Gerrymandering
By Jacki Swearingen '73
In this year of insurrection, gerrymandering threatens to weaken democracy even further by the voter inequity and polarization it spawns. Gerrymandering buttresses a congressional system in which getting anything done is next to impossible. In state legislatures gerrymandering bolsters primaries where lawmakers flaunt dangerous conspiracy theories. As for individual citizens, a growing number feel their votes count for nothing.
“We think the problem is worse than we expected,” said Ryan O’Connell ’73, one of three Class ACT members who have just produced Gerrymandering: Our Democracy at Risk, a primer on redistricting reform. “It is a real threat to democracy. People’s votes don’t get equal weight.”
Gerrymandering too often remains hidden in back rooms where political operatives find ways to enhance their party’s political clout at the expense of voters. “Gerrymandering occurs when the state legislature draws voting districts in a distorted manner,” O’Connell, Jim Harbison ’73, and editor Sallie Gouverneur ’73, explain in their primer. Finding ways to give their parties as many victories as possible, these architects of gerrymandering have come up with ingenious methods to cram as many opposing voters into as few districts as possible while distributing their own voters in ways that allow them to capture slim majorities in as many districts as possible.
Legislators who draw those maps have the most to gain from configuring the contorted districts. “The fox is guarding the chicken coop,” said O’Connell, who concludes that such a system shreds accountability. Those lawmakers then focus solely on the voters likely to reelect them while ignoring the rest and rendering their votes worthless. “It distorts the political process,” O’Connell said. “The forces of darkness are very strong.”
For the ClassACT team that created the primer, it is past time to break that web of secrecy and silence. Their five months of work has resulted in an incisive and detailed analysis of gerrymandering that inspires hope for change. Along with historical context that stretches back to 1788, they introduce readers to the latest mathematical tools used both to construct gerrymandered districts and to expose them. Most importantly, they provide pragmatic routes to reform already underway.
With the release last month of new census numbers, the ClassACT authors’ mission is more urgent than ever. This year states begin redrawing congressional and state legislative districts according to how their population has shifted. With demographic movements from northern industrial states like New York and Michigan to southern and western states like Texas and Florida, the borders of many electoral districts are likely to shift dramatically.
In too many cases, the authors say, state legislators see redistricting as a means of holding onto and extending their own power. In recent decades the party in power in the legislature gerrymanders to gain a disproportionate number of seats and to send a disproportionate number of their party members to Congress. Gerrymandering gives incumbents a convenient way to design the maps of their own districts so that they can easily hold on to “safe seats.” Harbison noted “We are the only democracy where legislators pick who votes for them.”
The end result is a political system where countless voters in state and federal elections find their votes are essentially worthless. Gerrymandering proponents deliberately rely on such methods as “packing” and “cracking” to place voters into the districts they construct. With “packing,” Harbison explains “You want to pack the opposing party into as few districts as possible.” There those disenfranchised voters are likely to choose a candidate of their own party by an overwhelming majority. But that cramming means there are fewer voters from their party to place in other districts where they might have a shot at winning an election.
Conversely, “cracking,” Harbison says, allows these same architects to scatter the voters being disenfranchised into as many districts as possible. It then becomes nearly impossible for their party to approach the 51 percent necessary to win an election in these districts. One telltale sign of such practices are the contorted shapes of districts on gerrymandered maps whose creators have linked narrow strands of counties to get the voting pools they desired.
When did the excesses of gerrymandering reach the point where it became the threat to democracy that it is today? Harbison and O’Connell trace the trend back to the 2008 election when Republicans failed to secure the White House or Congress. Savvy political operatives figured out the key to winning back seats in Congress was first to establish control of the state legislatures that would do the redistricting after the 2010 Census. “If you look at history,” Harbison said, “the Republicans recovered by winning back all the legislatures. They did very well.” The eventual rewards were redistricted maps that ensured a majority of Congressional and legislature seats that would allow them to perpetuate control for years to come.
The legacy of that power grab means even though polls indicate the majority of voters care about issues such as climate change and gun control, incumbents can dismiss those concerns. “Popular opinion is in one place, and politicians are in another,” Gouverneur said. Lawmakers do not have to respond to changes in voters’ attitudes because the current system works to keep them in power, Harbison added.
Moreover, elections in districts where one party’s victory is essentially guaranteed tend to result in intraparty contests that give rise to extremist candidates. “When you give lawmakers safe seats, they can ignore the people in the middle,” O’Connell cautions, observing that elections become less competitive. The result is an electorate that is more polarized than at any time since the Civil War. Reforming gerrymandering can remedy this trend by reducing the wings of both parties and appealing more to the center, he adds. “More moderate politicians come from areas where elections are contested.”
The tech and software advances that have emerged since 2010 have heightened the excesses of gerrymandering because they make it easier and cheaper to draw up redistricting maps, Harbison said. Gerrymandering specialists can now look at new sources of “big data” to determine how a block of voters will behave by using indicators like their shopping habits on Amazon.com. “There is an incredible amount of sophistication,” he added.
With state legislature control cemented in 2010 and high-powered digital tools, gerrymandering practitioners appear poised to thwart the demographic changes sweeping the country. Democrats once thought they would prevail as their core constituencies assumed larger shares of voting blocks and moved into states that were previously Republican strongholds, but they have found that the tools that entrenched legislatures weld make it tough to overcome disproportionate representation, explained O’Connell. Current efforts by state legislatures in Texas and Georgia reveal how eager those lawmakers are to reduce the power of voters in cities like Austin and Atlanta. Redistricting is one more means they are likely to use to secure their seats this year. “We can’t assume that demographic change will do it,” O’Connell concluded.
Those who use gerrymandering to solidify minority control have increasingly set their sights on the judicial as well as legislative bodies. Thirty-eight states elect Supreme Court judges rather than appoint them. In almost all of them, judicial candidates must run a statewide campaign. But in states like Pennsylvania and Texas, legislatures have worked to have Supreme Court judges elected by specific districts, like lawmakers, to tilt the bench toward the party who orchestrated the gerrymandered maps, O’Connell explained.
It is no wonder, argue the authors, that the majority of citizens polled say that they do not like gerrymandering. “Whether Democrat or Republican, 60 percent of voters are opposed to this method of redistricting,” O’Connell said. Yet the movement to uproot gerrymandering has taken off in only a handful of states. Reporters and pundits as well often echo the fatalistic view that reforming gerrymandering is a quixotic struggle.
That redistricting looms right after the release of the 2020 census data underscores the urgent need for just apportionment. That imperative is strongest for states that stand to gain or lose Congressional seats in 2022, O’Connell said. On the critical list are Pennsylvania and Michigan, which will lose representatives, as well as Florida, North Carolina and Texas, all slated to add seats.
Nonetheless, other states on the list have already put in place reforms likely to ensure a more accurate redrawing of maps than in cycles past. California, which will lose a congressional seat for the first time, became the “gold standard” in 2011 when the state under then Republican governor Arnold Schwarzenegger created a commission designed to check partisanship. Citizens apply to a selection committee independent of the governor or legislature to become one of fourteen commissioners – five Democrats, five Republicans, and four independents – who will draw the new maps in a transparent fashion. Members cannot have held or run for state or federal office prior to their selection. Nor can they act as a political candidate or appointee for ten years after their tenure is completed.
Pennsylvania has moved toward fairer redistricting in a more contentious fashion. When Republicans who control the legislature proposed heavily gerrymandered maps, citizen groups sued in state court. Not only did Pennsylvania’s Supreme Court examine the contorted shapes of many districts, but the judges also used the latest mathematical tools to measure whether voters were divided fairly among the proposed districts. “In Pennsylvania part of the court’s reasoning was that the maps made no sense,” O’Connell added.
Virginia, a state emerging as “purple,” has a hybrid commission that could serve as a model for battleground states undergoing similar political transformation, the primer suggests. After nearly a decade of citizen activism, Virginia came up with the a bi-partisan commission of legislators and citizens who draw up the maps and then submit them to the legislature for approval. If a mandated threshold fails to approve the maps, the state Supreme Court then appoints a “special master” to draw revised maps. Those agents when appointed in other states have “taken an impartial approach,” the primer concludes.
While some state courts like Pennsylvania’s have pushed for fairer redistricting, the federal judicial system has been reluctant to weigh in on reforming a gerrymandered system, O’Connell said. “One of the hallmarks of this Supreme Court is its antipathy to protecting voter rights,” he added, pointing to the 2013 Shelby County v. Holder decision that opened the way for unchecked gerrymandering in states like Texas and Georgia. That decision stripped the 1965 Voting Rights Act of any federal oversight of practices that restrict voting access in states where obstacles for Black Voters have historically existed. On occasion, the authors note, the Supreme Court has upheld lower court decisions, like the one in Cooper v. Harris in 2017 that invalidated North Carolina maps “on the grounds that they had been unconstitutionally drawn predominantly on the basis of race.” But when cases are brought that challenge partisan gerrymandering, the Supreme Court has declined to rule. “The Court essentially said in recent decisions ‘We are not mathematicians…We punt,” O’Connell said.
On a federal level the passage of the “For the People Act of 2021,” which aims to preserve voting rights and fair elections would be an invaluable reform, the authors concur. The proposed legislation would require that all states adopt the California model of an independent commission for remapping Congressional districts. “On the Congressional level, it is a massive reform,” O’Connell observed.
Even if the legislation becomes law this year as its Democratic sponsors hope, it would not directly affect how state districts are mapped. But the act might inspire people to seek change on the state level after witnessing the improvements on the federal, O’Connell said. Its passage might succeed in raising the awareness of voters that gerrymandering, while not as obvious as sharply reducing mail-in voting and poll stations, can still render their vote worthless.
Another cause for optimism is the ability of mathematics to make the process more transparent, maintains Harbison. Mathematics not only enhances our ability to evaluate the fairness of voting maps, but it also allows us to construct maps that try to reflect the actual strength and distribution of each party’s voters. Now when the shape of a district or the gap between the number of one party’s voters and the number of seats held in a state congressional delegation seem disproportionate, when it “smells funny,” as Harbison puts it, mathematical analysis can determine if partisan gerrymandering has gotten out of hand. “In bringing the process out into the light, math comes to the rescue,” Harbison adds.
In other ways Harbison and O’Connell see encouraging signs that gerrymandering can ultimately be turned around in the years to come. O’Connell praises voting rights activists like Stacey Abrams, the former Democratic gubernatorial candidate in Georgia, for her “nuts and bolts’ work to safeguard fair elections. Brian Cannon, the Director of Campaigns for the Institute for Political Innovation, wins his respect for patiently working for nearly a decade to make Virginia’s bipartisan redistricting commission a reality. Likewise, he lauds analysts like Michael Li at the Brennan Center for Justice for elucidation of how gerrymandering took hold and how insidious it is for democracy.
Optimism also springs from states that have adopted reforms that make it likely they will emerge from the 2020 cycle with fairer voting maps. New York, a state where gerrymandering prevailed, is set to rely on an advisory commission chosen largely by both Democratic and Republican legislators to recommend its new maps. That redistricting plan, which will allow for the loss of one Congressional seat, must then be approved by a super majority of the Assembly and Senate. “I am hopeful that New York will get some good maps,” said O’Connell.
Colorado, set to gain one Congressional seat, and Michigan, which will lose one seat, have given the task of redistricting to independent commissions like California’s. Ohio, which will also lose one seat, and Utah have also put reforms in place.
Obstacles to reform in the other battle ground states remain because they do not allow the ballot initiatives that birthed fairer procedures in places like California. Half the states still do not permit voters to decide at the polls if they want a reformed procedure. As a result, O’Connell said, “You have to convince their state legislatures to give up the power they now hold to draw maps that may ensure their incumbency.”
For these seemingly intractable states, civic activism matters enormously, O’Connell and Harbison say. At the primer’s end they lay out recommendations they believe will erode gerrymandering’s hold. They advise readers to push senators and representatives to support the “For the People Act” with its promise of ending gerrymandering on a federal level. Write and call their offices, they urge, attend upcoming town halls when they resume, make representatives aware you want legislation to safeguard voting rights and end partisan gerrymandering.
Secondly, they counsel, don’t lose sight of state elections. Press state lawmakers to establish an independent commission to oversee how maps for state elections are drawn. Most states, even those with processes that foster gerrymandering, require public meetings when they come up with new maps. “As a rule, no one shows up at those meetings,” Harbison mused. This time around find a way to discover the plans that are being concocted and make your voice heard if you don’t approve. If your state intends to establish a bipartisan commission, apply to serve on it, he adds.
One of the best ways to get involved with reforms is to join one of the state chapters of organizations like The League of Women Voters (https://www.lwv.org) or Common Cause (https://www.commoncause.org) that are already seeking to improve redistricting practices. FairMaps groups across the nation concentrate on organizing grassroots activists who lobby their state lawmakers for specific reforms, as OneVirginia2021 did. “You don’t have to reinvent the wheel, in most cases; you can simply volunteer for one of these organizations,” the authors write.
This task of reforming redistricting becomes more critical as states prepare to receive by September 30 detailed Census information about voters. “Now is the time to get cracking,” says O’Connell, who warns that inattention means the chance for fair redistricting could be lost for another decade. Harbison takes a more sanguine view that setbacks during this cycle do not mean that all is lost until after 2030. Citizens who begin trying to establish more bipartisan modes of redistricting may see gains in the years leading up to the next apportionment. And both he and O’Connell maintain that Democrats will not overlook the process at the state level as they did in 2010. “The Democrats are far, far behind in terms of history and experience,” Harbison said, but “there won’t be a roll over like 2010. They have their swords out.”
Activists across the political spectrum who oppose gerrymandering need to develop patience and a willingness to be informed and involved in state and local elections. “Gerrymandering is not a sexy topic,” O’Connell cautions. “It’s about long-term change. Lots of patience is needed.” He reminds those eager for quick fixes that it took a decade for Virginia to create its bipartisan commission. “No matter your political stance,” Gouverneur said, “You can make politicians have this as a topic of conversation.” Developing habits of thinking about state wide issues also bode well for citizen involvement when the redistricting phase has ended.
Reforming gerrymandering is at the heart of the current struggle to preserve democracy, Gouverneur and her fellow authors conclude. Unless we embrace the effort to change the current imbalanced and partisan system, many of us will continue to cast wasted votes. The time for giving into “doom and gloom” has passed, said O’Connell, who hopes that the primer will inspire his Harvard classmates and fellow citizens to take on the challenge of ending gerrymandering. “If people get involved, we should have a good shot at turning things around and having a functioning democracy.”
CLICK HERE FOR THE GERRYMANDERING PRIMER
