Mythbusters: Partisan Gerrymandering Edition

Noah B. Lindell & J. Gerald Hebert
Mar 3, 2017
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Fact Checks on the Top False Claims about Partisan Gerrymandering

CLC’s case, Whitford v. Gill, is on the way to the U.S. Supreme Court, and we hope that we can once and for all curb the practice of partisan gerrymandering. Before then, we’d like to debunk a number of myths about partisan gerrymandering with a dose of reality.

1.Myth: Excessive partisanship is an inevitable part of drawing districts. It’s hopeless to try to stop it.

Reality: Extreme partisanship is only inevitable in redistricting if we allow it to be. Certainly, as long as the courts refuse to rein in political gerrymandering by state legislators, those legislators will continue to draw districts to maximize partisan advantage. But it does not have to be this way.

Many states have chosen to create independent redistricting commissions, and courts have drawn districts for other states after successful legal challenges. Studies have found that both independent commissions and courts draw districts that are more compact and more competitive than those drawn by legislatures. Nonpartisan redistricting commissions may do the most to eliminate partisan bias. However, proper protections against partisan gerrymandering can sharply reduce the excessive use of politics in redistricting, even when legislators draw the districts. Florida, for instance, passed a Fair Districts amendment to its state constitution in 2010, which forbade map-drawing to favor one political party over another. Despite the Florida Legislature’s efforts to wiggle out of the requirements, the Fair Districts amendment has had great success in limiting partisan redistricting thanks to court intervention. It is impossible to completely eliminate the partisan effects of redistricting; line-drawing will always affect the parties, no matter how it is done. But the manageable standard the Whitford court approved would help stop legislators from drawing districts in order to achieve systematic advantage over their political opponents.

2.Myth: The Supreme Court has said that partisan gerrymandering is okay.

Reality: The court has actually said the exact opposite. In the court’s last reevaluation of partisan gerrymandering, Vieth v. Jubelirer, all nine Justices agreed that extreme partisan gerrymandering is inconsistent with democratic principles and violates the Constitution.[1] The only questions have been (1) whether courts have manageable standards to differentiate between acceptable and unacceptable political gerrymanders, and (2) what those standards should be. The case Davis v. Bandemer answered the first question “yes,”[2] but a Supreme Court majority has never agreed on a single standard to separate constitutional gerrymanders from unconstitutional ones. The three-part standard enunciated by the three-judge court in Whitford, using the efficiency gap, finally provides a workable, easily administrable standard.

3.Myth: The standards for gerrymandering claims are unworkable, so courts should just get out of the business entirely and leave it to the legislatures.

Reality: This unfortunate myth got some traction in December, after media reports noted that Supreme Court Justices had become frustrated with seeing racial gerrymandering cases continue to reach the court. But gerrymandering is no more difficult to handle than any other complex legal issue. It only appears to be, because gerrymandering cases reach the Supreme Court so often. They only do so, however, because of the unusual procedural way in which courts have to review gerrymandering cases—not because courts are ill-equipped to address them.

Most federal cases start at the district court, and are then appealed to panels in the federal appellate courts. If appealed again, the Supreme Court can then decide whether or not to grant certiorari and hear the case. Challenges to any statewide district map, however, must be heard by a special three-judge federal court, made up of a mix of district and circuit court judges. By statute, these cases then go directly to the Supreme Court, which must issue a ruling of some kind. The court has only three choices: (1) summarily affirm or reverse the case (agreeing or disagreeing with the three-judge court’s judgment, but not necessarily based on that court’s reasoning); (2) dismiss the case for lack of jurisdiction; or (3) note probable jurisdiction, order full briefing, hear oral arguments on the merits, and issue an opinion. This means that gerrymandering cases only get two levels of review—the three-judge court and the Supreme Court—while other cases get three. It also means that the court cannot simply choose not to hear a gerrymandering case, as it does for 99% of the cases that come from the appellate courts. The problems the court has to grapple with in gerrymandering cases are the sorts of technical disputes that would normally be resolved by the intermediate appellate courts—except that there are no intermediate appellate courts to do the job! The standards are no less workable than are the standards for any number of other types of cases; they just appear worse because the Supreme Court is doing the sort of error correction it normally avoids, or which intermediate appellate courts have already addressed.

Even if the racial gerrymandering standards were really as difficult to deal with as they appeared, this would be no reason to give partisan gerrymandering a free pass. The standard that the Whitford court set for proving partisan gerrymandering—invidious partisan intent, extreme partisan effect, and no legitimate justification—is quite simple and is similar to the standards used in many other types of civil rights cases. The Whitford court’s three steps, and the efficiency gap measure, are all straightforward and easy for courts to administer.

By allowing partisan gerrymandering claims to go forward, the courts would also alleviate the biggest doctrinal problem that they have to grapple with in racial gerrymandering cases: the question of whether a gerrymander is based on race or partisanship. Currently, racial gerrymandering claims can only succeed if race was the “predominant” factor in drawing maps.[3] But because the Supreme Court has never set a standard for determining when partisan gerrymandering is unconstitutional, states typically defend against racial gerrymandering claims by arguing that they actually redistricted for the purpose of disadvantaging the minority party. Since race and party are correlated, it can be difficult to tell which motive—race or partisanship—actually drove the map-drawing.[4] If the Supreme Court recognizes partisan gerrymandering claims, however, the partisanship excuse would disappear, eliminating the most confusing aspect of today’s racial gerrymandering cases. States would not be able to make too much use of either race or politics when drawing districts.

4.Myth: Because people “sort” themselves into communities with people of similar political beliefs, redistricting is always going to separate people into partisan, non-competitive districts.

Reality: Self-sorting does have some effect on the districts that states can draw. However, it cannot explain the extreme partisan lean of many states’ district maps. To use just one example, Pennsylvania voted for Barack Obama by ten points in 2008 and by over five points in 2012. Democrats won 12 of the state’s 19 congressional districts in 2008 (63%), which is to be expected in a state that voted Democratic on the presidential level. But in 2012, Democrats won only five of 18 districts (28%).[5] Such a large shift in such a short amount of time could not have resulted from self-sorting – and it didn’t. Instead, it was the result of one of the worst partisan gerrymanders of the 2010 redistricting cycle. Many other states—North Carolina, Maryland, and Massachusetts, for instance—drew districts that gave the party in power far more legislative clout than its percentage of the population would suggest, even taking sorting into account. In fact, one analysis found that Republicans won 18 more seats in the U.S. House of Representatives in 2012 than they would have without partisan gerrymandering. Of course, that is a net gain; Democrats conduct their own partisan gerrymanders in states that they control.

5.Myth: The “one-person, one-vote” rule limits partisan gerrymandering.

Reality: Not so much. It is true that, prior to the Supreme Court’s decisions imposing the one-person, one-vote rule, districts were often drawn to benefit rural areas at the expense of urban areas. This did have a partisan effect, and one-person, one-vote prevented the practice to some degree. But, as some Justices have recognized, “[c]reating unequally populous districts is not . . . the only way to skew political results by setting district lines. . . . However equal districts may be in population as a formal matter, the consequence of a vote cast can be minimized or maximized . . . .”[6] This is particularly true with modern technology. Computers allow map-drawers to create districts with pinpoint precision so as to benefit one party, all while maintaining population equality. One-person, one-vote has been the law of the land for half a century, and partisan gerrymandering is as virulent as ever.

6.Myth: The Supreme Court requires states to “pack” minority voters into districts to comply with the Voting Rights Act, and since minority groups overwhelmingly vote for Democrats, this requirement causes the partisan gerrymandering problem.

Reality: Neither the Voting Rights Act (VRA) nor the Supreme Court requires “packing” of minority voters. The VRA requires only that minority voters have an equal opportunity “to participate in the political process and to elect representatives of their choice.”[7] As the Supreme Court has interpreted this standard, states do not need to keep minority populations together if they would only have the power to influence or form coalitions with the majority.[8] Instead, states need only create districts in areas in which “a minority group” already “composes a numerical, working majority of the voting-age population.”[9] Moreover, the VRA prohibits states from amassing too many minority voters into a single district, because doing so prevents them from having the ability to elect a preferred candidate elsewhere.[10] In other words, the VRA itself makes packing illegal.

To the extent that the VRA does require majority-minority districts, this is not anywhere near a full explanation for the partisan gerrymandering problem. Many states with relatively small minority populations, such as West Virginia, Wisconsin, and Pennsylvania, saw egregious partisan gerrymanders in the 2010 redistricting cycle. Some states have also used outlandish interpretations of the VRA to pack far more minority voters into districts than necessary, in order to achieve partisan goals. The Supreme Court has made clear that these efforts are unconstitutional racial gerrymanders, because states are using race as a proxy to achieve their political goals.[11] Other states have attempted to excuse the use of racial quotas or the packing of African-American voters by claiming they were actually engaging in partisan gerrymandering.[12] The VRA imposes some limitations on map drawers, but not enough to either create or prevent partisan gerrymandering.

7.Myth: We can set up computers to draw compact districts and avoid all of the problems with gerrymandering.

Reality: If only it were that simple. Computer algorithms that draw districts based solely on compactness, contiguity, and equal population come up with thousands of potential maps. There is no way for a computer, on its own, to choose between those plans; humans need to provide a set of values or principles that will help the computer choose one over another. Moreover, telling computers to consider only those measures could end up causing significant partisan effects, depending on how voters are geographically distributed. In addition, without considering race as a factor, computer-generated plans could violate the VRA. Computers are valuable tools for map-drawers—they can even help assess whether plans are likely partisan gerrymanders. But the human element will always play a significant role in redistricting.

8.Myth: Allowing partisan gerrymandering claims would fill the courts with a wave of never-ending, partisan lawsuits.

Reality: Providing clear standards for partisan gerrymandering suits is unlikely to add much to the current level of gerrymandering litigation, and may even reduce litigation over the long term. Over time, judicially manageable standards emerged in the one-person, one-vote context: an “as nearly as practicable [to equality]” standard for congressional districts, and the so-called “ten percent rule” for state legislative districts. Today such cases are rare at the Supreme Court level. Moreover, as Prof. Nick Stephanopoulos has pointed out, “redistricting litigation is already very common.” Since the last redistricting took place in 2011, some 224 lawsuits have been filed challenging congressional or state legislative maps in 42 states. Some of these are true racial gerrymandering cases, but others are really partisan gerrymandering cases that have been shoehorned into the racial gerrymandering framework. This causes legal problems for racial gerrymandering plaintiffs, since they must prove that race rather than party was the main reason the districts were drawn a particular way. Allowing partisan gerrymandering claims would clear up much of the confusion that has infected racial gerrymandering jurisprudence, and many of the new partisan gerrymandering cases that might crop up would be pulled from the existing pipeline of racial gerrymandering cases. Moreover, by setting clear standards for how much partisanship is too much, the Whitford case gives legislatures an equally clear path to follow if they wish to prevent gerrymandering lawsuits. This could end up decreasing the amount of redistricting litigation down the line, and would make it easier for lower courts to resolve cases efficiently.

 

[1] 541 U.S. 267, 292 (2004) (plurality opinion); id. at 311-12 (Kennedy, J., concurring in the judgment); id. at 317-18 (Stevens, J., dissenting); id. at 343 (Souter, J., joined by Ginsburg, J., dissenting); id. at 355 (Breyer, J., dissenting).

[2] 478 U.S. 109 (1986).

[3] Miller v. Johnson, 515 U.S. 900, 916 (1995).

[4] For more on this “race or party” issue, see Richard L. Hasen, Essay, Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases (forthcoming, Wm. & Mary L. Rev.), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403. Professor Hasen touts Whitford as the “[m]ost notable” of the partisan gerrymandering cases working their way up to the Supreme Court. Id. at 36.

[5] Population shifts caused Pennsylvania to lose a congressional seat in the 2010 redistricting cycle.

[6] Vieth, 541 U.S. at 343 (2004) (Souter, J., dissenting).

[7] 52 U.S.C. § 10301(b).

[8] Bartlett v. Strickland, 556 U.S. 1, 13-14 (2009).

[9] Id. at 13.

[10] Voinovich v. Quilter, 507 U.S. 146, 154 (1993).

[11] See Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257, 1272-74 (2015).

[12] See, e.g., Bethune-Hill v. Virginia St. Bd. of Elections, 141 F. Supp. 3d 505 (E.D.V.A. 2015) (three-judge court), prob. juris. noted, argued, No. 15-680 (U.S. 2016); Harris v. McCrory, 159 F. Supp. 3d 600 (M.D.N.C.) (three-judge court), prob. juris. noted, argued, No. 15-1262 (U.S. 2016).

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