Gerrymandering has become the buzzword du Jour in national politics – as well as a long smoldering policy issue about to convulse the Supreme Court in a possible constitutional crisis. Yet, few realize the ancient and arcane origins of the term – nor how we have gotten to this point.
The dubious distinction of producing the first gerrymander goes to an 18th century Massachusetts legislature which created several grotesquely contorted “salamander-shaped” voting districts that protected the ruling Federalist Party. The term gerrymander is derived from Elbridge Gerry, Governor at the time and a founding father, early patriot, and general mover and shaker in the early United States republic.
Consequently, the eponymous gerrymander has been around about as long as the country has – and until recently has been considered a fact of political life, not amenable to court challenge or other easy fix.
That may be about to change!
Prior to the mid-20th century (1962) the U.S. Supreme Court had never even ruled on whether gerrymandering was legal. In fact before 1962 the court had maintained that legislative “malapportionment” (gerrymandering) was not a judicial question at all. It was a “political question,” hence not “justiciable” before the courts. Basically the Supreme Court had maintained that the constitutionally required decennial “reapportionment” was a function reserved to the legislatures.
The now famous 1962 Baker v. Carr case ended the court’s reluctance to entertain “political questions.” Previously the court had not allowed cases to come before it under the 14th amendment’s equal protection clause that challenged the validity of legislative reapportionment. But in the Baker v. Carr decision the court reversed itself and redistricting became justiciable.
This was followed in 1964 in Reynolds v. Sims when the court went even further – ruling that legislative districts had to be drawn as equal in population as possible, while allowing legislatures to keep districts “compact” and “contiguous.”
So, if gerrymandering is “justiciable,” why have federal courts for the past half-century shied away from confronting the several examples of “extreme gerrymandering” that have petitioned to be heard or actually came before it?
In essence the Supreme Court’s legal paralysis has been caused because no standard existed to identity extreme gerrymandering. Since at least 1984 that search for a viable standard has prevented the courts from decisively dealing with a gerrymandering problem that both Republicans and Democrats have turned into a festering crisis of electoral integrity.
In 2004 in a Pennsylvania case, Vieth v. Jubelirer, the U.S. Supreme Court walked away from deciding a gerrymandering case for lack of a workable standard, even as Justice Kennedy noted that a standard may someday be articulated – and indeed might already exist.
Now in 2018 “someday” may be here – because by the end of June the Supreme Court is likely to rule on two gerrymandering cases, one challenging the Wisconsin Republican controlled legislature, arguing it unconstitutionally gerrymandered its state legislative map, and the other challenging that Maryland Democrats gerrymandered a congressional district.
But unlike earlier cases going back some 50 years, there is now a standard to measure and remedy extreme gerrymandering – a standard enjoying increasing consensus by scholars, jurists and even politicians.
Known widely as the “efficiency gap” it calculates the impact of the two mechanisms that create gerrymandering. The first of these is “packing,” which means one side’s votes have been over concentrated so they win by huge margins in a small number of districts (creating a surplus of votes). The second is called “cracking,” which means distributing one side’s votes over many districts, so they lose each district by a relatively narrow margin (creating lost votes).
Both packing and cracking create a situation such as occurred in Pennsylvania’s congressional delegation where a state with roughly 800,000 more Democratic voters produced a congressional delegation in which the minority (Republican) party controlled 72% of the seats.
The Wisconsin and Maryland cases provide blatant examples of extreme gerrymandering, one Republican inspired, the other engineered by Democrats. Both are wrong and ultimately toxic to the democratic process.
Unlike earlier cases, however, the Supreme Court now has both the opportunity to act as well as the tools to accomplish it. This is not one the court should duck or equivocate upon. The court’s failure to end gerrymandering will only enflame the growing controversy about rigged election districts and disenfranchised voters.
Already the Pennsylvania Supreme Court has acted in that state, ruling earlier this year that the existing congressional redistricting map violated the state constitutional requirement that elections be “free and equal.”
If the U.S. Supreme Court does not act, other state courts will follow Pennsylvania’s example, producing what may be a crazy quilt of decisions that only brings more chaos to redistricting – and more confusion to voters.
The U.S. Supreme Court has a rare opportunity to fix a problem that left unresolved threatens the core of our democracy.