by Sylvia Mendoza
Gerrymandering is almost as old as the United States itself. Even before it had a name, Patrick Henry tried to draw a congressional map in Virginia that would have denied a seat to his rival James Madison, according to the Brennan Center for Justice, a nonpartisan law and policy organization.
The definition of gerrymandering is the manipulation of boundaries in congressional or legislative districts to favor one political party over another. It is a bipartisan issue, as both Republicans and Democrats use the tactic in an effort to keep their party in power.
“In 1810, when Massachusetts governor Elbridge Gerry drew a district in the shape of a salamander to corral his rivals and neutralize their influence…The term ‘gerrymander’ became a descriptive and ongoing part of the American political lexicon and life,” Carol Anderson wrote in her book One Person, No Vote: How Voter Suppression is Destroying Our Democracy. “By the late 19th century, gerrymandering was so pervasive and disruptive that President Benjamin Harrison called it nothing but ‘political robbery.’”
In her book, Anderson said that two types of gerrymandering resulted—racial and partisan. “Both were lethal,” she wrote
Some background
Redistricting or the redrawing of district boundaries occurs every 10 years following the U.S. Census. The purpose is to make sure that the U.S. Congress and state legislatures have adequate representation as the demographics of states shift. Two types of maps are drawn—congressional and legislative. Congressional maps determine the districts for representation in the U.S. House of Representatives and legislative maps determine representation in state legislatures.
When maps are drawn to favor one political party over another it is called partisan gerrymandering. The other form of gerrymandering is referred to as racial gerrymandering, and it is defined as manipulating district lines to under-represent racial minorities.
Racial gerrymandering is accomplished in two ways—packing and cracking. Packing is when those creating the voting map draw district lines to pack as many racial or ethnic minority voters as possible into one district. The marginalized voters will be able to elect their preferred candidate in that district, as a result of packing, but their voting strength is weakened in other districts. Cracking is when racial and ethnic minority voters are divided up among many districts so they can never obtain a majority of votes in any district to elect their preferred candidate. The purpose of packing and cracking is to dilute the political influence of racial and ethnic minority voters.
The U.S. Supreme Court ruled that racial gerrymandering is illegal, violating the Voting Rights Act of 1965 and the U.S. Constitution. The Court also ruled, however, that partisan gerrymandering is permitted.
In its 2019 decision in Rucho v. Common Cause, the Court acknowledged that partisan gerrymandering may be “incompatible with democratic principles.” However, the Court still determined that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” In other words, it would be left to the states to decide whether to permit partisan gerrymandering.
In a post to the Brennan Center’s website titled, “Gerrymandering Explained” Michael Li, senior democracy counsel for the Brennan Center and an expert on redistricting, wrote that the Court’s decision in Rucho v. Common Cause made gerrymandering worse.
“The Voting Rights Act and the U.S. Constitution prohibit racial discrimination in redistricting,” wrote Li. “But because there often is correlation between party preference and race, Rucho opens the door for Republican-controlled states to defend racially discriminatory maps on grounds that they were permissibly discriminating against Democrats rather than impermissibly discriminating against Black, Latino, or Asian voters.”
Li also points out that gerrymandering has come a long way since the days of Elbridge Gerry.
“Today, intricate computer algorithms and sophisticated data about voters allow map drawers to game redistricting on a massive scale with surgical precision,” Li wrote. “Where gerrymanderers once had to pick from a few maps drawn by hand, they now can create and pick from thousands of computer-generated maps.”
Who draws the lines?
The rules for who is responsible for redistricting or redrawing voting maps vary from state to state. In 39 states legislators draw the lines, giving whichever party is in power at the state level primary control over their own district lines. Eleven states use independent commissions. States that only have one seat in the U.S. House of Representatives—Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming —do not draw congressional maps, just state legislative maps.
Nick Seabrook, a political science professor at the University of North Florida and author of One Person, One Vote: A Surprising History of Gerrymandering, told The Los Angeles Times that the national media should pay more attention to the gerrymandering of state legislative maps.
“Look at Wisconsin,” Professor Seabrook said. “Republicans’ margin in the state legislature has barely dipped below two-thirds since 2010 despite elections where the Democrats won the popular vote overall. So, that’s worse in terms of its anti-democratic implications. You have entire state governments uncompetitive for a decade.”
What happens in New Jersey
In New Jersey, two separate commissions draw its electoral maps. Members of the New Jersey Redistricting Commission, made up of six Democrats, six Republicans and one independent, draw the map for congressional seats in the U.S. House of Representatives. The New Jersey Apportionment Commission, made up of five Democrats and five Republicans, draw the legislative map for the Garden State’s 40 districts for the State Legislature.
In 2021, after New Jersey’s congressional map was drawn, the Republican members of the Redistricting Commission brought a lawsuit against the Commission challenging the map. According to the American Redistricting Project, a nonpartisan, nonprofit organization dedicated to educating the public on redistricting, the plaintiffs in Steinhardt v. New Jersey Redistricting Commission took issue with the decision of the independent member of the Commission, whose tie-breaking vote adopted the Democratic congressional redistricting plan. The independent Commissioner stated that “fairness” required him to take that position “because the Republicans’ map was selected during the last redistricting cycle.”
In February 2022, the New Jersey State Supreme Court unanimously dismissed the lawsuit. In the order that dismissed the complaint, the New Jersey Supreme Court said, “It is not the Court’s task to decide whether one map is fairer or better than another. We review redistricting plans only to determine if the map selected is ‘unlawful.’ So long as the final map is constitutional, the Court cannot grant any relief.”
Challenges to voting maps
As of August 2024, according to the Brennan Center, the maps in 28 states had been challenged after the redistricting process. There were 49 challenges to congressional maps and 51 challenges to legislative maps.
According to ABC News, “More than a half-dozen states face the prospect of having to go through the redistricting process again, mostly due to federal and/or state litigation over racial or partisan gerrymandering concerns.” As the 2024 presidential election neared, the courts issued rulings on the constitutionality of some of those maps.
For example, the congressional map for Alabama was challenged because it contained just one majority Black district out of seven even though the Black voting population in Alabama is approximately 26%. In June 2023, the U.S. Supreme Court issued a 5-4 ruling stating that Alabama diluted the power of Black voters when it drew the state’s congressional map. The Alabama State Legislature was ordered to redraw the district lines to give Black voters a second majority district.
In May 2024, the U.S. Supreme Court restored a congressional map in Louisiana that includes two majority Black districts. The Court’s narrow ruling only determined what map would be used for the 2024 election. It allows appeals objecting to the map to move forward.
Also in May 2024, the U.S. Supreme Court allowed South Carolina to use a congressional map that a lower court had ruled weakened the voting rights of Black voters. According to reporting from The Washington Post, “The Supreme Court called the evidence that race motivated lawmakers [in drawing the map] weak and said courts needed to presume they acted in good faith.”
Justice Samuel A. Alito Jr.’s majority opinion noted that many predominantly Black precincts in Charleston were moved out of one district and into another. However, Justice Alito wrote, “Because of the tight correlation between race and partisan preferences, this fact does little to show that race, not politics drove the legislature’s choice.”
In Justice Elena Kagan’s dissenting opinion, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, she noted that those who draw these maps use racial data to shape the partisan makeup of districts and the Court’s majority is saying that’s okay.
“Go right ahead, this Court says to States today,” Justice Kagan wrote. “Go ahead, though you have no recognized justification for using race, such as to comply with statutes ensuring equal voting rights. Go ahead, though you are (at best) using race as a short-cut to bring about partisan gains—to elect more Republicans in one case, more Democrats in another. It will be easy enough to cover your tracks in the end: Just raise a ‘possibility’ of non-race-based decision-making, and it will be ‘dispositive.’”
In a podcast interview, Professor Seabrook said, “Gerrymandering is why our government is so dysfunctional.” He reiterated the power of civic engagement and voting in elections to hold elected representatives accountable for what they do. “There’s a lack of that in America right now. The voters are supposed to choose the politicians. The politicians are not supposed to choose the voters.”
Discussion Questions
- Why do you think the U.S. Supreme Court ruled that racial gerrymandering is illegal but partisan gerrymandering is permitted?
- In Rucho, the U.S. Supreme Court acknowledged that partisan gerrymandering may be “incompatible with democratic principles.” Do you agree or disagree? Explain your answer.
- Professor Seabrook believes voting and civic engagement is important to hold elected officials accountable. Do you agree or disagree with that statement? Explain your answer.
Glossary
algorithm—a set of rules to be followed in calculations.
appeal — a complaint to a higher court regarding the decision of a lower court.
bipartisan — supported by two political parties.
dispositive—to bring about the settlement of an issue.
dissenting opinion — a statement written by a judge or justice that disagrees with the opinion reached by the majority of his or her colleagues.
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
nonpartisan— not adhering to any established political group or party.
partisan — someone who supports a party or cause with great devotion.
plaintiff — person or persons bringing a civil lawsuit against another person or entity.
This article originally appeared in the fall 2024 issue of Respect–Special Voting Rights Edition.