The Supreme Court sidestepped the North Carolina gerrymandering case and the 2018 congressional election will be biased there and in several other states. What is Judge Kavanaugh's position on the constitutionality of gerrymandering?
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| Charles and David Koch |
Partisan gerrymandering is drawing district boundaries so as to give the controlling party in a state an unfair advantage. A gerrymandered map packs opposition party voters into one or a few districts so the controlling party has a small but safe advantage in the remaining districts. Gerrymandering is nearly as old as our country, but it was imprecise and difficult to do before the rise of the Internet. By 2010, the Democrat and Republican parties had compiled extensive voter databases, which mapping software could use to generate district maps favoring their party.
After the 2010 census, the Koch brothers and other wealthy Republican donors realized that if they controlled state governments, they could control redistricting and therefore the US House of Representatives so they increased their support of state elections and at the same time, the Democratic National Committee moved in the opposite direction -- focusing on the national election.
The Republican strategy worked. In the 2010 election cycle Democrats took five governorships from the Republicans while Republicans took 11 governorships from the Democrats and Republicans netted 721 state legislature seats, giving them control of both houses in 25 states -- up from 14 before the election.
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| Before and after 2010 gerrymandering (red=Republican control of both houses, blue=Democrat, yellow=split). Nebraska is non-partisan. (Source) |
The Republicans drew gerrymandered maps in key states and it paid off. In the 2012 election, 1.4 million more Americans voted for Democrats than Republicans for Congress, but Republicans won a 33-seat majority in Congress. A 2017 Brennan Center for Justice study concluded that "Republicans derive a net benefit of at least 16-17 congressional seats in the current Congress from partisan bias."
The Brennan Center uses three different tests for significant partisan bias in a state and they found consistent high bias in 8 states, four of which were found to be biased using all three of their measures.
There have been a number of court challenges in these states, most recently in North Carolina where a panel of three federal judges ruled last month that the state's congressional map is an unconstitutional partisan gerrymander that favors Republicans. It is easy to see how they reached that conclusion.
North Carolina voter registration numbers from 2010, before gerrymandering, to 2018 are shown below.
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| North Carolina voter registration (source) |
Democrats outnumber Republicans in each year, but what about Libertarians and unaffiliated voters? If we adjust, by assuming that all of the Libertarian and half of the unaffiliated voters favor Republicans over Democrats, we get the following breakdown:
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| Adjusted registration percents |
Before gerrymandering, there were seven North Carolina Democrats in the 111th Congress and six Republicans. That dropped to four Democrats after gerrymandering and then to three.
Note further that the Republicans have not tried to hide their bias. David Lewis, senior chair of the North Carolina House Redistricting Committee, and Robert Rucho, senior chair of the Senate Redistricting Committee, who were responsible for developing the redistricting plan, engaged a well-known Republican redistricting consultant Thomas Hofeller to draw the map.
Dr. Hofeller testified that Lewis and Rucho instructed him “to create as many districts as possible in which GOP candidates would be able to successfully compete for office” and he complied, seeking “to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.” Lewis also confirmed their intent in the following television interview:
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| Clip1 Clip2 Representative David Lewis |
Using common sense and tests like those employed by the Brennan Center, it is easy to identify gerrymandering after the fact, but harder to generate agreed-upon impartial districts when new census data is gathered. There are guidelines like having about the same number of people in each district, making districts contiguous and compact and recognizing political subdivisions like city and county boundaries, but these are not hard and fast criteria. There is also an inherent tension between the desire to avoid gerrymandering and compliance with the Voting Rights Act that prohibits racial discrimination in voting -- districts must be drawn so as to give representation to minorities.
People move around, so it is reasonable to redistrict every ten years and there is no way to get consensus on a redistricting algorithm, but it is clear that partisan politicians should not have redistricting authority. The Brennan Center study found one political party had sole control (legislature and governor) in each of the seven states with high levels of partisan bias while maps drawn by commissions, courts, and split-control state governments exhibited much lower levels of bias, and none had high levels of bias persisting across all three of the elections since 2010. You can read their recommendations here.
The North Carolina gerrymander was struck down by a Federal Court, but that was appealed to the Supreme Court. The lack of precise gerrymandering criteria led the Supreme Court to sidestep the case and send it back to North Carolina, where it was again found unfair, but there was not enough time to redraw the map before the election. The gerrymandered map will be used in the 2018 election. (The Pennsylvania State Supreme Court redrew a gerrymandered map this year).
If partisan gerrymandering persists, cases like that of North Carolina will continue to be appealed to the Supreme Court and they will eventually make a precedent-setting ruling. Today's Supreme Court is clearly politicized and a decision on gerrymandering would be more central to our democracy than rulings on important issues like DACA or abortion. What is Judge Kavanaugh's position on the constitutionality of gerrymandering?
For more on Internet-enabled gerrymandering see these posts and visit The Gerrymandering Project.
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, saying it was an unconstitutional partisan gerrymander favoring Republicans “beyond a reasonable doubt.” 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 in the next Congress.
