The Constitutionality of Partisan Gerrymandering

In October, gerrymandering in the United States took an even more national audience with the presentation of the first oral arguments of Gill v. Whitford, a Wisconsin redistricting case in the Supreme Court. The political definition of gerrymandering is “when political or electoral districts are drawn with the purpose of giving one political group an advantage over another.”[1] Although gerrymandering is easily characterized by the media as a partisan move to undermine democracy, the intricacies of the issue go deeper beyond partisan redistricting. There are multiple factors to consider when examining gerrymandering, and this piece examines how the United States, in legislation and in precedents set on previous cases, has created the opportunity for gerrymandering to become rampant. It will also discuss two mathematical standards that have the potential to determine unconstitutional district maps and allow the courts to rule on gerrymandering claims.

Existing legislation may conflict with the constitutionality of partisan gerrymandering. The Voting Rights Act of 1965 mandated that states are required to have districts that allow minority voters to select the candidate they want.[2] However, this has been exploited by parties through the gerrymandering strategy called packing, which puts all same-party voters into one area. This process tends to lead to strong majority wins, so the candidate in that district wins by an overwhelming majority.[3] This strategy packs districts with minorities by taking those minorities out of neighboring districts. In essence, this simply causes white candidates to be replaced with minority candidates along the same party lines. In 1994, the Republicans were able to take control of the House for the first time in over 30 years, but this was also the same year that “African-American membership in the House reached its highest level ever, at 40 [representatives].”[4] By removing minority voters from battleground districts on the premise of complying with the Voting Rights Act, the districts that were battleground became easy targets for Republicans because there were so few Democratic constituents and therefore, little competition.

The second constitutional ruling on gerrymandering is the justiciability of partisan gerrymandering. In 1986, the current standard of justiciability of partisan gerrymandering was established by the Supreme Court in Davis v. Bandemer. In Davis v. Bandemer, Indiana Democrats argued against the districting map of 1981 because of perceived gerrymandering. On justiciability, the Supreme Court affirmed that courts can rule on partisan gerrymandering but that there is still no standard for judicial review on gerrymandering cases. The bar that Davis set was incredibly high because there would have to be proof that a district map has “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.”[5] Keesha Gaskins, senior counsel at the Brennan Center’s Democracy Program, elaborates, “neutral standards [for judging gerrymandering] really are incredibly arbitrary…[since] communities of interest [can] line up along partisan lines.”[6] Districts that may seem gerrymandered may only be the pre-existing lines of the community, drawn without political intent. This is in part attributed to the mobility of Americans; communities have segregated into distinct political parties with marked differences.[7] It has become easier to sort oneself, even unconsciously, into a community whose values one agrees with because of the already existing enclaves, which causes stark dichotomies between political views and therefore, party support.

Due to the ambiguous definition of gerrymandering, courts have been divided in their opinions of the constitutionality of gerrymandering, from the decision in Davis to the newer case, Vieth v. Jubelirer. In Vieth, Democratic voters sued the Pennsylvania General Assembly, arguing that the map was too gerrymandered for the Democrats to be accurately represented in the votes for the elections of representatives. The plaintiffs argued that the district map was in violation of the 14th Amendment Equal Protection Clause and Article I of the Constitution, which guarantees the weight of one vote to one person.[8]. In Vieth v. Jubelirer, the justices stated that courts could not rule on partisan gerrymandering because there was no real standard for measuring gerrymandering claims. However, the ruling in Davis failed to be overturned because Justice Anthony Kennedy authored a concurring opinion that signaled the possibility of justiciability. He said that although there was currently “no workable standard for adjudicating political gerrymandering claims,” the courts should still attempt to find a standard because “if courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow.”[9] In the national status quo, Kennedy believes that current gerrymandering standards are not appropriate enough to allow the courts to pass rulings on gerrymandering but if there are standards that become acceptable to determine unconstitutional gerrymandering, the courts will be responsible for remedying this problem.

The demand for standards to measure gerrymandering have emerged from issues underlying these Supreme Court cases. This demand has led to the creation of two standards which have been used in recent gerrymandering cases in the United States. The first one is the partisan symmetry standard, developed by Andrew Gelman, a statistics professor at Columbia University and Gary King, a political science professor at Harvard University. The partisan symmetry standard was used in LULAC v. Perry, a case about Texas’s redistricting plan which was ruled to be constitutional except for the Texas district of 23, which violated the Voting Rights Act. The basis for the partisan symmetry standard is that the distribution of popular votes to congressional seats should be equal for either party.[10] For example, when a 70% win of the popular vote for the Republicans gets them 73% of congressional seats, that same percentage should apply to Democrats as well. Michael Latner, a political science professor at California Polytechnic State University, has claimed that “symmetry simply demands that every voter receives the same strength of representation, regardless of which party they vote for.”[11] However, the problem with this standard is that the American political system obfuscates the true test of gerrymandering, which needs to prove redistricting was used to give a political party an unfair advantage in representation.

The winner-take-all system that the United States implements is a major reason why gerrymandering has become so popular. There is no proportional representation to votes; whoever wins the majority wins the single seat. A leading cause of disproportionate representation in state legislatures is the combination of “single-seat, winner-take-all districts… with the over-concentration of Democratic voters,”[12] writes Steven Hill, co-founder of FairVote, an organization that advocates for electoral reform in the U.S. In the 7th District Court of Appeals, Judge Ripple in the Gill v. Whitford case says that the Republican party already had “a modest natural advantage in districting” because of the natural packing of Wisconsin Democrats in urban areas.[13] Furthermore, the defining criticism of this standard is that political parties are not entitled to the same protections under the U.S. Constitution as citizens. The Equal Protection Clause in the 14th Amendment only specifies protection for individual citizens, not parties, which Justice Antonin Scalia emphasized in Vieth. However, parties are disadvantaged by the criterion because they are composed of citizens who enjoy the full protection of the Equal Protection Clause. To say that a political party cannot be protected under the 14th Amendment but members of that political party can be protected punishes citizens for simply affiliating with a party.

The second standard is the efficiency gap, developed by the University of Chicago Law School professor Nicholas Stephanopoulos and Eric McGhee, a research fellow at the Public Policy Institute of California. This quantitative metric measures gerrymandering by assessing the wasted votes in a state. A wasted vote is a vote for a candidate that doesn’t directly contribute to their victory. This means that after a certain threshold has been reached to ensure victory of a candidate, all the votes that are unneeded to secure victory are wasted, including the votes for the opposition. In winner-takes-all terms, this means that if there are 100 voters total and there are 80 votes for the Republican candidate and 20 votes for the Democratic candidate, the Republicans would have 29 wasted votes (80 actual votes – 51 votes needed to secure victory) and the Democrats would have 20 wasted votes because their votes didn’t matter at all in the election of the Republican candidate. The efficiency gap standard is measured by taking the differences of the sums of each party’s wasted votes. This number then needs to be divided by the total number of votes to find the percentage of the efficiency gap.[14] In the previous example, if the Republicans have 29 total wasted votes and the Democrats had 20 total wasted votes and there were 100 total votes cast in the state, the efficiency gap would be (29-20)/100 = 0.09. Stephanopoulos and McGhee estimate that in a district map that is completely non-partisan, the efficiency gap would be 0 while an efficiency gap of over 7% means that the party with less wasted votes could control the state with the current map and is therefore suspect to gerrymandering.[15] This standard is being used to argue the current case of Gill v. Whitford in the Supreme Court in 2017. Gill v. Whitford is a Wisconsin case in which state Democrats sued on the basis that Wisconsin’s State Assembly map from 2011 violates the Equal Protection Clause in the 14th Amendment because Democratic votes are diluted. The 7th District Court of Appeals chose not to use this method or the partisan symmetry standard. Instead, Judge Ripple used the more conservative standard of discriminatory intent of redistricting and whether the partisan effects were justified.[16] The 2-1 ruling held that the majority “was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats,”[17] even taking into account the natural advantage Wisconsin Republicans had over Democrats in the natural packing of Democratic voters in urban areas.

The efficiency gap standard most accurately deduces the impact of gerrymandering because besides packing, there are numerous strategies for political parties to redistrict maps to their advantage. Lois Beckett of ProPublica, a nonprofit investigative journalism organization, identifies the four most prominent methods of gerrymandering. The first is cracking, which is the spacing out of partisan voters. An example would be taking all the eligible Republican voters and putting small, insignificant amounts of them into heavily Democratic districts, so the votes get diluted. The second method is the packing which inundates districts with mostly Democratic or Republican voters; a subset of this is the bleaching of minorities, which involves racial packing; instead of packing voters based on political parties, voters get packed based on their race.[18] Bleaching has been ruled as unconstitutional by the courts in the past in Cooper v. Harris, in which North Carolina’s district maps were struck down because they used race too heavily in drawing their maps.[19] The third method is kidnapping, in which a representative is put in an almost entirely different district, with a substantial amount of new constituents. The fourth method is hijacking, which pits candidates of the same party against each other. The efficiency gap standard better measures gerrymandering than the partisan symmetry standard because the gap provides an estimate of wasted votes (closer to the definition of gerrymandering) rather than equal proportionality, which can be influenced by natural political disproportions.

Both of the two abovementioned metrics focus on packing and cracking. It’s much easier to delineate wasted votes and partisan symmetry with these two gerrymandering tactics than hijacking and kidnapping. In packing, partisan symmetry is able to ascertain gerrymandering to a certain extent because in the event that packed voters vote for one party and yet the other party wins more seats because of district maps, partisan symmetry can be used easily to determine unconstitutional gerrymandering. Wasted votes are also easy to see here through the efficiency gap standard; because wasted votes are votes that don’t cause a victory, packed voters are often classified as wasted votes because they voted either for the candidate that was already going to win by a large margin or a candidate that didn’t win. Cracking is often more common in gerrymandering and the way cracking is analyzed is similar to packing through the partisan symmetry standard. When voters are spaced out to where their votes are diluted and cannot be heard because of their systematic segregation, the partisan symmetry standard will still show the majority of the total votes compared to the seats won by one party. In the efficiency gap standard, wasted votes will more heavily lean on the definition of the vote that was cast for the losing candidate rather than “extra” votes for the winning candidate. Although an adequate estimate in packing and cracking gerrymandering methods, these two standards still need additions to include the more nuanced methods of gerrymandering in the United States. The growth of new and inventive ways to dilute the democratic process for political gains demands not just these two standards but many more metrics to accurately measure claims of gerrymandering. The efficiency gap and partisan symmetry measure the more popular methods of gerrymandering but in the instance of hijacking and kidnapping, these two standards are poorly equipped to handle gerrymandering claims. Neither standard can reliably measure these two latter gerrymandering methods, which can cause grossly drawn partisan maps to slip under the radar and continue to operate as a facade of fairness.

Because of the lack of reliability in gerrymandering standards, the Supreme Court is evenly divided on the justiciability of gerrymandering. Justice Kennedy is the swing vote. The conservative bloc of justices, including Justices Roberts, Gorsuch, Alito, and Thomas hold that the courts do not have the justiciability to rule on matters of redistricting while the liberal bloc, Justices Breyer, Ginsburg, Kagan, and Sotomayor believe that the courts do have the right to rule on gerrymandering and that the practice is in violation of the Equal Protection Clause of the 14th Amendment.[20] Kennedy has left the door open for the justiciability of gerrymandering. The efficiency gap standard that is being argued right now in Gill v. Whitford, if accepted, could change numerous maps of state and national districts. If the efficiency gap standard is not accepted by Justice Kennedy as an effective measure of gerrymandering, this decision could effectively end all future gerrymandering appeal cases, which as Justice Kennedy mentioned before, will create a breeding ground for undemocratic political gains for America.[21]

[1] Gerrymander. (2017). Cornell Legal Information Institute.

[2] “Voting Rights Act of 1965” (PL 89-110, 6 August 1965), 79 United States Statutes at Large, pp. 437-446.

[3] Beckett, Lois. “Is Partisan Gerrymandering Unconstitutional?” ProPublica, 7 Nov. 2011.

[4] Hill, Steven. “How the Voting Rights Act Hurts Democrats and Minorities.” The Atlantic, 13 June 2017.

[5] Davis v. Bandemer, 478 U.S. 109. Supreme Court of the United States. (1986)

[6]  Beckett, Lois. “Is Partisan Gerrymandering Unconstitutional?” ProPublica, 7 Nov. 2011.

[7] Bishop, Bill, and Robert G. Cushing. The Big Sort: Why the Clustering of like-Minded America Is Tearing Us Apart. Mariner Books, 2009.

[8] U.S. Constitution, Art I, Sec. 2

[9]Vieth v. Jubelirer, 541 US 267. Supreme Court of the United States. (2004) (Kennedy, concurring)

[10] Gelman, Andrew, and Gary King. “Unified Method of Evaluating Electoral Systems and Redistricting Plans: United States House of Representatives and Ohio State Legislature.” American Journal of Political Science, vol. 38, no. 2, May 1994, pp. 514–54. JSTOR

[11] Latner, Michael, et al. “How the Supreme Court Justices Enabled the Gerrymandering of Voting District Boundaries.” Newsweek, 25 Oct. 2017.

[12] Hill, Steven. “How the Voting Rights Act Hurts Democrats and Minorities.” The Atlantic, 13 June 2017.

[13] Gill v. Whitford, No. 15-cv-421. U.S. 7th District Court of Appeals (2016)

[14] Nicholas Stephanopoulos & Eric McGhee, “Partisan Gerrymandering and the Efficiency Gap,” Public Law and Legal Theory Working Paper, No. 493 (2014).

[15] Stephanopoulos and McGhee

[16] Liptak, Adam. “Justices to Hear Major Challenge to Partisan Gerrymandering.” The New York Times, 19 June 2017.

[17] Gill v. Whitford, No. 15-cv-421. U.S. 7th District Court of Appeals (2016)

[18] Pierce, Olga, et al. “Redistricting, a Devil’s Dictionary.” ProPublica, 2 Nov. 2011.

[19] Cooper v. Harris, 581 U.S. ____. Supreme Court of the United States. (2017)

[20] Kwong, Jessica. “Justice Anthony Kennedy Holds the Key to Ending Partisan Gerrymandering Forever.” Newsweek, 5 Oct. 2017.

[21] Newkirk, Vann. “The Supreme Court Takes On Partisan Gerrymandering.” The Atlantic, 19 June 2017.

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