The End of Gerrymandering?

Tony Kappen - 1B ECE
Posted on: January 29, 2018

The United States Supreme Court is poised to end partisan gerrymandering in all fifty states, in what could be one of the most significant court case in decades. If it decides to end this practice, this is something we should all celebrate.

To know why, let’s first look at a little bit of history. In 1812, Massachusetts governor Elbridge Gerry was not in the mood to lose any elections, and so signed into law a map designed to give his party an advantage in the upcoming elections. The map involved such hideous maneuvering to draw districts that disenfranchised his opponents that one particular district came to resemble a salamander. Hence, the term gerrymandering was born. Gerrymandering is essentially the practice of drawing the boundaries of electoral districts in such a way as to benefit your own party. This is done mainly by stacking the voters of the opposing party into as few districts as possible and cracking or splitting the remaining voters into districts where they are the minority. So long as the relative population of the districts are roughly equal, and the districts are reasonably contiguous and compact, this is completely legal. The result? A landslide for your side and any requirement to actually win a majority of the votes being completely optional.

This technique can be employed with deadly efficiency and present massively skewed outcomes. A recent example can be found in Wisconsin, where the legislative map that passed into law in 2011 earned Republican lawmakers 60% of the seats in the state assembly, even though they only got 48.6% of the votes.

If at this point you are wondering about the state of would-be gerrymanders in Canada, never fear. Gerrymandering used to be a massive problem in Canada, with partisan parliamentary committees creating electoral maps that overwhelmingly favoured their own parties. This practice was put to a stop when parliament passed the Electoral Boundaries Readjustment Act, passing the responsibility of drawing maps to Elections Canada, free from partisan influence. Provincial governments soon followed the federal example and passed similar legislation themselves.

Returning back to our neighbours to the south, after learning about the grotesquely unfair map passed by the Republican government in Wisconsin, twelve registered democrats sued their state government. Their case, titled Gill v. Whitford, could end gerrymandering in the US, impacting how voters choose their representatives in the state assemblies of all 50 states and in the United States House of Representatives.

There have been many cases before the Supreme Court challenging the constitutionality of gerrymandering, yet this time around presents some key differences and signs to be optimistic for a possible ruling ending it or at least stopping its growth. There are two main reasons.

The first centres on the work of Professor Nicholas Stephanopoulos from the University of Michigan. In 2004, a similar court case came before the Supreme Court with the potential to rule gerrymandering illegal on constitutional grounds. The court ruled 5-4 against with the deciding vote cast by Justice Anthony Kennedy. Kennedy provided an opening by which he could support any future arguments against gerrymandering on constitutional grounds. He said he could see ruling against gerrymandering if any future plaintiff is able to provide proof that a particular map displays extreme partisanship.

The problem presented by Kennedy, who still sits on the court, therefore relies on providing a definition of what extreme partisanship in a map would like.

A possible solution to that problem is what Stephanopoulos believes he has achieved through his concept of the efficiency gap. The efficiency gap refers to the efficiency in translating the votes for a party into seats. The larger the difference in efficiency between the parties, the more likely partisan motivations were at play in the creation of a particular electoral map. This provides the argument against gerrymandering the opportunity to present a way to define what an extremely partisan map would look like, satisfying Kennedy’s condition.

The second reason for optimism this time revolves around a similar case arising from Maryland being accepted for a hearing before the court. In the Maryland case, Republican voters argue that their rights have been infringed by a Democratic state government that gerrymandered the state’s electoral districts.

The court normally does not take on two cases that are so similar to each other, but in this case it might present a particular motive. The Supreme Court, in its role as the neutral interpreter of American law, attempts to protect its reputation for neutrality wherever it can. In a case like this, where there are very clear political winners and losers, the court is likely to seek to avoid any accusations of partisanship. It therefore presents particular advantages if it is able to rule against the gerrymandered maps of both parties and hence avoid any accusations of partisanship within the court.

If the court rules that partisan gerrymandering is an unconstitutional activity that can be rationally identified and stopped, the impact on American democracy and the general structures by which Americans govern themselves will be huge. It will become much harder for elected representatives to completely ignore the people they represent and just trust in a skewed map to consistently return them to office. In a way, solving the problem of gerrymandering would be just another way of perfecting the American union. It’s about damn time.