Introduction

This inquiry into democracy began as an effort to understand and respond to the ills of gerrymandering.  The practice of manipulating districts to advantage or disadvantage a political party at election time goes back to the founding of America.  It has taken different forms over time, including at-large voting, malapportionment and gerrymandering.  These districting strategies are a natural feature of American democracy for two reasons:  first, the U.S. Constitution provides wide latitude to states and Congress to manipulate districts when adjusting them to accommodate population changes and second, our existing winner-take-all electoral system leads to polarization, which provides a strong motive for such manipulation.

The responses to at-large voting and malapportionment show the potential for reform.  Congress banned at-large voting in the 19^th century, and the U.S. Supreme Court banned malapportionment in the 20^th century.  Unfortunately, the practice of gerrymandering has only grown more insidious in the 21^st century.  Sophisticated software gives map drawers the ability to produce ever more impregnable districts, and the dwindling number of swing voters ensures greater durability of partisan maps.  Moreover, the extreme partisan make-up of districts encourages ever greater polarization by forcing candidates to appeal to the most extreme primary voters, giving these voters the power to decide who represents a district in the general election.

The U.S. Census Bureau recently released the 2020 census numbers.  Based on that data, state legislatures are drawing new districts.  These maps will determine the balance of power at the state and federal level for the next decade.  This essay reviews the origins and evolving patterns of districting since the nation’s founding.  It will show that gerrymandering, along with other strategic manipulations of the redistricting process, is a natural feature of the winner-take-all, majority electoral system employed in the United States.  Due to the competitiveness of both parties in this state, North Carolina is often the epicenter of this practice.  North Carolina has endured over 40 judicial interventions since 1980.  The state’s logo should read “First in Gerrymandering” rather than “First in Flight.”

Before embarking on this dive into redistricting and the practice of gerrymandering, it is important to take a step back.  Why do many find gerrymandering so deeply offensive?  Of course, the chief critics stoking the fire against gerrymandering come from the party on the short end of the stick – a party that would surely use the same weapon if in a position to do so.  But beyond the self-serving reasons to decry this practice, gerrymandering violates a fundamental democratic principle.  It dilutes votes.  It makes one person’s voice in the form of a vote more powerful than another’s by manipulating districts.  It puts a hand on the scale of elections, and in many cases, predetermines the outcome.

Beginning in the 1960s, courts have increasingly intervened to prevent such manipulation.  Judges understand these practices are an affront to democracy.  However, they have struggled with coherent constitutional theories and manageable standards.  Given the broad license the U.S. Constitution provides states and Congress to shape the electoral system, courts can only go so far.  They have acknowledged proportional voting would solve the problem of vote dilution, but the Constitution does not mandate such a system.  Consequently, courts have devised standards to reign in the worst abuses within the winner-take-all system currently employed in the U.S. with limited success.

Districting In Early American History

Gerrymandering flows from opportunity and motivation.  The U.S. Constitution provides the opportunity because it gives state politicians authority to decide how voters will choose the representatives allotted to their state and that number changes periodically.  Article I, Section 2 of the U.S. Constitution states:

Representatives … shall be apportioned among the several States which may be included within this Union, according to their respective numbers….  The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.  The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at least one Representative….

This section requires Congress to adjust the number of districts allotted to states every 10 years based on population changes.  As noted, states are currently drawing new districts to accommodate the recent census data.  For example, North Carolina picked up its 14^th congressional seat while New York lost one seat based on population shifts occurring between 2010 and 2020.

Article I Section 4 goes on to say:  “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Known as the Elections Clause, this section gives wide birth to state legislatures and Congress, if it chooses to act, to determine how districts should be formulated based on the number of seats apportioned to a state.  In other words, once a state knows how many congressional seats it has based on the decennial census, its legislature has near carte blanche in creating an electoral system to elect these representatives.  In particular, the Constitution says nothing about geographically defined or single member districts, winner-take-all voting or proportional voting.

If the Constitution created the opportunity to manipulate districts, partisanship serves as its motivation.  Early on, state legislatures took a variety of approaches to redistrict in a way that favored those in power.  In Partisan Gerrymandering and the Construction of American Democracy, Erik Engstrom provides a masterful account of this process.  For three of the original 13 states, there was only one representative so no opportunity to gerrymander existed.  Candidates simply ran in one statewide district.  In the remainder of states, however, legislatures took two approaches.  Parties in some states used the “general ticket” or at-large elections to their advantage.  In these states, all candidates ran statewide on one ticket and voters had one vote for each seat.  Therefore, overall support for a party at the state level tended to be reflected in all races as shown in the last essay.  For example, Federalists in the Pennsylvania legislature used the “general ticket” in the first federal elections, and their preferred candidates won every single seat by the same margin, overcoming anti-Federalist strongholds in certain parts of the state.

The remainder of states created geographic districts.  From the start, politicians could not resist the urge to manipulate these districts for partisan gain.  James Madison was one of the first targets of gerrymandering when Patrick Henry orchestrated the drawing of a U.S. House district to favor James Monroe. Nevertheless, Madison eked out a victory, in part by promising to back a Bill of Rights he had previously said was unnecessary when drafting the Constitution.

Of course, the most notorious example of manipulation came from a senate map in the State of Massachusetts signed into law by Governor Elbridge Gerry in 1812.  Historians argue over Gerry’s role in creating the map, but he clearly benefited from it because it artificially depressed the electoral chances of Federalist legislative candidates whom he opposed.  Consequently, he lives in infamy as the father of “gerrymandering,” based on a particular district’s salamander-like shape.  At the time, the Boston Gazette editorial opined:

Again, behold and shudder at the exhibition of this terrific dragon, brought forth to swallow and devour your Liberties and equal Rights.  Unholy party spirit and inordinate love of power gave it birth….  This law inflicted a grievous wound on the Constitution – it in fact subverts and changes our Form of Government which ceases to be Republican … and silences and stifles the voice of the majority.

These early years demonstrate that partisans used various strategies – not just gerrymandering — to game the system.  Both the general ticket and geographic districts served as effective tools for such manipulation.  In fact, the demise of the general ticket in federal elections resulted, in part, from an effort to manipulate the electoral system for partisan gain.  Engstrom describes passage of the Apportionment Act of 1842, which mandated single member districts.  That act provided, “That in every case where a state is entitled to more than one representative, the number to which each state shall be entitled under apportionment shall be elected by districts composed of contiguous territory equal in number to the number of representatives to which said state may be entitled….”  Engstrom concludes that Whigs backed geographic districts because the party was weaker in the states gaining seats through apportionment that used the general ticket.  District seats would help the Whig Party stem its losses in those states at the midterm election by ensuring its candidates could pick up a few seats in geographic areas where the Party had some level of concentrated support.  In other words, partisans eliminated the general ticket as a defensive strategy to maintain an edge electorally.

With the two-party system in full force and at-large districts prohibited by law, gerrymandering of congressional districts became standard practice in the second half of the 19^th century.  Legislatures gerrymandered districts in two steps.  First, they packed partisans into one or more districts in order to increase their chances in the remaining districts.  Second, they ensured their party loyalists comprised a slight majority in multiple districts in order to win as many as possible.  They did this by analyzing the election results at the county level since most congressional districts followed county boundaries.  Although much cruder than today’s sophisticated data, it still proved effective.  For example, Indiana Democrats in 1852 won 91% of the state’s congressional seats (10 out of 11) even though Democrats only won 54% of the statewide vote.

These “efficient gerrymanders” ultimately led to massive swings in electoral outcomes.  When Democrats or Republicans drew districts, they sought to maximize the number of wins with the least margin needed for victory – for example, ensuring their partisans comprised at least 55% of a district.  Such efficient gerrymanders allowed small shifts in public opinion to produce devastating results.  For example, Republicans picked up 64 House seats in 1872 after generating maps based on an efficient gerrymander.  However, in the next election, Republicans gave back 94 seats, one of the largest swings in U.S. history.  In 1894, Democrats lost a staggering 114 House seats after deploying efficient gerrymanders following the 1890 census.  The Panic of 1893 caused enough of a national shift to create a landslide in Congress.  Republicans dominated national politics for the next 16 years.  These episodes reflect efforts by politicians to manipulate the districting process with the tools and knowledge at hand when the Constitution provided little to no guardrails.

The Era of Malapportionment

As noted previously, divisiveness, dysfunction, and inequality reached a high point at the end of the 19^th century.  The Progressive Movement ushered in a period of relative political stability.  The hyper-partisan gerrymandering of the 19^th century came to an end.  A new form of electoral manipulation took hold known as malapportionment.  In effect, legislators stopped redistricting for decades.  By failing to adjust maps based on population shifts, districts had widely divergent ratios between members and population.  That meant the number of voters in one congressional district could exceed the number in another by hundreds of thousands.  Taken to an extreme, one party could represent multiple small districts while another party could represent one large district, diluting the political power of that party.

However, political motivations changed in the first half of the 20^th century.  With the weakening of political parties and decline in polarization, a single party came to dominate most state legislatures.  Republican delegations tended to control states in the North and West while Democratic delegations controlled Southern states.  Without the same motivation to manipulate district boundaries to gain seats, legislators tended to protect incumbents, and incumbents do not like their constituents to change.  Consequently, legislators redistricted less often.

Between 1840 and 1900, at least one state redistricted every year except for two.  In contrast, states rarely redistricted in the first half of the 20^th century.  For example, Illinois redistricted in 1900 and not again until 1948.  Connecticut allowed 50 years to pass between its redistricting plan in 1912 and 1962.  Party competition became nonexistent in the South, and many states there allowed districts to remain the same decade after decade.  At the beginning of the 20^th century, the average deviation between districts in a state was about 1.5 based on population.  By the early 1960s, it reached 2.0 so that the largest district within a state was on average twice as large as the smallest district.  The average masks many extreme examples of malapportionment.  For example, Michigan had one district with 802,994 people and another with only 177,341.

Malapportionment gave rural interests greater representation and hence political power.  As the number working in agriculture dwindled and people moved to cities, urban districts far exceeded rural districts in population.  Demographic tensions bubbled over in 1920, the only time in American history when Congress failed to pass a reapportionment act.  The 1920 census confirmed the growth of metropolitan areas, marking the first time the urban population surpassed rural areas.  In the face of losing seats, rural states blocked passage of the apportionment act so that districts remained unchanged in nearly every state for 20 years.  Coupled with seniority rules in place at the time, Congressional incumbents, particularly those in the South, remained in safe seats for decades and gained considerable power in government.  Not surprisingly, agricultural subsidies increased relative to federal spending in urban areas.  Further, malapportionment tilted national politics to the right by magnifying the representation of more socially conservative rural interests.

In sum, malapportionment, like gerrymandering and general ticket voting, manipulated the electoral system for political purposes.  All of these techniques undercut fundamental democratic principles.  By distorting the voice of the electorate, these strategies created an unlevel playing field.  Conflicts that required resolution through democratic means (i.e., fair elections) did not occur because elections were rigged for one side.  The collective mind of the electorate had to pass through a filter that obscured the will of the people.  When one person’s vote counts more than another’s, the function of democracy as a force for social cohesion and strength is diminished.  Legal theorists began to recognize this fact.

One Person, One Vote

Ultimately, the courts intervened to stop malapportionment.  This did not happen overnight.  The first shot across the bow came in 1946 with Colegrove v. Green, a decision by the U.S. Supreme Court over Congressional districts in Illinois.  The last time lawmakers had drawn districts in Illinois was 1901.  At the time, districts ranged in size from 112,116 to 914,000 people.  Despite this gross disparity, the Court refrained from ruling them unconstitutional, citing Article I, Section 4 of the Constitution, which gives authority to the states and Congress to prescribe “the Times, Places and Manner of holding Elections.”  Justice Felix Frankfurter wrote the decision, declaring:

It is hostile to a democratic system to involve the judiciary in the politics of the people.  And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law….  The one stark fact that emerges from a study of the history of Congressional apportionment is its embroilment in politics, in the sense of party contests and party interests….  Courts ought not to enter this political thicket. [emphasis added]

Restraint by the Court in deciding political questions has remained a theme in redistricting decisions to this day.

Justice Hugo Black’s dissent in Colegrove established the counterpoint to Frankfurter’s opinion, and Black’s thesis would gain momentum over time.  Black saw the right to vote and the right to have one’s vote counted, which is contained in Article I of the Constitution, as clearly implying “the policy that state election systems … be designed to give approximately equal weight to each vote cast.”  The concept that each vote should be “equally effective” has far reaching implications.  Black concluded that Article I guarantees the right for “all groups, classes, and individuals [to] be given equal representation in the House of Representatives, which, in conjunction with the Senate, writes the laws affecting the life, liberty, and property of all the people.”

In other words, an equally effective vote means that each vote should count proportionally.  Black’s acknowledgement that effective votes require proportional voting reflects a growing awareness by legal theorists of the shortcomings of winner-take-all electoral systems.  However, they had no clear legal basis to rule winner-take-all systems unconstitutional.

Frankfurter’s admonition that courts should avoid the “political thicket” of redistricting held sway for another 25 years.  Then came Baker v. Carr in 1962.  By this time, several retirements and deaths on the Court and the ascension of Earl Warren as chief justice produced a very different make-up compared the Court in Colegrove.  The justices agreed to hear a complaint against Tennessee’s districts, which like Illinois, had not been redrawn since 1901.

It took a year for a divided Supreme Court to render a decision.  The pressure and strife surrounding this case led to the retirement and health issues suffered by Justice Whittaker.  Justice William J. Brennan, Jr. wrote the majority decision. He reformulated the political question doctrine originally articulated by Chief Justice John Marshall in the 1803 Marbury v. Madison decision — one of the most significant in U.S. history because it established the separation of powers.  Brennan set forth six factors to determine if questions were political.  They included “a lack of judicially discoverable and manageable standards for resolving it.”  Based on this formulation, the Court held that redistricting presented a justiciable issue under the equal protection clause of the 14^th Amendment. This decision opened the door for judicial intervention into state redistricting.  Justice Warren would later say this was one of the most important decisions during his tenure as chief justice.

Following Baker, a slew of redistricting cases came to the Supreme Court.  Reynolds v. Sims took the Baker decision to its logical conclusion.  Considering the malapportionment of the Alabama legislative districts, the Supreme Court found that districts with unequal populations violated the equal protection clause of the 14^th Amendment.  Chief Justice Warren wrote the opinion.  The court saw that overvaluing votes based on where a person lived resulted in “discrimination against those individual voters living in disfavored areas.”  Warren echoed the logic expressed previously by Hugo Black:

[R]epresentative government is, in essence, self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies….  Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.

The Court concluded that the equal protection clause requires state legislatures to “make an honest and good faith effort to construct districts … as nearly as equal in population as is practicable.”  In other words, districts must meet the test of “one person, one vote.”  A major reason the Court ultimately entered this “political thicket” was that malapportionment could be observed mathematically, making its remedy of equal population “judicially discoverable and manageable.” That was not necessarily the case for other strategies that impaired the effectiveness of a person’s vote such as gerrymandering.

The Rise and Fall of Racial Gerrymandering

At the same time the U.S. Supreme Court ended the practice of malapportionment, the Civil Rights Movement reached a crescendo.  Congress passed the Voting Rights Act of 1965.  This bill aimed to dismantle decades of Jim Crow laws that disenfranchised Blacks.  Section 2 of the Act prohibits any requirement for voting that “results in a denial or abridgement of the right … to vote on account of race.”  As described in the essay “Majorities, Minorities and Innovation in Electoral Design,” the Act prompted a number of strategies — mostly in Southern states — to devise voting systems that made it difficult for Black candidates to win election even when Black voters have equal access to the ballot.  In response, Congress amended Section 2 in 1982 (and Ronald Reagan signed it into law) to create a “results” test, looking at various factors such as the extent to which minorities have won elections in a jurisdiction to determine whether that jurisdiction complied with the Act.

The Voting Rights Act and its amendments set the stage for an epic struggle over racial gerrymandering.  A series of cases exposed how difficult it is to ensure minorities have an equal opportunity for representation in a winner-take-all voting system.  The first case, Thornburg v. Gingles, arose in North Carolina.  The Court struck down multi-member districts because they diluted the power of minority voters who wished to choose a minority candidate.  Lani Guinier served on a legal team led by North Carolina civil rights pioneer Julius Chambers.  The majority opinion, written by Justice Brennan, created a test that prohibited multi-member districts when it could be shown that a minority group was sufficiently large and geographically compact to elect a minority in a single member district.  This decision led to the creation of majority-minority districts.

The Gingles decision set the stage for the next case coming out of North Carolina.  Following the 1990 census, legislators created the infamous 12^th Congressional district that knitted Black communities together from Durham to Charlotte. This district achieved the desired effect of electing Mel Watt, the first Black U.S. representative from North Carolina since the end of Reconstruction.  It also produced substantial legal and political backlash.  A court case, Shaw v. Reno, eventually made its way to the U.S. Supreme Court.  Justice Sandra Day O’Connor wrote the majority opinion, stating the district “bears an uncomfortable resemblance to political apartheid.”  The Court found race cannot be the only justification for creating a district.  A decision two years later clarified that race can be a factor in drawing districts, but it cannot be a predominant factor.

These decisions set the stage for the resurgence of extreme partisan gerrymandering, which had gone dormant since the 19^th century.  Because many Blacks affiliate with the Democratic Party, Republicans saw the advantage of concentrating Black voters into a few majority-minority districts, making it easier to spread out and dilute the strength of Democratic voters in other districts.  The practice known as “packing and cracking” became the cornerstone of Republican gerrymandering strategies.  (Of course, Democrats, when given the opportunity, employ similar gerrymandering strategies to dilute Republican voters.)  One study showed these court cases cost Democrats ten seats in the South following the 1990 census.

Lani Guinier, who helped argue Shaw, came to see the flaw in thinking majority-minority districts in a winner-take-all system would serve the cause of democracy.

While race served as a convenient excuse for gerrymandering, other forces ignited the inexorable push toward extreme gerrymandering.  No longer did partisans allow districts to go untended for decades.  Parties wanted to inflict maximum pain on their adversaries by creating bullet proof majorities in state legislatures and Congress.  New technologies in the form of sophisticated software provided the means to accomplish this objective.  The crude data once used by map drawers to predict future behavior was replaced by sophisticated software systems, which consider data at the household level.  Such data include party registration, political donations, voting frequency and rich demographic information on age, income, race and education.

This information allows fine grain manipulation of district lines that can hold up election cycle after election cycle.  For example, one study compared the results of gerrymandering in Ohio following the 1880 census and the 2000 census.  In both cases, Democrats comprised about 48% of the electorate.  The average margin of victory for district races in the 1882 redistricting was 4.8% while the average was 16.5% in 2002.  The significant increase reflects the ability of parties to use improved data to draw districts more immune to competition.  Another example can be drawn from recent redistricting in North Carolina.  The Democrats gerrymandered districts following the 2000 census but ultimately lost a majority in the state legislature in the 2010 election.  Having gained control, the Republicans gerrymandered districts in 2012 and maintained control of both chambers of the legislature by a wide margin in every election cycle through 2020 – even though the statewide vote was often nearly 50-50 between the two major parties.  Clearly, the tools to predict voter behavior have markedly improved.

Judicial Efforts to Stop Partisan Gerrymandering

In many ways, partisan gerrymandering presents a more direct threat to democratic principles than malapportionment.  In the case of the former, politicians intentionally manipulate districts to predetermine an electoral outcome that favors one party.  As such, general elections are unnecessary.  Since districts are dramatically skewed to favor one party or another, the primary election proves decisive to the ultimate outcome.  The general election does not serve as a moderating influence on candidates who are incentivized to pander to their base.  The corrosive impact of gerrymandering on competition has spurred pro-democracy groups to argue that partisan gerrymandering is unconstitutional just as malapportionment was.

The Supreme Court took a major step in that direction with Davis v. Bandemer in 1986. In that case, Democrats challenged a Republican redistricting plan in Indiana after Democrats won a majority of votes statewide but only 43 out of 100 State House seats.  Justice Byron White wrote the majority opinion.  Acknowledging that the malapportionment cases rested on an “arithmetic presumption” about the unequal size of districts, White claimed the same principle of “fair and effective representation for all citizens” was at stake.  He pointed to the racial gerrymandering decisions and drew a straight line to political gerrymandering.  In both situations, an identifiable group has “an insufficient chance to elect a representative of its choice, and that district lines should be redrawn to remedy this alleged defect.”  Consequently, the court found for the first time that partisan gerrymandering was justiciable.

The Court, however, faced a hurdle that would prove insurmountable.  The Supreme Court struggled to identify a manageable standard to apply to gerrymandering under a winner-take-all electoral system.  A proportional voting system would clearly remedy the unfairness of partisan gerrymandering, but the Constitution does not mandate such a system.  Consequently, the Court wrote that the “mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination.”  White noted that the District Court reached its conclusion of unconstitutionality based on the results of one election in 1982.  It would take more than that to prove the redistricting scheme violated the Equal Protection clause.  The Court speculated that Indiana, a swing state, could well change over in the next election cycle.  Without findings that the scheme consigned one party to minority status for an entire decade, the Court could not determine it violated the constitution.

Last Gasp for Judicial Review?

While Baker’s finding of justiciability led to a quick succession of cases that ended malapportionment, Davis did not produce the same result.  Courts continued to struggle with a standard for partisan gerrymandering.  Partisan gerrymandering lacked the mathematical clarity of measuring district populations. No one doubted that politicians intended to disadvantage their opponents when gerrymandering.  However, a majority on the court could not settle on a manageable standard.  Without an objective standard such as proportionality between votes cast and party representation, it is hard to draw a clear line between a constitutional map and an unconstitutional map.  In a winner-take-all system, it is easy to hide partisanship under the guise of neutral standards such as contiguity, compactness and communities of interest when drawing maps.

Momentum for judicial action did build after the 2010 redistricting when new software and hyper partisanship made gerrymandered maps even more impregnable.  The plaintiffs in Gill v. Whitford used a novel way to create a manageable standard for partisan gerrymandering.  A political scientist at the University of Wisconsin (once again the cradle of innovation) devised the “efficiency gap” that measures the percentage of wasted votes based on gerrymandered maps.  It concluded that a gap greater than 7% would shut out the opposing party for the duration of the map (i.e., 10 years).  The Supreme Court’s decision to hear the case in 2017 raised the hopes of pro-democracy groups.  Chief Justice John Roberts dashed those hopes when he wrote a majority opinion that remanded the case based on lack of standing.

Close on the heels of Gill, Rucho v. Common Cause became the next major showdown on partisan gerrymandering.  Also based on maps drawn in 2010, the Supreme Court agreed to hear dueling cases that challenged congressional districts drawn by Republican legislators in North Carolina and Democratic legislators in Maryland.  Plaintiffs hoped that casting blame on both parties would underscore the principles of democracy that transcended party – particularly in an age of polarization.  Despite the near 50-50 statewide party vote in North Carolina, Republicans managed to win 10 of 13 congressional districts.  Republican legislators took pains to show they did not rely on racial data in drawing the maps.  Perhaps going too far, Representative David Lewis famously stated “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

After district courts ruled the North Carolina and Maryland maps unconstitutional, the Supreme Court agreed to hear a consolidated case. Chief Justice Roberts delivered the majority decision, which put a dagger in hearts of those searching for a legal principle to end partisan gerrymandering.  Reversing Davis, the Court found that partisan gerrymandering presented a political question.  Therefore, it was not justiciable.  Ignoring the reasoning of previous justices who drew a straight line between malapportionment, racial gerrymandering and partisan gerrymandering based on the theory of an equally effective vote, the Court saw no such link.  Echoing Justice Frankfurter, Roberts acknowledged that “Excessive partisanship in districting leads to results that reasonably seem unjust.  But the fact that such gerrymandering is ‘incompatible with democratic principles,’ does not mean that the solution lies with the federal judiciary.”

The majority rejected the idea that a judicially manageable standard exists in the context of partisan gerrymandering.  Roberts noted that the constitution does not mandate a fair system such as proportional voting.  Given that states use winner-take-all systems, it is exceedingly difficult to identify how fairness should be achieved.  Should maps seek as many competitive districts as possible?  Should they manipulate lines to ensure those elected reflect the overall partisan make-up of the state?  Or should they use neutral criteria such as compactness, contiguity and communities of interest that could result in a variety of outcomes?  Roberts exposed the challenge of creating a judicial standard in the winner-take-all world.

And yet, the outcome of Rucho showed how close the Supreme Court came to taking the next logical step just as it did with the malapportionment cases of the 1960s.  The decision was 5-4.  Had the U.S. Senate confirmed Merrick Garland’s nomination following the death of Justice Antonin Scalia in 2018, the outcome would almost certainly have gone the other way.

Justice Elena Kagan wrote a blistering dissent in Rucho, and at the same time, articulated how a different Court would have established a new constitutional framework prohibiting extreme partisan gerrymanders.

Her dissent accomplishes this in two ways.  First, she describes gerrymandering in more serious terms than the majority.  She notes that gerrymandering attacks a fundamental democratic principle that people should choose their representatives and not the opposite.  Moreover, “big data and modern technology” now make gerrymandering an existential threat to American democracy.  By creating districts that cater to the most extreme primary voters, the practice feeds into the polarization that has made Congress nearly dysfunctional.  She writes, “If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.”  Where the majority sees gerrymandering as an unfortunate appendage of winner-take-all voting, Kagan sees it an existential threat to the foundations of democracy.

Second, she explains in detail the standard applied to “extreme gerrymandering” by district courts across the country to say that a judicial standard is workable.  To demonstrate a redistricting map is unconstitutionally extreme, the evidence must show it an outlier among possibilities based on a state’s neutral standards such as compactness, contiguity or communities of interest.  The plaintiffs in North Carolina offered experts with mathematical models that produced thousands of maps, showing the impossibility of creating the map at issue without the use of partisan criteria.  Kagan argued the Court does not have to inject its opinion as to fairness.  It only needs to create a baseline for extreme gerrymandering when evidence proves a map to be an “outlier.”  In that case, the map constitutes a “substantial harm” to effective votes.  Courts apply the standard of substantial harm in a variety of settings such as antitrust.  In other words, Courts do not have to apply a mathematical principle as it did in the malapportionment cases to mitigate the worst ills of partisan gerrymandering.

Kagan concludes her dissent in dramatic fashion:  “Of all times to abandon the Court’s duty to declare the law, this was not the one.  The practices challenged in these cases imperil our system of government.  Part of the Court’s role in that system is to defend its foundations.  None is more important than free and fair elections.  With respect but deep sadness, I dissent.”  The Rucho decision shut the door on the possibility that partisan gerrymandering would share the same fate as malapportionment and racial gerrymandering.  The battle to reign in abusive redistricting would have to shift to other fronts.  Justice Roberts pointed the way in his majority opinion, suggesting plaintiffs look to state courts and legislative reform for help.  Kagan scoffed at this alternative, but that is all that is left for the moment.

State Court Action to End Gerrymandering

With partisan gerrymandering no longer a justiciable issue under the U.S. Constitution, Common Cause and other groups looked to state courts for help.  These cases focus on provisions in state constitutions that specifically refer to fair elections.  Several months prior to the Rucho decision, Common Cause had filed a lawsuit in North Carolina state court – Common Cause v. Lewis.  Like Justice Roberts suggested in the Rucho decision, the plaintiffs contended that partisan gerrymandering violated several provisions in the state constitution rather than the U.S. Constitution, including the equal protection, rights of association and free expression and free elections clauses.  A three-judge panel issued an opinion in September 2019 – three months after Rucho – finding for Common Cause that the state’s legislative maps constituted impermissible partisan gerrymanders.

The panel explicitly references Justice Roberts’ opinion in Rucho, stating that decision’s conclusion does not “condemn complaints about districting to echo into a void” because “provisions in state constitutions can provide standards and guidance for state courts to apply.”  In this case, the panel cited the Free Elections Clause in the state constitution as more specific than the U.S. Constitution “in protection of the rights of its citizens.”  This clause dates back to the state’s Declaration of Rights in 1776, which was based on the 1689 English Bill of Rights, providing that “election of members of parliament ought to be free.”  The opinion concluded there is a compelling interest of the State to have fair elections “that the voters should choose their representatives, not the other way around.” Evidence showing the districting plan made it impossible for Democrats to win a majority was sufficient to find the plan violated this clause.  For similar reasons, the panel found the maps violated the other two clauses as well.

The Lewis decision initially sent political shock waves in North Carolina.  However, the long-term impacts underscore the limits of reform in a winner-take-all voting system.  The panel only enjoined a handful of districts from being used in the 2020 election as extreme gerrymanders.  It ordered the legislature to use neutral criteria, including equal population, contiguity of districts, compactness, municipal boundaries and incumbency protection.  As Kagan noted in Rucho, these neutral criteria can still lead to electoral results that do not reflect the make-up of the electorate.  Her admonition bore out in the 2020.  Democrats only picked up two of the redrawn seats.  Republicans maintained a strong majority in both chambers.  Unsurprisingly, legislators still understood how to achieve partisan gerrymanders under the guise of these neutral criteria.  As long as politicians are drawing districts in a two-party system, maps will reflect the partisan objectives of the controlling party.

Independent Districting Commissions

The U.S. is the only nation where politicians draw their own districts, and politicians simply cannot withstand the inexorable pull of self-interest when designing maps.  The obvious fix is to remove them from this conflict of interest.  Consequently, reformers have advocated both bi-partisan and independent commissions to draw maps.  A number of states have instituted such reforms in recent years.  Some commissions use elected officials.  Others use political appointees and ordinary citizens.  Pro-democracy groups suggest the following standards:

• Independent selection with screening for conflicts of interest
• A size that adequately reflects the diversity in geography, political and ethnic make-up
• Clear, neutral criteria for drawing maps
• Paid staff to support the commission
• Transparency in proceedings so the public can have input and observe deliberations
• Rules that foster negotiation and compromise among groups rather than a tie-breaker vote that encourages winner-take-all outcomes

The U.S. Supreme Court recently upheld the validity of independent commissions in Arizona State Legislature v. Arizona Independent Redistricting Commission.  Partisans had challenged their use as a violation of the Elections Clause, which vests authority for redistricting in state legislatures.  Justice Ruth Bader Ginsburg wrote the opinion for the 5-4 majority, noting that Arizona’s constitution permits referenda, a mechanism allowing the people stand in the shoes of the legislature.  In this case, the independent commission was created by referendum.  Echoing the emotional exchanges among justices on redistricting matters, Justice Scalia wrote:  “the majority’s resolution of the merits … is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.”

Legislative reform has gained considerable momentum in recent years.  Common Cause and other reform groups in states that allow referenda have generally prevailed whenever they can put an independent commission on the ballot for a vote.  HR 1, known as For the People Act, would address gerrymandering at the federal level.  This Act requires states to use independent commissions to draw congressional district lines.  The commissions would have 15 members split equally among Republicans, Democrats and Independents.  Criteria include many of the typical items such as political subdivisions and communities of interest.  It also provides that no party should have undue advantage in drawing the maps, which would require support by a majority of commissioners.  So far, HR 1 has languished in the U.S. Senate due to a filibuster by Republicans.

While independent commissions can ameliorate the worst effects of extreme gerrymandering, they still face two issues.  As noted by Justice Kagan, most states lack statutory authority to hold referenda.  Very few state legislatures have exhibited the political fortitude to pass legislation to delegate redistricting authority to a body other than politicians.  As such, the prospect for independent commissions remains limited.  Common Cause North Carolina and other groups have lobbied legislators – both Democrats and Republicans —  to place a constitutional amendment creating such a commission on the ballot.  The party in control simply refuses relinquish power over redistricting.  With control of the legislature hanging in the balance in 2020 – a redistricting term – many hoped legislators would approve the referendum as an insurance policy.  Nevertheless, Republicans took a gamble in not passing the bill and managed to hold onto majorities in both chambers.  They are now well positioned to draw maps for the next decade.

Justice Kagan also highlighted another limitation of independent commissions.  They rely on a variety of neutral standards such as contiguity, compactness and communities of interest.  None of these criteria address the fundamental principle identified by Justice Black in Colgrove.  Gerrymandering represents a dilution of votes so that some voters have less a voice than others.  The antidote for vote dilution is proportional voting.  None of the above-mentioned criteria recognizes this principle.  As long as we employ a winner-take-all system, votes will be wasted and some voters will not have a meaningful opportunity to elect the candidate of their choice.  Independent commissions vastly improve the abuse imposed by partisan gerrymanders, but they do not cure the problem of vote dilution, which is a function of winner-take-all voting.

Conclusion

Partisan gerrymandering looms large today in the American psyche.  Sophisticated software can produce legislative maps that remain impermeable for a decade – a decade during which a party is locked out of power despite its competitiveness on a statewide basis.  Equally concerning, the districts created by these maps are so weighted toward one party or the other that the primary is the de facto election.  Candidates must cater to a party base in the primary election that encourages extreme partisan behavior and rhetoric, feeding an environment of polarization.

Districting has operated as a threat to democracy since the birth of this nation.  The Elections Clause in the U.S. Constitution gives state legislatures power to draw districts, and they have done so using the general ticket, gerrymanders and malapportionment whenever it served the interests of those drawing maps.  In each instance, their actions diluted votes and undermined the two primary social functions of democracy by manipulating the will of the people and exacerbating rather than channeling conflict in a productive way.

Beginning in the 1960s, courts have attempted to reign in the worst abuses of redistricting.  Nevertheless, gerrymandering remains a threat to democracy and has worsened during this century.  Its specter has stirred substantial efforts by good government groups to bring court challenges and to promote independent commissions.  These efforts are essential in a winner-take-all system that gives politicians the authority to draw their own districts.  But widening out the lens reveals deeper, more troubling challenges to democracy.  Our political culture is increasingly characterized by anti-democratic behaviors and tendencies that threaten to upend our system of government.  The source of these trends goes far beyond gerrymandering.

Mack Paul is a member of the state advisory board of Common Cause NC and a founding partner of Morningstar Law Group.

Parts in this series:

Introduction: Building Democracy 2.0

Part 1: What Is Democracy and Why Is It Important?

Part 2: How the Idea of Freedom Makes the First Innovation Possible

Part 3: The Second Innovation that Gave Rise to Modern Democracy

Part 4: The Rise and Function of Political Parties – Setting the Record Straight

Part 5: How Political Parties Turned Conflict into a Productive Force

Part 6: Parties and the Challenge of Voter Engagement

Part 7: The Progressive Movement and the Decline of Parties in America

Part 8: Rousseau and ‘the Will of the People’

Part 9: The Dark Secret of Majority Voting

Part 10: The Promise of Proportional Voting

Part 11: Majorities, Minorities and Innovation in Electoral Design

Part 12: The Misdirected Attempts at Electoral Reform in the U.S.

Part 13: Building Democracy 2.0: The Uses and Abuses of Redistricting in American Democracy