On the 26th of March 1812, the Boston Gazette printed a cartoon that satirised the unconventional shape of a district in Massachusetts that had been redrawn, calling it the ‘Gerry-mander’. The name derived from the district’s resemblance in shape to a salamander, combined with the last name of the then Governor of Massachusetts, Elbridge Gerry. Gerry signed into law a bill that redrew electoral boundaries in Boston to disadvantage the opposing party, and with that, the term gerrymander was born.
This was not the first instance of legislators attempting to redraw districts to favour their party in an election, nor was it the last, with the practice continuing to this day. The presence of gerrymandering throughout American electoral history and its continued use makes it one of the most contested areas of electoral procedure in the United States.
Gerrymandering has been part of America’s electoral processes for centuries and it is argued to be a powerful tool in gaining an electoral advantage over an opposing party.
Attempts to manage the size and boundaries of districts date back to the 1600s in America. For example, in 1619, the first House of Burgesses in Virginia consisted of two representatives from each settlement, however, after ten years the number of representatives ranged from one to six depending on the size of the settlement. Pennsylvania saw some of the earliest attempts at gerrymandering, as lawmakers deliberately malapportioned districts to enhance their prospects for electoral success, and by 1840, all states that used districts in their electoral process experienced some form of gerrymandering.
Gerrymandering has often been motivated by racial segregation as the malapportionment often serves to diminish the political power of the immigrant and ethnic working class. Modern day gerrymandering usually takes places every ten years following the Census and occurs in two forms: cracking and stacking. Cracking is when one group of voters is split across districts to dilute their effect on the overall result, whilst stacking is when a district is disproportionately full of supporters of one particular party so that many of their votes are wasted.
Much as Elbridge Gerry redrew boundaries to benefit his Democratic-Republican Party and limit the power of the opposing Federalists, today both Republicans and Democrats practice gerrymandering in attempts to limit their opposition’s power and maximise their own electoral success.
Contemporary use can be seen in Pennsylvania’s 2012 House of Representatives elections, in which Democrats won five of the eighteen available seats, despite winning over half of the popular vote. This is because Democratic voters were stacked into districts where the representative won an average of 76% of the popular vote, whereas Republican winners achieved an average of 59% of the vote. Similar practices occurred across America, resulting in the Democratic Party winning only 201 of the 435 seats in the House, despite winning a majority of the popular vote.
These practices are admitted to by legislators, with David Lewis, a Republican member of the North Carolina general assembly, saying ‘I think electing Republicans is better than electing Democrats … so I drew this map to help foster what I think is better for the country’. This results in electoral contests becoming less competitive over time; in 1992, 100 of the 435 seats in the House of Representatives were classified as competitive by Congressional Quarterly, with that reducing to 50 in 2000 and 29 in 2004.
That being said, the substantive, political and ethical implications of gerrymandering are contested. There are many who see gerrymandering as undemocratic and unconstitutional; a blemish on America’s electoral process. These arguments posit that gerrymandering has disenfranchised millions of voters over past centuries and continues to disenfranchise groups who need political representation the most. Gerrymandered boundaries arguably contravene the fairness element in the jurisprudential concept of fair and effective representation and should be eliminated from the electoral system for the health of democratic processes in the US. There are opposing arguments that gerrymandering does little to impact the overall result of elections and that other variables and processes are to blame for disproportionate representation.
The arguments that gerrymandering is undemocratic are perhaps unsurprising as Elbridge Gerry himself once opined that ‘democracy was the worst … of all political evils’.
There have been a variety of reforms proposed that would either mitigate the impact of gerrymandering or eliminate it in its entirety. In Florida, for example, after many elections that disproportionately benefitted the Republicans, a network of left-leaning groups lobbied to pass legislation that mandated 'congressional and state legislative districts be compact and contiguous in shape’ and to ‘prohibit redistricting plans drawn with the intent to favor either political party’.
It has also been posited that Congress, using their powers under Article 1, Section 4 of the Constitution, should pass a law mandating that states take the competitiveness of districts into account when redrawing congressional district boundaries, which would help mitigate the impact of gerrymandering on competition and representation.
There are three core routes of reform that have been proposed to counteract or eliminate gerrymandering: redistricting commissions, new voting systems, and districting algorithms.
A prominent argument for achieving more fair districting and therefore election results is through stripping partisan legislatures of redistricting power and giving such power to redistricting commissions. The use of these commissions would remove potential partisan bias from the redistricting process and ensure fairer and more representative elections. These can take the form of advisory commissions which consist of non-legislators and provide non-binding advice; independent commissions which consist of non-legislations and non-public officials whose recommendations are enacted; and bipartisan commissions which are comprised of legislators from the major parties to ensure partisan balance.
Such commissions are used in Arizona, Washington, Hawaii and California to decide on congressional and state legislative districts, with a further six states using commissions to confirm state legislative districts. However, this reform route does have the disadvantage that the decisions of these commissions may well inadvertently create uncompetitive races, even without an intent to create partisan bias, thereby reducing the quality of political representation for voters.
As such, Nicholas Seabrook argues that states can mitigate this disadvantage by modifying the process, mandating the commission to take the partisan affiliation of voters into account by giving them a legal mandate to create a certain percentage of competitive districts in the state. This would ensure that bipartisan or independent districts are drawn that retain political integrity and competitiveness.
New Voting Systems
It has also been posited that states could move away from the first-past-the-post system of voting traditionally used and opt for a more representative system of voting, one that would inherently reduce the impact of gerrymandered districts or eliminate the need for district as a whole.
One system which could be employed is the single transferable vote system, wherein voters can rank candidates and if their first preference is eliminated, their vote is transferred to their next preference and so on, to achieve the most representative election. A disadvantage to this voting model is that is does not eliminate the opportunity of legislators to gerrymander districts and achieve disproportionate results.
There is also the system of proportionate representation, wherein each state would retain the same allotted number of representatives, however, a party would be awarded a number of representatives that directly reflected the proportion of the popular vote they received. In its most direct form, it would eliminate the gerrymander entirely as it would abolish districts. However, a disadvantage of this approach would be that representatives would not be accountable to constituencies and may be less inclined to directly represent their views.
To counteract this disadvantage, a further option would be to use the mixed-member proportional representation system, where the same mechanics are present as in the standard proportional representation system, but representatives are still directly responsible for and accountable to constituencies.
Districting algorithms have also been proposed as a potentially effective tool in the reform of the electoral system, by not only creating district boundaries that are representative and competitive, but by demonstrating to the courts that an identifiable standard of partisan gerrymandering can be observed.
One potential method is proposed by Jowei Chen and Jonathan Rodden, who argue that partisan gerrymandering can be identified by ‘contrast[ing] the anticipated seat shares for the major parties in each of the simulated plans and in the plan promulgated by a state’. If courts do this and see that the partisanship of a proposed plan lies in the extreme tail of the distribution, then partisan gerrymandering can be identified, disqualified and new, fairer districting can be pursued.
Wendy Cho and Yan Liu also propose an algorithm that uses a supercomputer to create districts based on the core criteria that courts require to consider cases of partisan gerrymandering. These criteria include ‘population equality, contiguity, and constraints on compactness and preserving communities of interest, cities, and counties’ and the algorithm can simulate millions or billions of district maps that are derived exclusively from the aforementioned non-political information and criteria. As such, if the districts in the simulated maps do not resemble the districts that were created by partisan efforts, then one can make a reasonable inference that the districts in question experienced partisan gerrymandering, thus, the Supreme Court can rule related cases justiciable.
There is also an algorithm to create fair districts called the shortest split-line method. This method takes the shortest possible line such that half of the individuals in the state are on one side of the line and half are on the other, then this process is repeated until there is an appropriate number of districts in the state. This method cannot be subject to partisan manipulation as it is decided by an algorithm and it is not vulnerable to the deficiencies of an independent or non-partisan commission. However, a disadvantage of this method is that because it does not take into account the potential competitiveness of races in the districts it creates, there would inevitably be some districts with exceedingly uncompetitive elections.
There is also one final reform that is worthy of note, despite the fact that the likelihood of it being adopted is infinitesimally small. A state or the government could hire a third-party organisation and pay them to deliberately gerrymander districts to make the election results as representative of the population as possible. This way, the process would not be subject to partisan bias, and it would not face the issues that the commissions and algorithms face that they can inevitably create uncompetitive races and unrepresentative elections.
This would have to be heavily regulated and have very high levels of transparency as the notion of a paid third-party organisation engaging in deliberate gerrymandering of public elections is politically and philosophically distasteful to say the least. This solution, if monitored effectively and regulated appropriately, could create fair, unbiased, representative and competitive elections that enhance the electoral process in the US.
Likely Outcomes of Reform
The likely outcomes of the abovementioned reforms are hotly contested, with some saying that these reforms will all but eliminate partisan gerrymandering and therefore change the political make-up of state and federal legislatures, with others saying that there are additional variables that mean no amount of reform will deliver unbiased or proportionate elections.
Regarding the specific reforms detailed above, the beneficial outcomes of implementing independent or bipartisan commissions is not guaranteed. A survey of two recent redistricting cycles and found that redistricting conducted by independent commissions was statistically indistinguishable from bipartisan redistricting. There has also been the argument that substantial asymmetries in the transformation of votes to seats can still occur even in the presence of non-partisan commissions.
Regarding redistricting algorithms, it is not clear that such algorithms will achieve the benefits of increasing competition and representation, especially with the representation of minority voters.
The outcome of voting reform could potentially be beneficial, however, a change in voting system is unlikely to occur across all states and as such, there will be systemic misrepresentation in significant areas of the country. There are two additional variables that need to be taken into account when assessing the likely outcomes of redistricting reform: geographical distribution and incumbency advantage.
Arguably, the most fundamental and salient reason for election results that are unrepresentative is the natural geographical distribution of voters. This distribution of voters means that Republicans will typically benefit disproportionately in elections because they have a more efficient residential distribution when compared to Democrats who usually reside in densely packed urban areas.
This is down to the complex process of migration, sorting, and residential segregation that generated a spatial distribution of partisanship. Even when districts are redrawn by courts or commission, there remains a a persistent pro-Republican bias because of the geographical disadvantage that Democrats experience, evidenced by the aforementioned 2012 anti-majoritarian electoral outcomes.
This has been observed for a long time, as Robert Erikson opined in 1972 that Republican’s disproportionate gain in elections is ‘more an accident of geography than the intentional creation of Republican legislatures’. Democrats are ‘inefficiently concentrated in large cities’ and Republicans are scattered more evenly through the suburban, exurban, and rural periphery, as such, Democrats can expect to win fewer than 50% of the seats when they win 50% of the votes.
Additionally, a reason for the possible inefficacy of these gerrymandering reforms is that they fail to take into account the incumbency advantage that helps create disproportionate results. In the House of Representatives, the likelihood that a representative is re-elected is around 95%, and this high rate of re-election is not because of partisan gerrymandering. This incumbent success rate is down to greater access to professional political operatives and campaign knowledge and access to established campaign finance structures, an advantage that has become increasingly more important in American politics.
The effects these reforms have politically is also not clear, however, they may not create the changes to the political make-up of federal and state legislatures that they intend. By using a simulation, Jowei Chen and David Cottrell created election results using districts that have not been gerrymandered and found that, overall ‘the net effect across the states is modest, creating no more than one new Republican seat in Congress’.
Overall, the election results that arose reflected the results that would arise regardless of partisan gerrymandering, and when aggregated, the overall effect on partisan make-up of legislatures is negligible. From this, we see how the political outcomes of these reforms would be minimal, as the reforms would fail to counteract the additional variables involved in disproportionate representation.
Likelihood of Reform
During the 2020 Democratic Primary, many of the candidates, including Elizabeth Warren and Bernie Sanders spoke of their opposition to partisan gerrymandering and of their ambitions to pursue degrees of gerrymandering reform. However, as alluded to above, approaches to partisan gerrymandering are split down ideological lines, with Republicans avoiding gerrymandering reform.
The Supreme Court has decided that with its current Justices, cases regarding partisan gerrymandering are not justiciable, as such, from a judicial perspective the likelihood of achieving reform or progress is small. Especially as two young conservative Justices have been added in recent years, namely Neil Gorsuch and Brett Kavanaugh, the conservative leanings of the Court are unlikely to shift dramatically in the near future.
Legislatively, in 2020 it looks as if the Democrats will retain control of the House, however, it is likely that the Republicans will retain control of the Senate, as such, the legislative route to reform seems unlikely.
If the Democrats win the White House in November 2020, it is likely that there will be an attempt at electoral reform in the area of partisan gerrymandering, however, with both the legislative and judicial branch looking like it will be opposed to such reform in the near future, the likelihood of tangible reform being enacted remains slim.
I would argue that despite the outcomes of elections not being instrumentally different and despite the likelihood of reforms being enacted being small, the intrinsic good in eliminating bias from elections means we should continue to strive to eliminate partisan gerrymandering.
In terms of practical measures to be taken in the immediate future, it appears the best course of actions is to accept the inevitability of a degree of misrepresentation in elections due to variables such as geographical dispersion and incumbency advantage, and to modify the electoral system to try and reconcile these variables with the most representative outcomes possible.
Beyond these practical measures, it is important that the efforts to abolish partisan gerrymandering are continued. As Thomas Paine opined, ‘the right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce a man to slavery’ – partisan gerrymandering risks diluting that primary right of voting for representatives on an intrinsic level, if not instrumental, and therefore is worthy of every effort to eliminate it from the electoral process altogether.
Author: Damien Brown
Damien Brown is a freelance journalist with a focus on US politics.