Courts can combat gerrymandering with gerrymandering tools

Gerrymandering -- defining voting districts to favor one party or candidate -- has been with us for years, but it was difficult to do and imprecise. Mapping software using Internet voter data have made it precise and easy.

Gerrymandering is in the news because a panel of federal judges ordered North Carolina to redraw its gerrymandered congressional map.

The panel struck down North Carolina’s congressional map, saying it was unconstitutional because it violates the 14th Amendment guarantee of equal protection. Judge James A. Wynn Jr., in a biting 191-page opinion, said that Republicans in the North Carolina legislature had been “motivated by invidious partisan intent” as they carried out their obligation in 2016 to divide the state into 13 congressional districts, 10 of which are held by Republicans.

The ruling will be appealed directly to the Supreme Court, which is also hearing Wisconsin and Maryland gerrymandering cases. The Wisconsin and South Carolina cases are both based on the 14th amendment and are pro-Democratic while the Maryland case challenges the redrawing of a single district, is based on the 1st Amendment and is pro-Republican.

Gerrymandering is not new -- Patrick Henry tried to defeat James Madison in 1788 by drawing an anti-federalist district. He failed because he did not have good data and computers, but today's politicians have geographic information system software and the data they need to automate efficient, precise gerrymandering. (The term "gerrymandering" was coined in 1812 when Massachusetts governor Elbridge Gerry reluctantly approved a map in which one district resembled a salamander).

The Republican party has used Internet-enabled gerrymandering to gain a congressional advantage. The Democratic party might be tempted to fight fire with fire, but that would be slow and undemocratic.

The North Carolina judicial panel has a better solution. They gave the legislature until January 24 to present a “remedial plan” and the court will institute its own map if it finds the new district lines unsatisfactory. If that happens, the court can use use the same sorts of tools and data that have been used to produce gerrymandered districts. Instead of using the technology to optimize in favor of either party, they will seek maps that equalize district populations, minimize geographic perimeters, respect natural boundaries like rivers, maximize racial diversity, etc. In general, courts are more likely to be non-partisan than legislatures.

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Update 1/19/2018

Pennsylvania county results, 2016

The U. S. Supreme Court granted a stay in the court order requiring North Carolina lawmakers to produce a revised congressional voting map within two weeks. This temporary delay probably means the current map will be used in the 2018 election.

In a related case, the Pennsylvania state supreme court is currently hearing a gerrymandering case which could result in the redrawing of their district map in time for the 2018 election.

Republicans won 13 of Pennsylvania's 18 seats in the U.S. House of Representatives in 2016 in spite of the fact that Donald Trump defeated Hillary Clinton by only 44,292 (.75%) votes.


Update 1/30/2018

The Pennsylvania Supreme Court has decided that the Republican-drawn district map violates the State Constitution and ordered that it be redrawn by February 9th.

Republicans hold 72% of Pennsylvania's 18 seats in Congress and only carried the state by .75% in the last election. That imbalance raised a red flag, but there are no hard and fast rules for determining whether oddly-shaped districts or disproportional representation are due to intentional gerrymandering or other factors like compliance with the 1965 Voting Rights Act, which prohibits racial discrimination, or people choosing to live in homogeneous neighborhoods.

A "legitimate" district

In a sense, the judges had to decide the intent of the Republicans in drawing their district map and the following exchange during the hearing may have led them to rule that the intent was to gerrymander:

Justice Max Baer: “if you took the Democratic areas of Pittsburgh and Philadelphia and connected them via the Pennsylvania Turnpike, that’s okay?”

Jason Torchinsky, a lawyer representing the Pennsylvania Republican party: "yes.“

That would be an extreme example of "packing" -- putting all of Pennsylvania's urban Democrats into a single, overwhelmingly Democratic district. A Democrat would win the packed district in a landslide, thereby "wasting" many Democratic votes. Our Electoral College voting system also disenfranchises voters in predominantly Republican or Democratic states, thus giving inordinate power to a handful of competitive "swing" states in national elections.

Illinois District four

While the hypothetical Pennsylvania example is blatant, an unusually shaped district could also be the result of compliance with the Voting Rights Act. For example, Illinois District four has two areas connected by an uninhabited stretch of land along Interstate 294, creating a Hispanic-majority district.

For a funny and informative discussion of the difficulty of drawing fair district maps and another blatant example of partisan bias, watch the following video, but be forewarned that it includes some adult content.

Update 2/12/2018

Last Friday, Pennsylvania Republicans submitted their proposed district map to the Pennsylvania Supreme Court. The governor says he will review the map and decide whether or not to recommend that the Court accept it by February 15th. If he rejects the map, the Court will impose its own map on February 19, in time for primary elections.

In rejecting the current map, the Court noted that in the three elections held after the last redistricting, Democrats won the same five seats and Republicans won the remaining 13 seats every year, in spite of the fact that the Democrats won between 46 and 51 percent of the statewide popular vote in each election. Furthermore, in 2016, Democrats won their House seats with an average of 75 percent of the vote, while the Republicans' victory margin averaged only 62 percent. The Court concluded that the Democrats had been packed into five districts, "wasting 25 percent of their votes," and the Republicans were spread out among the remaining 13 districts.

This map shows the packing of the seventh district:

Source

The Court found that the evolution of the district from a compact, contiguous region at the time of the 83rd Congress (1953-5) to today's map indicated illegal gerrymandering:

Source

The stakes are high. If redistricted, Pennsylvania might end up with nine Republican and nine Democratic representatives and that could make the difference between Democratic or Republican control of the US House of Representatives.

Update 3/24/2018

Map redrawn by the Supreme Court

The Pennsylvania Supreme Court rejected the redrawn map submitted by the Legislature, substituting the map shown here which has:

• 10 Trump 2016 districts
• 8 Clinton 2016 districts
• 1908 district border miles
• 13 county splits

As compared to the old map which had:

• 12 Trump 2016 districts
• 6 Clinton 2016 districts
• 3047 district border miles
• 28 county splits

A dozen Republican members of the Pennsylvania House of Representatives have filed impeachment resolutions against the five Supreme Court judges who are Democrats, arguing that they had violated the State Constitution.

The Chief Justice of the Supreme Court, a Republican, released a statement calling the impeachment resolution "an attack upon an independent judiciary."

Two New York Times staff members drew the following map to demonstrate the ease with which partisan redistricting is achieved using mapping software with data available on the Internet. They did it using Dave's Redistricting Service -- you can try it for yourself.

A blatantly partisan, hypothetical district map drawn using an Internet service

It is easier to spot gerrymandering and state the problem than it is to come up with an equitable, constitutional solution, but we should do our best to keep partisan politics out of the process and legislators are nearly all members of a party. Having courts draw up maps, as was done in Pennsylvania, or allowing states to establish independent redistricting commissions like the one in California seem like imperfect steps in the right direction.

Update 9/3/2018

In June, the Supreme Court sidestepped the question of when extreme partisan gerrymandering is unconstitutional on technical grounds. They acknowledge that gerrymandering is a threat to democracy, but seem uncertain on technical issues like the lack of an operational definition of gerrymandering, deciding whether a political party or a voter is harmed by gerrymandering, whether challenges have to be to a specific district map rather than an entire state, etc. They have left the door open for future action.

Last month, a Federal Court found that North Carolina’s congressional districts were unconstitutionally gerrymandered to favor Republicans over Democrats and said it may require new districts before the November elections; however, it now appears there will not be time to redistrict the state. This will taint the outcome of the election and could conceivably determine the Congressional majority.

This article presents analysis showing that the current districts are stacked in favor of Republicans and, lest one conclude that this was a fluke, quotes State Representative David Lewis as saying: "I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

In the Federal Court ruling, we read that when Dr. Thomas Hofeller was engaged to draw new districts Mr. Lewis and State Senator Robert Rucho instructed him to “to create as many districts as possible in which GOP candidates would be able to successfully compete for office.” Dr. Hofeller testified that he complied, seeking “to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.”

How do these people sleep at night?

Update 9/6 2018

The same panel of judges that opened the possibility of redistricting before the November election has concluded that the current, radically gerrymandered map must be used this year because there is not enough time to revise it before the election. The citizens of North Carolina have been denied democracy for the last three elections. Let's hope that the fourth time will be the last.

The effect of gerrymandering in North Carolina (source)

Update 10/10/2019

Last June, the US Supreme Court decided that states, not the federal government, were responsible for legislative maps. This week a North Carolina state court effectively threw out the state’s map of congressional districts on Monday, saying critics were poised to show “beyond a reasonable doubt” that it was an unconstitutional partisan gerrymander favoring Republicans. Furthermore, the judges said they were prepared to postpone primary elections should that prove necessary to further litigate the case or draw new House districts, so we can almost certainly anticipate that there will be more than three Democratic representatives from North Carolina next year.

For more on North Carolina gerrymandering see this post.