Gerrymandering

Redistricting
State-by-state redistricting procedures
Majority-minority districts
Congressional district demographics
United States census, 2020

The term gerrymandering refers to the practice of drawing electoral district lines to favor one political party, individual, or constituency over another. When used in a rhetorical manner by opponents of a particular district map, the term has a negative connotation but does not necessarily address the legality of a challenged map. In this context, proponents may counter that the map has not been gerrymandered but has been drawn to conform with overlapping, potentially conflicting redistricting standards. The term can also be used in legal proceedings and documents; in this context, the term describes redistricting practices that violate federal or state laws.

This article provides summary information about gerrymandering, including relevant history and legal precedents. See the sections below for further information on the following topics:

1. Background: This section summarizes the history of the word gerrymandering and discusses current usage of the term.
2. Racial gerrymandering: This section discusses the concepts of racial gerrymandering and majority-minority electoral districts. Summaries of some relevant court cases are also provided.
3. Partisan gerrymandering: This section describes the concept of partisan gerrymandering and summarizes a sample of relevant court cases.

Background

History

This political cartoon was printed in March 1812 to criticize the state senate district map approved by Massachusetts Governor Elbridge Gerry.

According to Justin Levitt, a professor at Loyola University, "American attempts to tailor district lines for political gain stretch back to the country's very origin."

“	Patrick Henry, who opposed the new Constitution, tried to draw district lines to deny a seat in the first Congress to James Madison, the Constitution's primary author. Henry ensured that Madison's district was drawn to include counties politically opposed to Madison. The attempt failed, and Madison was elected -- but the American gerrymander had begun.	”
—Justin Levitt, All About Redistricting

The term gerrymander dates to the early 19th century. In 1812, Massachusetts Governor Elbridge Gerry signed into law a state senate district map. The map, according to the Encyclopædia Britannica, "consolidated the Federalist Party vote in a few districts and thus gave disproportionate representation to Democratic-Republicans." The word gerrymander was coined by The Boston Gazette to describe the district (gerrymander is a portmanteau of Gerry's name and the word salamander; the map's opponents argued that the shape of the disputed district resembled that of a salamander).

Term usage

Generally, the term is used in two broad contexts:

1. Term of disparagement: Opponents of an electoral district map may characterize that map as being gerrymandered to favor one political party, individual, or constituency over another in an unfair manner. In this context, the term has a negative connotation but does not necessarily speak to the legality of a challenged district or map. The Boston Gazette, in coining the expression, used the term in this manner.
2. Legal term: In legal documents (i.e., amicus briefs, court decisions, etc.), gerrymander is used to describe situations in which "political or electoral districts are drawn with the purpose of giving one political group an advantage over another" in violation of federal or state laws. For examples of this usage, see the decisions of the Supreme Court of the United States in Hays v. Louisiana and Cooper v. Harris.

This article discusses several court cases relevant to gerrymandering. The table below summarizes these cases (click the case name for a more detailed description of the case).

Gerrymandering court cases
Case name	Year	Outcome
Thornburg v. Gingles	1986	The Supreme Court of the United States (SCOTUS) established three criteria to prove claims of vote dilution (e.g., racial gerrymandering) under Section 2 of the Voting Rights Act.
Vieth v. Jubelirer	2004	SCOTUS issued a split decision, declining to intervene in a case involving the question of illegal partisan gerrymandering. A plurality of the court's members argued that partisan gerrymandering is not justiciable under the United States Constitution.
Harris v. Arizona Independent Redistricting Commission	2016	SCOTUS ruled that opponents of Arizona'a state legislative district map had failed to prove that an illegal partisan gerrymander had occurred.
Cooper v. Harris	2017	SCOTUS affirmed a district court decision finding that two of North Carolina's congressional district maps had been subject to an illegal partisan gerrymander. The majority opinion noted the correlation between racial and partisan gerrymandering, suggesting that a map is illegal if race is used to benefit or harm one party over another.
Gill v. Whitford	2017	SCOTUS heard oral argument in this case, which deals with partisan gerrymandering, in October 2017. A ruling is expected in 2018.

Racial gerrymandering

See also: Majority-minority districts

Section 2 of the Voting Rights Act of 1965 mandates that no "standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." In the context of redistricting, federal law prohibits racial gerrymandering: the practice of drawing electoral district lines to dilute the voting power of racial minority groups.

Majority-minority districts

Federal law establishes that, to combat racial gerrymandering and to ensure compliance with the Voting Rights Act, states and jurisdictions may create majority-minority electoral districts. A majority-minority district is one in which a racial minority group or groups compose a majority of the district's total population. Thornburg v. Gingles, a case decided by the Supreme Court of the United States in 1986, established a three-part test for proving whether vote dilution in violation of the Voting Rights Act has occurred in a district.

Support and opposition

Proponents of majority-minority districts argue that these districts are a necessary hindrance to the practice of cracking, which occurs when a constituency is divided between several districts in order to prevent it from achieving a majority in any one district. In an April 2015 report for the Congressional Research Service, legislative attorney L. Paige Whitaker described this argument as follows:

“	A majority-minority district is one in which a racial or language minority group comprises a voting majority. The creation of such districts can avoid racial vote dilution by preventing the submergence of minority voters into the majority, which can deny minority voters the opportunity to elect a candidate of their choice.	”
—L. Paige Whitaker

In addition, supporters argue that the drawing of majority-minority districts has resulted in an increased number of minority representatives in state legislatures and Congress. The American Civil Liberties Union, in a 2001 report, made this argument:

“	In 1964, there were only about 300 black elected officials nationwide. By 1998 the number had grown to more than 8,858. This increase is the direct result of the increase in majority-minority districts since passage of the Voting Rights Act in 1965. ... Given the persistent patterns of racial bloc voting in the South, the destruction of majority-minority districts, whether at the congressional or state and local levels, would inevitably lead to a decline in the number of minority office holders.	”
—American Civil Liberties Union

Critics contend that the establishment of majority-minority districts can result in packing, which occurs when a constituency or voting group is placed within a single district, thereby minimizing its influence in other districts. Kim Soffen, writing for The Washington Post in June 2016, summarized this argument as follows:

“	Imagine the minority-favored candidate can win an election in a district if at least 30 percent of voters are minorities. What harm is done by the legislators packing the district up to 50 percent minority voters? Much like political gerrymandering, it limits black influence in surrounding districts. It would require the creation of, for instance, a 50 percent and a 10 percent black district, rather than two 30 percent black districts. In other words, the requirement would give black voters one representative of their choice rather than two.	”
—Kim Soffen

Because minority groups tend to vote Democratic, critics argue that majority-minority districts ultimately present an unfair advantage to Republicans by consolidating Democratic votes into a smaller number of districts. Steven Hill, writing for The Atlantic in June 2013, made the following argument:

“	The drawing of majority-minority districts not only elected more minorities, it also had the effect of bleeding minority voters out of all the surrounding districts. Given that minority voters were the most reliably Democratic voters, that made all of the neighboring districts more Republican. The black, Latino, and Asian representatives mostly were replacing white Democrats, and the increase in minority representation was coming at the expense of electing fewer Democrats.	”
—Steven Hill

Court cases

Below is a sampling of decisions issued by the Supreme Court of the United States that are relevant to the concept of racial gerrymandering. Cases are listed in reverse chronological order.

Cooper v. Harris (2017)

See also: Cooper v. Harris

In Cooper v. Harris, decided on May 22, 2017, the Supreme Court of the United States affirmed the judgment of the United States District Court for the Middle District of North Carolina, finding that two of North Carolina's congressional districts, the boundaries of which had been set following the 2010 United States Census, had been subject to an illegal racial gerrymander in violation of Section 2 of the Voting Rights Act. Justice Elena Kagan delivered the court's majority opinion, which was joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor (Thomas also filed a separate concurring opinion). In the court's majority opinion, Kagan described the two-part analysis utilized by the high court when plaintiffs allege racial gerrymandering as follows: "First, the plaintiff must prove that 'race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.' ... Second, if racial considerations predominated over others, the design of the district must withstand strict scrutiny. The burden shifts to the State to prove that its race-based sorting of voters serves a 'compelling interest' and is 'narrowly tailored' to that end." In regard to the first part of the aforementioned analysis, Kagan went on to note that "a plaintiff succeeds at this stage even if the evidence reveals that a legislature elevated race to the predominant criterion in order to advance other goals, including political ones." Justice Samuel Alito delivered an opinion that concurred in part and dissented in part with the majority opinion. This opinion was joined by Chief Justice John Roberts and Justice Anthony Kennedy.

Thornburg v. Gingles (1986)

See also: Thornburg v. Gingles

Justice William J. Brennan Jr.

In 1982, the North Carolina state legislature approved redistricting plans for the North Carolina State Senate and the North Carolina House of Representatives. The maps were challenged in United States District Court. The challengers alleged that the new maps "impaired black citizens' ability to elect representatives of their choice in violation of Section 2 of the Voting Rights Act." The district court ruled that six legislative districts violated the Voting Rights Act "by diluting the power of the black vote." The decision was appealed to the Supreme Court of the United States.

On June 30, 1986, the high court ruled unanimously in Thornburg v. Gingles that five of the aforementioned six districts "discriminated against blacks by diluting the power of their collective vote." Justice William J. Brennan Jr., wrote the majority opinion, which largely upheld the district court's original ruling.

“	The District Court in this case carefully considered the totality of the circumstances and found that, in each district, racially polarized voting; the legacy of official discrimination in voting matters, education, housing, employment, and health services; and the persistence of campaign appeals to racial prejudice acted in concert with the multimember districting scheme to impair the ability of geographically insular and politically cohesive groups of black voters to participate equally in the political process and to elect candidates of their choice.	”
—Justice William J. Brennan Jr.

In Thornburg v. Gingles, the court also established three criteria that must be met in order "to prove claims of vote dilution under section 2 [of the Voting Rights Act]:"

1. "The minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district."
2. "The minority group must be able to show that it is politically cohesive."
3. "The minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate."

Partisan gerrymandering

The phrase partisan gerrymandering refers to the practice of drawing electoral district maps with the intention of favoring one political party over another. In contrast with racial gerrymandering, on which issue the Supreme Court of the United States has issued rulings in the past affirming that such practices violate federal law, the high court had not, as of November 2017, issued a ruling establishing clear precedent on the question of partisan gerrymandering. According to The Wall Street Journal in an article discussing Gill v. Whitford (see below), "Some Supreme Court justices have previously expressed concern about partisan gerrymandering, but a majority of the court has been hesitant to intervene so directly in the American political process and to say how much partisanship is too much." Robert Barnes, writing on June 19, 2017, for The Washington Post, made a similar observation: "[The] Supreme Court has long been tolerant of partisan gerrymandering – and some justices have thought that the court shouldn't even be involved."

Court cases

Below is a sampling of decisions issued by the Supreme Court of the United States that are relevant to the concept of partisan gerrymandering. Cases are listed in reverse chronological order.

Gill v. Whitford (2016-2017)

See also: Gill v. Whitford

In June 2012, Democrats assumed a one-vote majority in the Wisconsin State Senate as the result of a series of recall elections. Although Democrats lost the majority five months later, they were able, in the meantime, to compel law firm Michael Best and Friedrich to turn over files related to the 2011 redistricting cycle (Republicans tasked with drafting new maps in 2011 worked out of the Michael Best and Friedrich office in Madison, Wisconsin). Before Democrats assumed the majority, they had asked Michael Best and Friedrich to turn over the requested records, but the firm refused, saying that it answered to the majority leader. Democrats used these records as evidence when they filed suit in federal district court, alleging that the Wisconsin State Assembly map treated voters "unequally, diluting their voting power based on their political beliefs, in violation of the Fourteenth Amendment's guarantee of equal protection." On November 21, 2016, the United States District Court for the Western District of Wisconsin struck down the district map for the Wisconsin State Assembly, finding in favor of the plaintiffs, a group of state Democrats. The court ruled 2-1 on the matter, with Judges Kenneth Ripple and Barbara Crabb forming the majority. Ripple wrote the following in the court's majority opinion:

“	We find that Act 43 [the redistricting plan enacted by the state legislature in 2011] was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.	”
—Judge Kenneth Ripple

Judge William Griesbach dissented and wrote the following in his dissent:

“	I am unable to accept proof of intent to act for political purposes as a significant part of any test for whether a task constitutionally entrusted to the political branches of government is unconstitutional. If political motivation is improper, then the task of redistricting should be constitutionally assigned to some other body, a change in law we lack any authority to effect.	”
—Judge William Griesbach

The court declined to order a remedy when it issued its ruling. Instead, the court ordered the parties involved in the case to submit briefs outlining recommended remedies within 30 days.

The plaintiffs in the case proposed a three-part test for determining whether illegal partisan gerrymandering has occurred in a state.

1. Intent: "Plaintiffs would have to establish that a state had an intent to gerrymander for partisan advantage."
2. Effect: "Plaintiffs would need to prove a partisan effect by proving that the efficiency gap for a plan exceeds a certain numerical threshold."
3. State interest: "Plaintiffs placed the burden on the defendants to rebut the presumption by showing that the plan 'is the necessary result of a legitimate state policy, or inevitable given the state's underlying political geography.'"

Peter Barca (D), the minority leader of the Wisconsin State Assembly, said, "This is an historic victory for voters and further admonishment of the extremely slanted maps that trample the democratic will of the people of Wisconsin." Assembly Speaker Robin Vos (R) said, "There are only two things that are certain about this case: it's unprecedented and it isn't over. The state of Wisconsin has competitive legislative districts that meet every traditional principle of redistricting. Republicans win elections because we have better candidates and a better message that continues to resonate with the voters."

On January 27, 2017, the court ordered state lawmakers to draft a remedial redistricting plan for use in the November 2018 election. The court ordered that this plan be adopted by the legislature and signed into law by the governor by November 1, 2017. On March 24, 2017, state attorneys petitioned the Supreme Court of the United States to reverse the district court's ruling.

On June 19, 2017, the Supreme Court of the United States announced that it would hear the case, Gill v. Whitford. The court also voted 5-4 to stay the district court decision that ordered Wisconsin lawmakers to draft new maps by November 1, 2017. Chief Justice John Roberts and Associate Justices Clarence Thomas, Anthony Kennedy, Samuel Alito, and Neil Gorsuch voted to stay the district court order. Associate Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer dissented. Oral argument in the case took place on October 3, 2017. On June 18, 2018, the Supreme Court of the United States ruled that the plaintiffs had failed to demonstrate standing to bring the complaint under Article III of the United States Constitution. The court's opinion, penned by Roberts, did not address the broader question of whether partisan gerrymandering claims are justiciable and remanded the case to the lower court for further proceedings. Roberts was joined in the majority opinion by Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan. Kagan wrote a concurring opinion joined by Ginsburg, Breyer, and Sotomayor. Thomas authored an opinion that concurred in part with the majority opinion and in the judgment, joined by Gorsuch.

In response to the ruling, Bill Whitford, a plaintiff in the suit, said, "The discouraging thing is just the delay. We have a road map forward ... I don't think we'll have any difficulty meeting the burdens the court asked us to meet." Wisconsin Solicitor General Misha Tseytlin doubted the viability of a further challenge, saying, "I think it is quite notable that [the plaintiffs] put together a failry large, well-funded litigation team, had a four-day trial, and the Supreme Court unanimously held 9-0 they did not prove the basis of standing. The plaintiffs here failed to prove up the minimal standing to even bring a lawsuit."

On September 14, 2018, in response to the high court's ruling in Gill, the plaintiffs filed an amended complaint in the United States District Court for the Western District of Wisconsin. Also on September 14, 2018, the Wisconsin Assembly Democratic Committee filed a similar but separate suit in the same court.

Harris v. Arizona Independent Redistricting Commission (2016)

Justice Stephen Breyer penned the majority opinion in Harris v. Arizona Independent Redistricting Commission.

See also: Harris v. Arizona Independent Redistricting Commission

Harris v. Arizona Independent Redistricting Commission was a case decided by the Supreme Court of the United States in 2016. At issue was the constitutionality of state legislative districts that were created by the commission in 2012. The plaintiffs, a group of Republican voters, alleged that "the commission diluted or inflated the votes of almost two million Arizona citizens when the commission intentionally and systematically overpopulated 16 Republican districts while under-populating 11 Democrat districts." This, the plaintiffs argued, constituted a partisan gerrymander. The plaintiffs claimed that the commission placed a disproportionately large number of non-minority voters in districts dominated by Republicans; meanwhile, the commission allegedly placed many minority voters in smaller districts that tended to vote Democratic. As a result, the plaintiffs argued, more voters overall were placed in districts favoring Republicans than in those favoring Democrats, thereby diluting the votes of citizens in the Republican-dominated districts. The defendants countered that the population deviations resulted from legally defensible efforts to comply with the Voting Rights Act and to obtain approval from the United States Department of Justice. At the time of redistricting, certain states were required to obtain preclearance from the justice department before adopting redistricting plans or making other changes to their election laws—a requirement struck down by the United States Supreme Court in Shelby County v. Holder (2013). On April 20, 2016, the court ruled unanimously that the plaintiffs had failed to prove that a partisan gerrymander had taken place. Instead, the court found that the commission had acted in good faith to comply with the Voting Rights Act. The court's majority opinion was penned by Justice Stephen Breyer.

Vieth v. Jubelirer (2004)

Vieth v. Jubelirer was a case decided by the Supreme Court of the United States in 2004. The case was brought by a group of Pennsylvania Democrats who alleged that the state legislature, controlled by Republicans at the time of the 2000 redistricting cycle, had developed a congressional district map that constituted an illegal partisan gerrymander. The plaintiffs alleged that the map "violated the one-person, one-vote principle of Article 1, Section 2, of the Constitution, the Equal Protection clause, the Privileges and Immunities clause, and the freedom of association [clause]." According to Oyez, a federal district court "found the act unconstitutional because it created districts with different numbers of voters, thereby violating the one-person, one-vote principle. Because the plaintiffs had shown that it was possible to create districts with smaller differences, and because the defendants had failed to justify the disparities resulting under their plan, it was therefore unconstitutional." The case was appealed to the Supreme Court of the United States. At issue in the case were the following questions:

“	Can voters affiliated with a political party sue to block implementation of a Congressional redistricting plan by claiming that it was manipulated for purely political reasons? Does a state violate the Equal Protection clause of the 14th Amendment when it disregards neutral redistricting principles (such as trying to avoid splitting municipalities into different Congressional districts) in order to achieve an advantage for one political party? Does a state exceed its power under Article I of the Constitution when it draws Congressional districts to ensure that a minority party will consistently win a super-majority of the state's Congressional seats?	”
—Oyez

Justice Antonin Scalia penned the plurality opinion in Vieth v. Jubelirer.

On April 28, 2004, the court issued a split decision with no majority opinion, declining to intervene in the case. The plurality opinion was penned by Associate Justice Antonin Scalia and joined by Chief Justice William Rehnquist and Associate Justices Sandra Day O'Connor and Clarence Thomas. Referring to Davis v. Bandemer, a 1986 decision in which the high court ruled that partisan gerrymandering claims can be tried in court under the Equal Protection Clause, Scalia wrote the following in the court's plurality opinion:

“	We conclude that neither Article I, §2, nor the Equal Protection Clause, nor (what appellants only fleetingly invoke) Article I, §4, provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting. ... Eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims.	”
—Associate Justice Antonin Scalia

Associate Justice Anthony Kennedy wrote a concurring opinion that, according to Oyez, argued the court "should rule narrowly in this case that no appropriate judicial solution could be found, but not give up on finding one eventually." Associate Justice David Souter, joined by Associate Justice Ruth Bader Ginsburg, penned a dissenting opinion supporting the court's earlier ruling in Davis v. Bandemer that partisan gerrymandering claims are justiciable under the Equal Protection Clause (Souter's opinion also proposed a new test for proving claims of illegal partisan gerrymandering). Associate Justices Stephen Breyer and John Paul Stevens penned separate dissents, both asserting the justiciability of partisan gerrymandering claims.

See also

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• Redistricting
• State-by-state redistricting procedures
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• Partisan symmetry

External links

• All About Redistricting
• National Conference of State Legislatures on the Redistricting Process
• FairVote on Redistricting

Footnotes

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