15 Ending the Partisan Gerrymandering Process: A Review of the Literature – Gracie Brose

Ending the Partisan Gerrymandering Process: A Review of the Literature 

Every ten years the United States conducts a census of the population. Following this, congressional and state legislative seats are reapportioned amongst the states. Those whose population has grown gain seats, whilst those whose population has dwindled lose seats. State legislators are then left the responsibility of generating new district maps to reflect the state populace changes. During the sixties, the Supreme Court ruled on numerous decisions that became known as the “Reapportionment Revolution.” Previously, politicians refused to redistrict as a way to ensure their party’s incumbency. These cases established equal representation through the “one-man, one-vote” principle, ensuring population equality aligned with votes. However, as currently configured, state legislators oversee the redistricting process. These legislators have the ability to draw new district maps in whatever way they see fit. Politicians are free to orchestrate partisan advantage through gerrymandering by manipulating district lines and creating a cycle of maintained power. Lawmakers and politicians alike argue over what has been done and what more needs to be done to break the pattern of gerrymandering. Scholars have debated the best possible solution since the seventies, looking to previous failures and successes that states have implemented.

 The following articles that this review will discuss are united in their explanation of the issue at hand. This central similarity regarding the problem’s severity, as well as the realized need for a solution, amalgamate the five sources examined in this paper’s focus on the issue of gerrymandering in the United States. The following investigation will deduce points of contention and consensus in current research on the issue, the causations, resulting consequences of inaction, and suggested solutions of gerrymandering. All in all, the intent of this review is to illuminate the fact that despite divergence in methods of solution, the objective that links these five articles together is a push toward redistricting reform.

Issues

J. Gerald Herbert and Marina K Jenkins (2011), both lawyers with a focus in elections and redistricting, displayed the issue in their article, “The Need for State Redistricting Reform To Rein in Partisan Gerrymandering.” They represented the matter of partisan gerrymandering as a battle in the state legislature during the redistricting process. The political party in control of the state legislature redraws electoral districts to sustain the election of their own party. Further, the authors argued the gerrymandered redistricting process guarantees incumbency of the party in power and eliminates the political potential of the opposing party. However, Herbert and Jenkins (2011) presented the greater issue of a voter’s political right. They argued “In cases of challenging partisan gerrymanders, the pursuit of fair representation has presented a particularly vexing problem” (Herbert & Jenkins, 2011, p. 546). Hence, their article’s discussion of the issue of qualitative equality and fair representation over former struggles toward numerically equal representation.

Mark E. Rush (1994), a political science professor, illuminated the gerrymandering issue in a different light. Conversely, he examined gerrymandering as a distinct problem from the issue of representation in his article, “Gerrymandering: Out of the Political Thicket and Into the Quagmire.” However, his explanation for the issue is quite like Herbert and Jenkins’s. Rush (1994) stated that gerrymandering

…uses redistricting for partisan ends by dividing concentrations of voters to prevent coalescing into a majority district, or by concentrating so many group members into a district that their electoral strength is diluted because the extra votes could have been used to help a sympathetic vote (p. 682).

Nevertheless, Rush (1994) perpetuated the issue of vote dilution as inherent to the issue of gerrymandering, rather than fair representation. He argued that the packing of voters into a district, the cracking of voters into multiple districts, and the protections surrounding incumbency dilute the vote of the opposing party. He conveyed the overarching dilemma of individual voting rights and group representation. Specifically, his article serves to address the idea that a solution to the issue of gerrymandering will only be one step to initiating fair representation.

Stern (1974), a manager of the Chicago Law Review, facilitated a similar ideology to the issue of gerrymandering in his essay, “Political Gerrymandering: A Statutory Compactness Standard as an Antidote for Judicial Impotence.” Stern (1974) discerned that the issue of gerrymandering is still relevant despite equally weighted votes based on “one-man, one-vote,” because “…gerrymandering denies fair and effective representation if it is designed to minimize or cancel out the voting strength of identifiable political groups” (Stern, 1974, p. 398). Further, like Rush (1994), he stated the issue to be proving how voting strength is reduced by gerrymandered districts. His comment, concomitantly, attempted to resolve the issue of the definition of “…fair and effective representation” and show how gerrymandering denies this (Stern, 1974, p. 399). It is the issue of gerrymandered districts minimization of issue-groups voters’ voices that Stern promoted as the biggest challenge of gerrymandering.

Similar to prior articles, Engstrom (2019) argued that gerrymandering is calculated manipulation of the electoral redistricting process. Engstrom (2019) used original data analyses in his research study, “Partisan Gerrymandering: Weeds in the Political Thicket,” to display the issue of excessive partisan gerrymandering in the United States election systems. The author argued that the dispersion or concentration of voters in a districting plan is meant to “…waste a larger part of the other party’s votes, either in support of losing candidates or through excessive support for winning candidates, then happens to the votes cast by its own supporters” (Engstrom, 2019, p. 23). Therefore, he argued that gerrymandering is an unmitigated political issue to gain an electoral advantage. Most glaring of a similarity, Engstrom (2019) backed Stern’s (1974) argument that the one-person, one-vote rule actually inhibits fair representation, rather than achieves its goal of effective representation.

While Forgette, Garner, and Winkle (2009) agree with the issue of gerrymandering as the drawing of district lines to promote a group or individual politically, they use their essay to explore the problem gerrymandering enables. In the co-authors research paper, “Do Redistricting Principles and Practices Affect U.S. State Legislative Electoral Competition?” they evaluated the connection between redistricting principles and the effect they had on electoral competition. In fact, the authors established the claim that the issue of gerrymandering in the redistricting process results in the issue of reduced election competition. Specifically, Forgette et al. (2009) analyzed the state legislative redistricting process through inspecting the percent of uncontested legislative seats and the contested seats margin of victory and discovered that the increase in both correlates with a decrease in competition. Thus, Forgette and his co-authors deduced declines in electoral competitiveness aligned with gerrymandering to empirically investigate the effect the redistricting process has on voters.

The authors of all five articles may differ on the exact definition of gerrymandering; however they all established the main concern with how the issue impacts the political party not in control, which simultaneously takes voice away from the voters. Yet, it is the notion in all five sources that gerrymandering proliferates into greater problems that connects how the sources define the issue. From Herbert and Jenkins’s (2011) and Engstrom’s (2019) claim that gerrymandering inhibits fair representation, to Rush’s (1994) assertion of vote dilution, and finally Forgette’s and his co-authors’ (2009) declaration of reduced electoral competition, these pieces of literature concur that gerrymandering often results in a greater issue than itself.

Causes

The fundamental need for the redistricting process stems from one place. Engstrom (2019) credited the decennial census with the responsibility of shifting district boundaries. In fact, his paper attributed those in charge of the redistricting process, the state legislators, to be guilty of causing the partisan gerrymandering issue. The author stated, “Their interest is often much more political, even blatantly political—to gerrymander the districts to gain, or preserve, an electoral advantage for the party they prefer of for which they are working” (Engstrom, 2019, p. 24). The state politicians in control of district arrangement are free without political repercussions to redistrict using a partisan gerrymandering process. In short, the author promoted the cause being that the politicians in charge of the task of redistricting accomplish the gerrymander by ensuring their own party’s victory by any means necessary. Engstrom (2019) reported that though the reapportionment processes intent originated with ensuring population-based equality, that the legislators in charge, whether they are Republican or Democrat, are concerned with designing districts “to entrench their parties in political office” (p. 32). He fostered the idea that the main cause of the gerrymander issue lies with legislators’ political interests. In fact, he acknowledged that the legislators responsible for gerrymandering can change the redistricting process to solve the issue, but he argued that will never happen due to the lack of incentive to do so.

From a different standpoint Forgette et al. (2009), centered gerrymandering’s causation on the lack of redistricting principles. The disparity amongst states in their districting principles causes confusion on what is acceptable in reapportioning districts and what is defined as gerrymandering. While the co-authors acknowledged that most states “declare traditional ‘politically neutral’ redistricting principles…,” nearly all vary on the principles that impede the legislators’ abilities to gerrymander district lines (Forgette et al., 2009, p. 153). While the authors advanced the cause as the lack of district processes and principles, they also assented with Engstrom’s (2019) opinion of how politically charged the gerrymander process is due to the legislators in power. Forgette concurred that states with their own legislators in charge of reapportionment draw detrimentally politicized districts to establish incumbency protection. The authors expressed that states that lacked substantive redistricting principles show a lack of electoral competition, which is furthered amongst states that give power to politicians who use this process to practice a partisan gerrymander. In fact, the co-authors argued that though principles in place can guide mapmakers in the districting process, the partisan bias that envelops the legislators encourages their pursuit of political goals, whilst meeting these limited standards.

Another cornerstone to understanding the cause of gerrymandering is established in the article written by Herbert and Jenkins. While the co-authors readily concede with the formerly established cause of gerrymandering lying with the politicized districting process, their article illuminated the cause that allows the issue to proliferate. There is a notable absence of a “judicially manageable standard” for the Supreme Court and federal courts to follow (Herbert & Jenkins, 2011, p. 551). While the court may stop gerrymanders using the “one-person, one-vote” principle established for population-based equality in the sixties, gerrymandering proliferates as state politicians redraw maps without any “…constitutional or statutory defects” (Herbert & Jenkins, 2011, p. 551). The lack of the courts willingness to involve themselves in partisan gerrymandering cases allows the legislators to continue this issue. Gerrymandering continues without politicians’ fear of court redress because of no apparent judicial standard to try partisan gerrymandering cases. Herbert and Jenkins (2011) reasoned that with the court’s incapacity for standards of when partisan gerrymandering goes too far in relation to election outcomes, and whilst a justiciable standard remains elusive, voters cannot depend on courts to regulate the gerrymandering process. The courts continued rejection of justiciability and lack of a set standard for judicial intervention has caused gerrymandering to continue without fear of disrupting fair representation.

With similar ideology, Rush (1994) concurred that the partisan intentions that motivate legislators during the redistricting process is the underlying cause of the contention surrounding gerrymandered plans. Rush’s (1994) article sympathized with the causation promoted in Herbert and Jenkins (2011) essay. The author believed that though gerrymandering may seem to be an abundantly clear issue, it is the decision of when a districting plan is unacceptable to voting rights that is the direct cause of the gerrymandering proliferation. Without a determination of a clear standard for what makes a district fair, the United States Supreme Court has trouble resolving the issue. A challenge to a district plan must prove a group has been negatively left out of a gerrymandered proceeding. Therefore, gerrymandering claims of voter dilution is focused on “groups of voters” rather than just the individual. This cannot be simply shown, as partisan gerrymandering envelops “political groups…membership in the former is determined behaviorally: you must register or vote as a Democrat or Republican to be so identified…” (Rush, 1994, p. 683). As a result, the unknown concept of partisan gerrymandering, and how it should be defined in the light of individual rights and within group representation, is the origin of gerrymandering’s continuation.

Stern (1974) supplemented causes suggested by Rush (1994) regarding the determination of gerrymandering’s effect on partisan behavior of the voters, and how it should be proven. He suggested that exhibiting the objective to discriminate is necessary to refute a gerrymandered district plan, “…but intent is unlikely to be provable where the group discriminated against is simply ‘those who do not support the controlling party in a safe district’” (Stern, 1974, p. 409). The author credited the impossibility of proving the denial of fair representation and the proof of intent to discriminate as why judicial rectification is inaccessible. Without establishment of clear representation dilution, continued partisan gerrymandering is generated. So, Stern (1974) stated that the allowance of gerrymandered plans causes the cycle to continue in every forthcoming redistricting.

It is the stark similarity in supposed causation between all five sources, with exception to Stern’s (1974) paper, that engulfs gerrymandering’s continuity. The derivation is new and advanced “computerized mapmaking technology” (Rush, 1994, p. 682). These technological advancements create a multitude of district maps that appease the statutory and constitutional districting practices, including “one-person, one vote,” to maintain legality while simultaneously giving legislators the choice of what plan best suits their intention. Forgette et al. (2009) argued that this technology-based selection process will mute set principles intended to prevent gerrymandering. Rush (1994) suggested that this will allow for continued divisions of political groups’ voting strength and reduce a political party’s ability to win in forthcoming elections. In fact, Herbert and Jenkins (2011) forwarded “Redistricters can all but guarantee compliance with the equipopulation requirement of the Equal Protection Clause, minority representation in accordance with the Voting Rights Act, and allegiance to traditional districting principles…” (p. 552). These four sources promoted new technological-based redistricting as the greatest cause to new gerrymandered districts.

Consequences

Herbert and Jenkins (2011) highlighted three major consequences of the present issue in their article, the first being the influence voters have on the democratic process. If action is not taken against gerrymandering, the choice voters are promised in democratic elections is removed. The co-authors highlighted that the United States government, which was founded on the ideals of being representative has increasingly become worse in fulfilling “…the promise of government for the people, by the people” (Herbert & Jenkins, 2011, p. 558). The other two consequences they established go hand-in-hand: incumbent protection and reduced competition in elections. Self-interested partisan districting culminates in gerrymandered districts. The very branch of government that is intended to represent changing voter desires instead remains consistent with the interests of politicians whose party is in power.

While Rush’s (1994) acknowledgement of the consequences is limited, he briefly wrote about the struggle of maintaining a balance between “individual voting rights and group representation” (p. 685). His fear did not stem from gerrymandering, but rather the consequence of trying to remedy the issue. He perpetuated the belief that in trying to eliminate unfair reapportionment plans the outcome may be worse than the intention. Rush (1994) feared that rather than fulfilling fair representation, gerrymandering contention will create greater tension in the election process.

In concurrence with Herbert and Jenkins (2011), Forgette et al. (2009) presented reduced electoral competitiveness as the most notable consequence of inaction against gerrymandering. The authors attributed this apparent decline in competition to the severe increase of state legislators running uncontested. This consequence stems directly from the incumbency protections that gerrymandering harbors. Thus, partisan seat balance will follow the party in power with each election cycle, and as a consequence lead to re-election of the same state legislators. Forgette et al. (2009) stated that “Redistricting might only intensify, rather than generate, partisan stratification” (p. 169). If the gerrymandering issue is not resolved the very system intended to facilitate the representation of voters will be undermined, and instead promote an incumbent focused process eliminating legislative competitiveness.

Engstrom (2019) discussed how the consequences of gerrymandering have come to fruition in previous election cycles. He ascribed “manufactured majorities” as the most direct result of gerrymandered districts. This means that although one party could win a majority of the population’s vote, the other party’s candidate, if that party was in power for the previous redistricting cycle, could win a greater percent of seats in the legislature. Engstrom (2019) found that disproportionate election results are a sure sign that partisan gerrymandering has taken place, and “If the majority statehouse party wins a significantly larger share of House seats than its congressional votes would appear to justify, then one might reasonably suspect partisan gerrymandering” (p. 27). Further, he presented the consequence of inaction, as the durability of the gerrymander. He maintained that following the initial gerrymander after the census redistricting there is almost always a consistency of seats won by the party in power for the following three elections. This pattern of replication will continue, and consistency in legislative results will remain entrenched in each election cycle until after the next round of redistricting. However, this presented the final consequence discussed in his article, the “especially egregious gerrymanders” may maintain themselves even following the next redistrict. Where a party controls a state legislature, there is no reason to see anything but a preservation of extreme gerrymandering techniques. If a solution is not put into place the incumbents who put themselves in power using gerrymandering tactics will continue the cycle for decades to come, with the opposing party mirroring those tactics to do the same.

Whilst Stern (1974) agreed with the assertion of reduced voter representation and the diminishment of legislative competition through reducing the effectiveness of a voter’s franchise, he also examined the minimization of coalitions. He disclosed that, in the safe districts that gerrymandering creates, the party in power can put up any candidate and victory is still guaranteed. He pointed to the repeated incumbency of a singular party holding a district as a major danger of this issue. Stern (1974) believed that incumbents would be able to maintain office for an extended period of time without ever acknowledging voter beliefs in any way. However, Stern (1974) feared that “…gerrymandered districts minimize the need to fuse various small or single-issue groups into an electoral coalition, thus removing the only significant opportunity for those groups to be heard” (p. 405). Gerrymandered districts are objective in nature, and Stern (1974) pointed out that this districting process will reduce effective representation because candidates maintain their incumbency without working with the voters to form coalitions. The author perpetuated the idea that in American democracy representatives should in practice represent all interests, not just their party’s majority. The real consequence of gerrymandering is that when candidates maintain their seats the views of the minority will never be considered if they do not share the controlling group’s ideology.

Solutions

While Engstrom (2019) admitted that the Supreme Court and district courts are no longer an avenue to try to remediate partisan gerrymandering cases, he focused his solution on state courts. With the idea in mind that state legislatures are not motivated to facilitate reforms themselves, for example using independent commissions, he tendered state courts as an approach to gerrymandering eradication. In order to solve the issue, state court judges must create a justiciable standard to define “extreme gerrymandering that could easily provide a standard for determining when political gerrymandering has gone too far” (Engstrom, 2019, p. 34). State courts will be less lenient of partisan gerrymandering cases then the Supreme Court, and Engstrom sees them as the best course of action to center redistricting disputes.

From a different perspective, Forgette et al. (2009) promoted the implementation of an increase of formal redistricting principles to solve gerrymandering. States that implement more principles are more vulnerable to the courts striking down gerrymandered plans. The co-authors concluded that population-based principles specifically lowered the probability of uncontested elections and prevented gerrymandered facilitated incumbency. While the primary standards of redistricting are set by the federal courts, secondary population-based principles implemented by state legislators could guide the mapmaking process away from the highly partisan nature of redistricting. Forgette et al (2009) analyzed their results showing “Population-based criteria (respect for political subdivisions and cores of prior districts and the preservation of communities of interest) are related both to the margins of victory as well as to the probability of uncontested seats in state legislative elections” (p. 166). In fact, the authors pointed to the adoption of all three statutory restrictions: communities of interest, cores of prior districts, and political subdivisions to assist competition and solve gerrymandering. The culmination of this trio of population-based standards can reduce uncontested rates and margins of victory, promoting an abolishment of gerrymandered processes.

In contrast, Herbert and Jenkins (2011) asserted the advantage of state government reforms to resolve gerrymandering. As the redistricting power lies in the hands of the state legislature, the authors pinpointed that the redistricting procedures improvement to be in enacting a process that allows the voters to outmaneuver the subjectivity of state politicians. Herbert and Jenkins (2011) solution reforms the manipulation of districting “…by installing independent commissions to take responsibility for drawing congressional and state legislative maps” (p. 556). As many state legislators redraw districts for themselves, state-level redistricting reform will not only improve representation, but also bring back choices to voters. Herbert and Jenkins (2011) argued that commission-based reforms are absolutely a necessary solution to take the mapmaking process out of state legislators’ hands, as they are the very politicians whose careers benefits from gerrymandered plans.

In comparison, Rush (1994) looked towards replacing the current electoral system as a remedy to the issue. He promoted the idea that by minimizing the use of district lines, the state legislature could also reduce the potential to gerrymander. He believed if the government “employ[ed] a form of proportional representation, the travails of the redistricting process would be diminished along with the number of districts” (Rush, 1994, p. 684). However, while this solution may mitigate the need for census reapportionment, Rush (1994) stated that resolving the gerrymandering controversy begins with an agreeable standard for what representation should look like in the redistricting process.

Conversely, Stern (1974) discussed a standard created by Congress to minimize the potential for partisan gerrymandering in legislature that is also justiciable by the court systems. He suggested a compactness standard that can be used to create plans, and that evaluates each district within each of those plans. The author suggested circular districts that reduce the distance between any two points without destroying the absolute area of that district and to do this by minimizing as many population differences as possible while respecting compact boundaries.  This solution not only limits legislative gerrymandering from the get-go, but also gives the court system a standard to review plans. Heterogeneity of districts is inherent to a representative government and a must for party competition, “Compared to gerrymandered districts, compact districts more effectively preserve political heterogeneity” (Stern, 1974, p. 414). With this set standard in place, legislators can no longer promote the political homogeneity of their own party in a district.

Conclusion

The sources in this review of the literature share the common concern of gerrymandering in the districting process. However, the authors varied in the solutions they promoted to resolve the issue. While Engstrom (2019 focused on state courts, Forgette et al. (2009) analyzed population-based standards, Herbert and Jenkins (2011) advocated state-level reforms, Rush (1994) nurtured a change in election systems, and Stern (1974) studied a compactness standard. While the approach to regulating the decennial redistricting process remains incredibly complex, it is clear the debate is not close to being over. Politicians and voters alike have stake in the future of the political process, and ultimately must critically think over what an unremedied gerrymandered United States will look for the ideology of democratic representation.

    References

Engstrom, R.L. (2019), Partisan Gerrymandering: Weeds in the Political Thicket. Social Science Quarterly, 101(1): 23-36. https://doi.org/10.1111/ssqu.12743

Forgette, R., Garner, A., & Winkle, J. (2009). Do Redistricting Principles and Practices Affect U. S. State Legislative Electoral Competition? State Politics & Policy Quarterly, 9(2), 151–175. http://www.jstor.org/stable/40421634

Hebert, J. G., & Jenkins, M. K. (2011). The Need for State Redistricting Reform To Rein in Partisan Gerrymandering. Yale Law & Policy Review, 29(2), 543–558. http://www.jstor.org/stable/41308538

Rush, M. E. (1994). Gerrymandering: Out of the Political Thicket and Into the Quagmire. PS: Political Science and Politics, 27(4), 682–685. https://doi.org/10.2307/420367

Stern, R. S. (1974). Political Gerrymandering: A Statutory Compactness Standard as an Antidote for Judicial Impotence. The University of Chicago Law Review, 41(2), 398–416. https://doi.org/10.2307/1599154