March 13, 2023
In 1811, Massachusetts Governor Elbridge Gerry signed into effect a new redistricting plan to snag votes for his party. The plan, however, was quickly called out and derided for its blatant manipulation of the redistricting process. Amidst this criticism, the Boston-Gazette took its own shot at the plan, classifying the dubiously drawn South-Essex state senate District as “a new species of monster: the Gerry-mander.” This term quickly caught fire and eventually entered political verbiage to describe the process of contorting districts during redistricting to gain or limit votes.[i] As a tradition dating back to the beginning of the United States, the history and trends of gerrymandering are best explored through the consideration of the 2022 Supreme Court case Moore v. Harper and the consequences it poses.
Though it is difficult for experts to agree on a universal standard for measuring the extent of this issue, Stephen Ansolbehere and Maxwell Palmer, researchers at Harvard University and Boston University, respectively, attempted this with their 2016 study, “A Two Hundred-Year Statistical History of the Gerrymander.” Though the compactness of districts is generally the standard for measuring the extent of gerrymandering, experts disagree on the best method for doing so. These methods are the Reock Method, the Convex Hull Method, and the Polsby Popper Method; all have their own unique benefits and drawbacks in what they consider to be a compact district. To remedy this, Ansolbehere and Palmer used the three most popular methods for measuring compactness to develop a history of gerrymandering and identify trends. They identified that “the most gerrymandered districts as those that are worse than the original gerrymander on all three measures.” They found 109 of these “unique districts” over the years were recent, with only sixteen being drawn before 1993’s 103rd Congress, suggesting an upwards trend of the manipulative practice.[ii]
In 2022, the North Carolina Supreme Court struck down the State Senate, State House, and congressional maps drawn and passed by the North Carolina General Assembly, stating that they gave Republicans an unfair advantage. The court later passed the State House and State Senate maps redrawn by the NCGA, but struck down the second congressional map; they instead passed a map drawn by special masters that they had appointed. This map would then be used in the 2022 elections. The actions the State Supreme Court took were challenged in the 2022 case Moore v. Harper. The North Carolina Speaker Tim Moore and his colleagues argue that their state Supreme Court violated the Elections Clause based on the Independent State Legislature (ISL) theory, which posits that according to the Elections Clause in the United States Constitution, the State Legislature has complete authority over election policy, apart from federal supremacy.[iii]
A ruling that endorsed ISL would almost certainly mean more gerrymandering and more blatant disenfranchisement of voters. It would be true that the federal Supreme Court could still rule a redistricting plan unconstitutional under ISL, but this power would be limited by the Purcell principle loophole; the Purcell principle, derived from Purcell v. Gonzalez (2006), states that courts should not intervene in election matters too close to an election. This means that a court could find a map to be illegally gerrymandered, but must allow it to be used in the election and wait to sort out the issues until afterward. In 2022, a three-judge federal panel in Alabama found that the Alabama State Legislature had “likely violated the Voting Rights Act” by diluting Black voters’ influence. The court ordered the Legislature to redraw the map, but the Federal Supreme Court ordered a stay, restoring the rejected map due to the Purcell principle.[iv] In a future under ISL, a map could be found to be illegally gerrymandered, but the same Supreme Court that issued such an egregious stay would surely not act to reform the plan until after votes are cast.
Gerrymandering is indeed a mostly unavoidable issue. Redistricting is a necessary process and the Constitution’s Election Clause endows state legislatures the authority to determine the “time, place, and manner of holding elections.” Some states have chosen to delegate that authority to “bipartisan” or “nonpartisan” commissions, which have seen mixed results. David Imamura, the chair of the New York State Independent Redistricting Commission during the 2020 redistricting cycle, wrote an article for the American BAR Association where he identified several issues that he believes have stopped these commissions from effectively combatting gerrymandering. These issues include structural problems, like having the same number of Democrats and Republicans without any independents, which can lead to gridlock, as well as procedural problems, such as many of these commissions being purely advisory or subject to legislative override. Imamura believes in the national implementation of “gold standard” independent commissions via the For the People Act. This act, which has already narrowly passed the House, would see redistricting commissions implemented in all states. It would also address Imamura’s concerns, thus creating truly independent, effective commissions instead of covertly partisan vehicles for gerrymandering. These commissions would have fifteen-members: 5 independents, 5 Republicans, 5 Democrats, with some being chosen by the legislature and some being randomly selected citizens.[v] I’d like to see some additional changes, like guarantees of independence from the legislature. I also think it would be beneficial for the commission to act without political data, and instead use only general data on the population to create districts without any political motivations.
Gerrymandering will exist with or without courts, who already have limited power to address the issue. Despite this, State Supreme Courts have still played a recent and important role in blocking other redistricting maps, including 2022 maps in New York and Maryland for gerrymandering. An endorsement of ISL could mean a complete loss of authority in elections for State Courts, which already have waning power in an age of worsening gerrymandering on the basis of the Purcell principle. Considering the decreasing compactness of districts and the danger facing legal regulation via Moore v. Harper, it would be beneficial for Congress to pass the For the People Act. Passage of this act would work towards combatting gerrymandering and disenfranchisement, negating the disastrous fallout that could come with a federal endorsement of Independent State Legislature Theory.
Image via Pexels Free Photos.
[i] Little, Becky. “How Gerrymandering Began in the US – History.” History.com, April 20, 2021. https://www.history.com/news/gerrymandering-origins-voting.
[ii] Ansolabehere, Stephen, and Maxwell Palmer. “A Two Hundred-Year Statistical History of the Gerrymander – Maxwell Palmer.” Maxwell Palmer. Ohio State Law Journal, 2016. https://maxwellpalmer.com/research/Ansolabehere_Palmer_Gerrymander_Compactness.pdf.
[iii] The Associated Press and WBTV Web Staff. “NC Judges Create Their Own Congressional Map, Uphold Legislative Maps.” https://www.wbtv.com. The Associated Press, February 23, 2022. https://www.wbtv.com/2022/02/23/nc-judges-uphold-legislative-maps-change-congress-lines/.
[iv] Wines, Michael. “Maps in Four States Were Ruled Illegal Gerrymanders. They’re Being Used Anyway.” The New York Times. The New York Times, August 8, 2022. https://www.nytimes.com/2022/08/08/us/elections/gerrymandering-maps-elections-republicans.html.
[v] Imamura, David. “The Rise and Fall of Redistricting Commissions: Lessons from the 2020 Redistricting Cycle.” Americanbar.org. American Bar Association, October 24, 2022. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/economics-of-voting/the-rise-and-fall-of-redistricting-commissions/.
Policy & Political Review 