were
involved (Shaw v. Reno, 509 U. S. 630 (1993)). Therefore, the Court needed to establish whether
or not a redistricting plan could achieve a compelling government interest through two-majority
minority districts or if this merely qualified as discrimination towards other voters. The case was
remanded to a federal district court in North Carolina, which determined that the plan was drawn
to comply with the Voting Rights Act of 1965 and therefore constituted a compelling government
interest (Shaw v. Hunt, 861 F. Supp. 408 (E.D. N.C. 1994). In 1996, the Supreme Court reversed
this decision because the Voting Rights Act of 1965 did not call for race based redistricting nor
did it demand the awkward shape of the district. Thus, the plan did not meet a compelling
government interest and violated the Equal Protection Clause (Shaw v. Hunt, 517 U.S. 899
(1996)).
To meet the demands of the Voting Rights Act of 1965, redistricting in congressional and
state districts must be drawn using precise guidelines. The first requirement, a strict standard of
“as nearly as practicable”, is applied to all congressional districts and it requires states to make a
concerted effort to draw districts with nearly the same number of people. As mentioned earlier,
districts must be substantially equal, which means the largest and smallest districts must be no
more than 10 percent apart in terms of the population. However, Levitt notes that, “This is not a
hard line: a state plan may be upheld if there is a compelling reason for a greater disparity and
smaller disparity may even be struck down if no compelling reason exists” (Levitt 2015). A
greater disparity could be created by the geography of the district and would likely be upheld; yet
a smaller disparity that indicates a racial or ethnic disadvantage would be struck down. This
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concept is directly connected to the second federal regulation on redistricting found in Sections II
and V of the Voting Rights Act of 1965.
Section II of the Voting Rights Act of 1965 blocks district lines that deny minority voters
an equal opportunity to “participate in the political process and elect a representative of their
choice” (Levitt 2015). This statute can be applied to both an intentional denial of this opportunity
or an unintentional end result of an election. In Thornburg v. Gingles, the Supreme Court ruled
that a North Carolina redistricting plan discriminated against blacks by forming cohesive
minority blocs in districts where white voters would consistently defeat black candidates. The
Court produced a three-pronged assessment, known as the Gingles conditions, to test whether or
not decisive political power has been stripped from a minority bloc that is at risk for voter
discrimination. The test requires that a minority group prove that: 1) it is sufficiently large and
geographically compact to constitute a majority in a single-member district, 2) it is politically
cohesive, and 3) in the absence of special circumstances, bloc voting by the majority usually
defeats the minority’s preferred candidate (Thornburg v. Gingles, 478 U. S. 30 (1986)). Based on
these terms, Section II was designed to prevent packing diverse voting populations into voting
districts.
Section V of the Voting Rights Act of 1965 applied in parts of the country where a “test or
device” was used to screen would-be voters, and where less than half of the eligible population
either registered or voted between 1964 and 1972. This section designates that any change to
voting procedures, including a redistricting plan, could not be used without prior approval from
the Department of Justice or a federal court (Levitt 2015). This is called preclearance and it
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acted1 as a form of coverage for states taking steps to improve their opportunities for minority
voting. Under this formula, new district lines would be pre-cleared if the plan did not dilute
minority votes and if the plan did not cause retrogression. A plan would likely cause
retrogression if it presented a lesser opportunity for minority voters to elect a candidate of their
choice in comparison to the existing district map (Levitt 2015). The Court would rely on these
guidelines in tandem with the standard of strict scrutiny as similar cases surfaced in Georgia and
Texas.
After the Shaw decision, the Supreme Court was presented with another awkwardly
shaped district that raised concerns from white voters in the state of Georgia. After two previous
attempts at redistricting failed to receive preclearance from the Justice Department, Georgia’s
General Assembly created three black majority-minority districts. White voters filed suit over
what came to be known as a “racial monstrosity” as Georgia’s eleventh district stretched from
city of Atlanta all the way to the Atlantic Coast. In the case of Miller v. Johnson (1995), the
Court determined that Georgia’s redistricting plan was motivated by “a predominant, overriding
desire” to assign black populations to the eleventh district, which permitted the creation of a third
majority-minority district. It was determined that the district failed to meet the standard of strict
scrutiny because the legislature subordinated traditional race-neutral districting principles like
compactness, contiguity, and respect for political subdivisions. Justice Kennedy duly noted, “In
some instances, a reapportionment plan may be so highly irregular and bizarre in shape that it
rationally cannot be understood as anything other than an effort to segregate voters based on
1In the decision of Shelby County v. Holder (2013), the Supreme Court held that it is unconstitutional to require states, which used a test or device to screen voters between 1964 and 1972, to seek preclearance from the Department of Justice or a federal court. Before 2013, Section V of the Voting Rights Act of 1965 mandated that certain states submit their redistricting plans to the Department of Justice.
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race” (Miller v. Johnson, 515 U. S. 900 (1995)). The district “joined metropolitan black
neighborhoods with the poor black populace of coastal areas over 260 miles away” (Cornell
University Law Institute 2015). In this case, the Court decided that racial gerrymandering is
unconstitutional under the Equal Protection Clause of the 14th Amendment.
This understanding would be put to the test as the Texas state legislature suddenly redrew
its district lines in 2003. Following the 2000 census, the Texas state legislature failed to redraw
its district lines in time for the 2002 mid-term elections. The United States District Court for
Eastern Texas completed the process, which resulted in an additional two seats for the
Republican Party in Congress and Republican control of the state legislature. In 2003, the state
adopted a new plan that ultimately gained six more seats in Congress for the Republican Party
after the 2004 mid-term elections. Prior to the election, Governor Rick Perry was sued in federal
district court by several groups and organizations on the basis of partisan gerrymandering and
racial gerrymandering. A 2004 plurality opinion in the Supreme Court case of Vieth v. Jubelirer
determined that partisan gerrymandering claims are non-justiciable. The Court noted partisan
claims did not have clear standards for reaching a ruling, yet, “partisan gerrymanders were
incompatible with democratic principles” (Vieth v. Jubelirer, U.S. 1580 (2004)). Essentially, the
justices were split on whether or not partisan claims could be raised in court, but partisan
gerrymandering was identified as a significant problem. This decision would have significant
implications for the state of Texas as it attempted to redistrict in 2003.
In the case of Rick Perry and Republicans from Texas, the United States District Court
for Eastern Texas found that a 2003 redistricting plan put forth by the Texas state legislature and
approved by the Justice Department did not violate the Constitution on partisan grounds in light
of the Vieth decision. However, the League of United Latin-American Citizens argued that the
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plan violated Section II of the Voting Rights Act of 1965 because it diluted minority-voting
strength to achieve a partisan advantage in the legislature. In the case of The League of United
Latin American Citizens v. Perry (2006), the Supreme Court decided that Texas’ plan did not
violate the Constitution. Instead, District 23 (one of the newly drawn districts) did violate the
Voting Rights Act of 1965 given the way it was drawn. Justice Kennedy stated District 23 was
drawn to deny Latino voters an opportunity to vote as group and elect a candidate of their
choosing. This violated Section II of the Voting Rights Act of 1965, which blocks district lines
that deny minority voters the right to elect a candidate of their choice. (The League of United
Latin American Citizens v. Perry, U.S. 204 (2006)). In this case, the Court based its decision on
the Voting Rights Act of 1965 to strike down a racial gerrymandering issue.
The Court demonstrated through the League of United Latin American Citizens decision
that it is unwilling to strike down any awkwardly shaped or controversial voting districts unless
race is a factor. This signifies a level of inconsistency in the Court’s interpretation of
gerrymandering as racial cases are practically given preference to partisan issues. Moreover, the
Court has developed a clear and concise method of review for racial cases, but no such method
exists for partisan issues that affect voters in each electoral district. To address this
inconsistency, several states have made a concerted effort to stop gerrymandering in state
legislatures. For example, the state of Arizona adopted Proposition 106 to its state constitution in
order to end gerrymandering and improve participation in elections at the state and congressional
levels. The proposition created an independent commission that would oversee the redistricting
process for state and congressional districts (Art. IV, Sec. 1. Const. of Arizona). Arizona’s
independent redistricting commission (AIRC) implemented new boundaries after the 2010
census, but the state legislature challenged the map and sued in federal district court. The
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legislature indicated that the Elections Clause of the U.S. Constitution defined the word
“legislature” as only the representative body that makes the laws of the people. This supposedly
precluded an independent commission, but on appeal the Supreme Court held no constitutional
barrier existed to prevent the people from embracing that form of lawmaking (Arizona State
Legislature v. Arizona Independent Redistricting Commission (2015)). Seven states, including
Arizona, currently have these commissions and the use of these non-partisan bodies is no longer
a constitutional issue following this decision (Wolf and Korte 2015). However, the question still
remains as to whether or not more states will follow suit and form their own independent
commissions to eliminate partisan gerrymandering altogether.
To illustrate the effects of the Court’s indecisiveness on partisan cases, voting patterns
and election outcomes after the 2010 census will be examined in this next section.
Analysis Part II: Evidence from the States after the 2010 Census
This section will examine five states that took part in the redistricting process following
the 2010 census, which produced some highly irregular shapes for their voting districts.
Maryland, Pennsylvania, North Carolina, Texas, and Idaho will be profiled using election results
and graphics of individual voting districts.
Analysis of Voting Patterns and Election Outcomes
Maryland is considered a Democratically dominant state. It consists of two Democratic
senators (Ben Cardin and Barbara Mikulski) and seven of the eight congressional representatives
are Democrats. However, these indicators are misleading as evidenced by voter registration.
According to the 2014 gubernatorial primary, Maryland had approximately 3.4 million registered
voters but 1.3 million people (38.6% of the eligible voting population) did not align themselves
with the Democratic Party (MD State Board of Elections 2014). However, the Democratic Party
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controls seven of the eight seats allocated in the House of the Representatives. To understand
why this gap exists, look no further than irregularly shaped districts in the central and western
parts of the state. For example, congressional district 3 held by John Sarbanes (D) stretches 38
miles from Towson (north of Baltimore City) to the state capital in Annapolis. Nicknamed the
“Praying Mantis”, the district runs down through Baltimore before it absorbs eastern Howard
County and the city of Glen Burnie in Anne Arundel County close to the Chesapeake Bay (see
Appendix A). All of these areas heavily supported Barack Obama for president in 2012 (The
Washington Post 2012).
The district omits the rest of Anne Arundel County, including Fort Meade, Crofton, and
Severna Park before it links up with Annapolis at the southern tip of the district. This was clearly
done to spread around Democratic votes into two surrounding districts held by Congresswoman
Donna Edwards (D-4) and House Minority Whip Steny Hoyer (D-5). District 4 absorbs Odenton
(northwest of Annapolis) and Crofton (west of Annapolis), while district 5 comprises St. Mary’s
County (See Appendices H and I). These schemes generated very lopsided results during the
2012 mid-term elections as Hoyer carried his district with 69.4% of the vote, while Edwards
easily won with 77.1% of the vote in District 4 (FEC 2012). But what is the point of this tactic?
By dispersing Democratic support, the party can win more seats in the House and “pack” support
for the opposition into one district. That district, MD-01, comprises the Eastern Shore of
Maryland and is held by Congressman Andrew Harris. In 2012, Harris was reelected to the only
Republican seat for Maryland’s congressional delegation with 63.4% of the vote (FEC 2012).
Thus, the dominant party in a particular state can “sacrifice” one district in order to gain total
control of the additional seats through redistricting. By packing voters of one party into an area,
the other party can easily win districts that would be more competitive without packing. This
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practice is illegal on the basis of race as evidenced by the Shaw and Miller decisions of the
1990s, but it is hardly challenged with regard to party preference.
As a contrast to packing, the state of Pennsylvania tried to crack apart Democratic voting
blocs during the 2014 mid-term elections. A cracking plan was used by the Pennsylvania state
legislature to help widen the margin of victory for a Republican candidate. Patrick Meehan was
first elected to Congress in 2010 prior to the redistricting cycle that was influenced by the 2010
census. In November of 2010, Pennsylvania’s seventh congressional district consisted of a
rectangular block that absorbed King of Prussia, Drexel Hill and Springfield (see Appendix B).
Meehan won a surprise victory with 54.9% of the vote (FEC 2012) in an area that supported
Barack Obama for president in both 2008 and 2012 (The New York Times 2008, 2012). By the
2014 mid-term elections, the district was one of the least congruent and least compact in the
country as it meandered around large suburbs like West Chester, Chester, and the city of King of
Prussia (See Appendix C). In the 2012 presidential election, Chester County (West Chester) was
evenly split, while Montgomery County (King of Prussia) and Delaware County (Chester)
provided overwhelming support for Barack Obama (The Washington Post 2012). The district
now consists primarily of townships that stretch 47 miles from Kirkwood in the west to Upper
Darby in the east. By drawing the district this way, Rep. Meehan garnered 59.4% of the vote in
the 2014 mid-term elections and won by a 19-point margin (FEC 2014). By excluding the larger
suburbs that provided Democratic support, the Republicans successfully broke apart that
coalition of voters. West Chester now sits in Pennsylvania’s sixth district administered by Rep.
Ryan Costello (R), while Chester is now part of the sixteenth district led by Rep. Joe Pitts (R).
In addition to cracking voter support into pieces like the example of Pennsylvania,
packing voters into a small geographic area has been used to isolate a voting bloc in a particular
19
part of a state. The twelfth congressional district in North Carolina runs along U.S. Route 85
between Charlotte and Greensboro, which are 92 miles apart from one another (See Appendix
D). Rep. Alma Adams (D) oversees a voting bloc that consists of the two cities mentioned above
along with Winston-Salem, High Point, Lexington, and Salisbury. None of these cities are within
the same county, yet Charlotte (Mecklenburg County), Winston-Salem (Forsythe County), and
Greensboro (Guilford County) all supported Barack Obama for president in 2012 (The
Washington Post 2012). Furthermore, all of the surrounding congressional districts belong to
Republican representatives in Congress as of this year. The eleventh district, which borders
Tennessee and is west of Charlotte, belongs to Rep. Mark Meadows. District ten, which borders
Charlotte to the west, is led by Rep. Patrick McHenry and district nine, surrounding Charlotte to
the north and south, is administered by Rep. Robert Pittenberger. District eight, due east of
Charlotte and Greensboro, is represented by Rep. Richard Hudson. This clearly represents an
effort to weaken the Democratic voting base in three major cities and can be described as
“packing”. These voters have been isolated into one district in order to make the surrounding
districts less competitive for the opposite party. In addition, North Carolina’s voter registration
record indicates that 2.6 million people are registered as Democrats compared to 1.9 million
registered Republicans and 1.8 million unaffiliated voters (NC State Board of Elections 2015).
Given these statistics and the number of congressional districts in North Carolina, 2.6 million
registered Democrats equates to 40% of the voting population. Only three districts have
Democratic representatives compared to ten Republican districts, which accounts for less than a
quarter of the seats in the House allocated to North Carolina (Contacting the Congress 2015).
The United States Census Bureau reports that the state of Texas had thirty-two
congressional districts in the year 2000, but that number increased to thirty-six districts following
20
the 2010 census (U.S. Census Bureau 2010). The thirty-fifth district, nicknamed “The Up-Side
Down Elephant”, runs along the southeastern part of the state between San Antonio and Austin.
Once again, like North Carolina, these cities are not in the same county and they are 79 miles
apart along U.S. Route 35 (See Appendix E). Lloyd Doggett (D) represents a voting bloc that
cast 494,000 votes for Barack Obama in 2012 (The Washington Post 2012), yet the district is
surrounded by Republican strongholds to the north (District 25), east (District 27), and west
(District 21) according to the Texas Tribune (Ramsey 2012). One of the side effects of packing
voters from a particular bloc into one district involves the competitiveness of the race. In the
earlier example of North Carolina, Alma Adams (D) won the twelfth district on her first attempt
with 75.4% of the vote during the 2014 mid-term elections. Lloyd Doggett, who had already
been in Congress with 25th district, faced an entirely new constituency when he ran for the thirty-
fifth district in 2012. He still won 63.9% of the vote that year. Despite the lowest voter turnout
for mid-term elections in 72 years during the 2014 cycle (The New York Times Editorial Board
2014), Doggett still compiled 62.4% of the vote in the thirty-fifth district (FEC 2014). In this
example, the value of the individual vote for the minority party (Republicans) is far less because
their candidate has a slim chance of winning even if voter turnout is relatively high. Furthermore,
by packing Democrats into Doggett’s district to create a quasi-super majority, this diminishes the
voting power of Democrats in surrounding districts. To be clear, Republican voters suffer in a
district packed with Democratic voters, but the surrounding districts remain Republican
strongholds to the dismay of Democratic voters.
A similar problem surfaced in Idaho during the 2014 mid-term elections as one of its two
congressional districts continued to encroach on voters in Boise. The state of Idaho has only two
congressional districts given its small population of 1.6 million people (U.S. Census Bureau
21
2011) and roughly 750,000 registered voters (Idaho Secretary of State 2014). Now, Idaho is
without a doubt a red-state as all but two if its forty-four counties voted for Mitt Romney in the
2012 presidential election. In 2012, Blaine County in the second congressional district supported
President Obama on a small scale with just under 6,000 votes or 58.8% of the total (The New
York Times 2012). In 2012, district two only absorbed part of the Boise City in Ada County (See
Appendix F), which contains one quarter of the total eligible voting population in the state (Idaho
Secretary of State 2014). 97,471 votes or 54% of Ada County’s total went to Mitt Romney in
2012 (The New York Times 2012). After redistricting was completed in time for the 2014 mid-
term elections by an independent commission, the 2nd congressional district absorbed all of Boise
City and portions of bordering counties to the west (See Appendix G). These acquisitions clearly
minimize the effect of any Democratic votes within district two as an even greater percentage of
Republican voters shifted from one area to another. Moreover, incumbent Rep. Mike Simpson
(R) won the election with 61.3% of the vote (FEC 2014). The fact that this happened under the
direction of a commission in a lopsided congressional election leads to skepticism about “non-
partisan” officials and the redistricting process. It would seem that the commission purposefully
limited the voting power of the Democrats in a state dominated by Republican leadership.
However, the Supreme Court decided in June of 2015 that states have the option to appoint these
commissions to eliminate partisan politics from the redistricting process (Wolf and Korte 2015).
Analysis Part III: The Impact of Gerrymandering
The Arizona decision (2015) provided an outlet for states dealing with gerrymandering
related issues by allowing independent commissions, but it did not resolve the Supreme Court’s
interpretation of partisan mapmaking. In the decision, Justice Ruth Bader Ginsburg alluded to the
Vieth case by saying “Justice Kennedy found no standard workable in the case, but left open the
22
possibility that a suitable standard might be identified later” (Arizona State Legislature v.
Arizona Independent Redistricting Commission (2015)). The case then proceeds into the issue
involving the state legislature and fails to mention a standard for judging partisan gerrymanders
that could be used by the Court later. This represents a divide between racial and partisan
gerrymandering cases that could come before the Supreme Court. In cases involving race or
national origin, like in Miller or Shaw, the standard of strict scrutiny was applied to strike down
instances of racial gerrymandering. No such standard of review exists for partisan cases, which
generates a constitutional gap between groups that are protected based on race and groups that
are not protected based on their political affiliations. Although this discrepancy was inadvertent
on behalf of the Court, it must be rectified to ensure that each sect of the population has the same
protections under the United States Constitution. To do this, two important modifications to our
electoral system must be implemented quickly and appropriately.
Part IV: Conclusions and Recommendations
If the United States wants to keep the first past the post voting system, it must begin to
minimize the effects of gerrymandering on elections at the state and congressional levels. To do
this, the redistricting process must be removed from state legislatures. Instead of having
politicians redraw district lines for their own benefit, independent commissions must be put in
place to eliminate partisan gerrymandering. If the Supreme Court is unwilling to address this
issue through a federal ruling, more states must adopt these commissions and bar state
legislatures from participating in the mapmaking process. The 2015 decision involving Arizona
serves as a guideline for other states that wish to eradicate this practice. With that said, many
states including those profiled in this paper are not ready or are unwilling to make these kinds of
adjustments to the redistricting process. That is why the Supreme Court must review its decisions
23
on partisan cases and develop some “justiciable standard” to help expedite this process.
Unfortunately, the Court cannot review its prior decisions unless a similar case reaches the
federal level. This opportunity did present itself in the 2015 Arizona case, but the Court chose to
focus on the constitutionality of independent redistricting commissions instead of the legality of
partisan gerrymandering.
In my own opinion, partisan gerrymandering does not belong in the democratic process
nor should it be a legal method for altering district lines. In many ways, it attempts to isolate or
break apart voting populations based on the political affiliations of certain groups. The Supreme
Court has already ruled in Miller that this practice is illegal and unconstitutional on the basis of
race or national origin. However, the Court has failed to liken voter discrimination based on
political affiliation with discrimination on the basis of race. Moreover, Section II of the Voting
Rights Act of 1965 stipulates that vote dilution is illegal on the basis of race or national origin as
well. Based on the information provided across five states in this paper, it is fair to say that
cracking apart or isolating voting blocs of Republicans or Democrats would be considered a form
of vote dilution. Now, given the fact that voting is considered a fundamental right, shouldn’t
every form of voter discrimination be illegal? This should include vote dilution with regards to
the political affiliations of certain voting blocs. Section II of the Voting Rights Act of 1965 needs
to be expanded to protect everyone’s right to vote, regarding of one’s political affiliation or voter
registration record. If this change is implemented, it will greatly reduce the effects of partisan
gerrymandering as voting blocs and political groups challenge questionable district lines.
24
Appendix A: Maryland’s Third Congressional District, 2013-present Source: Google Maps, GovTrack.us https://www.govtrack.us/congress/members/MD/3
25
Appendix B: Pennsylvania’s Seventh Congressional District: 2010
Source: Realclearpolitics.com and the National Atlas
http://assets.realclearpolitics.com/images/districts/PA7.gif
26
Appendix C: Pennsylvania’s Seventh Congressional District: 2013-present
Source: Google Maps and GovTrack.us
https://www.govtrack.us/congress/members/PA/7
27
Appendix D: North Carolina’s Twelfth Congressional District: 2013-present
Source: Google Maps and GovTrack.us
https://www.govtrack.us/congress/members/NC/12
28
Appendix E: Texas’ Thirty-Fifth Congressional District
Source: Google Maps and GovTrack.us
https://www.govtrack.us/congress/members/TX/35
29
Appendix F: Idaho’s Second Congressional District- 2003-2013
Source: The National Atlas.gov
30
Appendix G: Idaho’s Second Congressional District- 2013-present
Source: Google Maps and GovTrack.us
https://www.govtrack.us/congress/members/ID/2
31
Appendix H: Maryland’s 4th Congressional District, 2013-present
Source: Google Maps and GovTrack.us
https://www.govtrack.us/congress/members/MD/4
32
Appendix I: Maryland’s 5th Congressional District, 2013-present
Source: Google Maps and GovTrack.us
https://www.govtrack.us/congress/members/MD/5
33
Appendix J: North Carolina’s District Map- Jan. 2016
Source: Google Maps and GovTrack.us
https://www.govtrack.us/congress/members/NC
34
Appendix K: North Carolina’s Proposed District Map- Mar. 2016
Source:
Bonner, Lynn and Colin Campbell. “Republicans propose major changes to NC congressional
districts”. The News-Observer. 17 Feb. 2016.
http://www.newsobserver.com/news/politics-government/state-
politics/article60894672.html
35
Appendix L: Maryland’s 1st Congressional District (2013-present)
Source: GovTrack.us and Google Maps
https://www.govtrack.us/congress/members/MD/1
36
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Court Cases: Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) Baker v. Carr, 369 U. S. 186 (1962) Davis v. Bandemer, 478 U. S. 109 (1986) Kirkpatrick v. Preisler, 394 U. S. 526 (1969) Miller v. Johnson, 515 U. S. 900 (1995) Shaw v. Reno, 509 U. S. 630 (1993) Shaw v. Hunt, 861 F. Supp. 408 (E.D. N.C. 1994). Shelby County v. Holder, 570 U. S. (2013) The United League of Latin American Citizens v. Perry, U.S. 204 (2006) Thornburg v. Gingles, 478 U. S. 30 (1986) United States v. Carolene Products Co.304 U.S. 144 (1938) Vieth v. Jubelirer, U.S. 1580 (2004)
