Should we

Should we, as a democratic society, allow the practice of gerrymandering to be done by the very politicians attempting to gain, or retain, political power? Should we continue to allow this practice to dilute minority votes, or any vote for that matter, in order to push an agenda or seize control of the voting power we rely on our politicians to use while representing us in our democratic government? This paper will explain the basics of what gerrymandering actually is, give a history of it’s beginnings, discuss current examples of it and how it has impacted recent elections as well as can drive future elections, look into potential impacts of recent litigation on the subject, and finally discuss thoughts on whether this practice should even be allowed as a part of our democratic election process.
Throughout the history of our country, gerrymandering has been a political tactic employed to impact voting district boundary lines. Gerrymandering is the practice of manipulating the shape of legislative districts to benefit a particular politician, political party, or group of voters. It is usually carried out to guarantee the reelection of the incumbent party member so that the party retains more seats, and possibly can win more to maintain or obtain a majority. This allows them to receive more seats than the number of which they are actually entitled to, compared to the overall percentage of voters in these districts. This practice becomes an issue when it comes to elections, by manipulating how minority votes are counted and allowing them to receive the same fair voting rights as other voters. Each individual should have the same opportunity to have their vote count. When state legislatures, in reality whichever political party has the majority in that state legislature at the time, draw the maps the way they do, it generally tends to make things worse for these minority voters. The legislators then end up redrawing the district lines each time demographics change in particular voting areas. It ends up being a continuous cycle of attempting to manipulate votes, and therefore manipulate who or what political party is in power at the time.
Throughout the history of the United States there have been many different forms of gerrymandering that have been utilized. Affirmative partisan gerrymandering, partisan gerrymandering, and affirmative racial gerrymandering are a few of these. Affirmative partisan gerrymandering is the drawing of election district boundaries to provide maximum opportunities for the election of certain minorities. Partisan gerrymandering is the drawing of electoral district boundary lines in an attempt to gain political power within a particular political party. The goal is to increase the number of winning candidates within that particular party. An example of this would be a city with three representatives, where the eastern third of that city is Republican and two-thirds is Democratic. If the Republican representative draws the districting lines, they would draw them in the north and southern regions to enable them to at least win on of the three districts. If the Democratic representative draws the districting lines, they would draw them along the east and west direction in an attempt to allow them to win all three districts by getting rid of the Republican votes in those districts. These different types of gerrymandering can be accomplished by various methods, such as splintering, cracking, and packing. Splintering is when they divide up a strong minority to deny it the power to elect a representative. Cracking is dividing up a sizeable minority group into several districts to deny it power to elect a representative. Packing involves the concentration of partisan voters into a single district in order to “waste” their votes on large minorities for a single representative and protect majorities in other districts.
Gerrymandering is designed to disadvantage blacks and language minorities which was a violation of the 14th Amendment, and Federal Voting Rights Act of 1965. Minority votes are just as important as all other votes, and their voices deserve to be heard. As previously mentioned, there is another kind of gerrymandering that deals with minorities not getting a fair vote in these elections which is called affirmative racial gerrymandering. Affirmative racial gerrymandering is drawing legislative district lines in order to maximize opportunities for minority candidates to win elections. Included in affirmative racial gerrymandering is something referred to as majority-minority districts. These are the districts targeted by this practice where the majority of the population are minorities. The idea of only having a district strictly for minorities makes it seem that their votes are not included, and that they are not counted in the overall vote along with all of the other district voters. Is this right? Who does this benefit in the long run?
In 1812, the term gerrymander came from Governor Elbridge Gerry of Massachusetts. He redistricted the state to favor the Democratic party over the Federalists. His plan was to let the Federalists win and have them leave his party, the Anti- Federalists, with the balance of power in all the other districts of that state. A district north of Boston was designed to concentrate on wasting the votes of the Federalist party. In 1986 the Supreme Court ruled that gerrymandered districts are subject to federal court review. After the 1990 census many states had redistricted according to the mandates of the 1965 Voting Rights Act, which prohibited the voting power of minorities. Since 1812, there have been many of cases dealing with gerrymandering where state legislatures drew their congressional maps to favor a particular political party. Obviously, this is not a new practice. So, the question now becomes who should have the power to do this and how should laws be enacted to prevent this from happening.
As stated, there are past cases of this practice being implemented. There are currently a few cases of note where gerrymandering is in the forefront of being a potential issue to impact upcoming elections. Current cases include the states of Wisconsin, North Carolina, Maryland, and Pennsylvania are some of the larger ones. One of the biggest cases reviewed recently is that of the state of Wisconsin. In the Whitford vs. Gill case, twelve residents of Wisconsin who had voted Democratic filed a lawsuit on July 8, 2015 challenging the legislative district plan drawn by the then Republican controlled legislature. The arguments were heard before the U.S. Supreme Court in the Fall of 2017. These are state districts that were redrawn, thus impacting voting in elections for the state legislature. It was the Republicans in power who drew the map, allowing them to convert a statewide vote share of 48.6% into 60 of the state’s 99 assembly seats. The Constitution limits the degree to which a political party can use the redistricting process to essentially entrench itself in power. The Wisconsin challengers relied primarily on the equal protection clause for this argument. The Equal Protection Clause is a part of the Fourteenth Amendment to the U.S. Constitution. This law implies that no state has the right to deny anyone within its jurisdiction equal protection of the law. The Equal Protection Clause was implemented to ensure the fair treatment of ALL legal citizens of the United States. All states must comply with the rulings of the U.S. Supreme Court, which continuously reviews the laws applied by each individual state to ensure it is following its guidelines of fair practice and treatment. In this case, it is being argued that the clause is not being upheld by the state legislature by redrawing district lines unfairly impacting minority voters. They argued it was unconstitutional because it discriminates against the Democratic candidates and voters on the basis of what they believe in. On April 7, 2018 a three-judge panel ruled to allow the case to proceed to trial. This case is currently set to go to trial before the U.S Supreme Court.
In North Carolina they are basically having to redraw their entire map, which appears to have been drawn strictly in favor of the Republican party. When this was discovered, the North Carolina leaders admitted to drawing the lines in advantage of the Republican party and then argued that it should be seen as legal. They were told that they had until January 24, 2018 to redraw their congressional map. This instantly put the Republican seats in the upcoming elections in jeopardy. The judge in this case, James A. Wynn Jr., said that the leaders that drew these lines were motivated by partisan intent. Judge Wynn also believes that in future drawings of the district maps that Republicans should not be allowed to draw them.
The U.S. Supreme Court heard oral arguments March 28, 2018 in Benisek v. Lamone, a case that could have major ramifications for how congressional districts in the United States are agreed to and drawn. The Benisek case, which revolves around the congressional district map in the state of Maryland unlike the state districts as previously discussed in Wisconsin, and whether or not Democrats in the state drew the map to intentionally disadvantage Republican lawmakers from winning seats. This case, the second gerrymandering dispute the court will hear this term along with the Wisconsin case, involves a challenge by Maryland Republicans, who claim that a congressional map drawn by state Democrats puts them at an impermissible disadvantage — in other words, that the map represents an unconstitutional gerrymander. A report released earlier this week by the Brennan Center for Justice found that even if Democrats are able to win the overall popular vote in House races by 10 points in 2018, they will only net a gain of 21 seats in the U.S. House. This means they would still fall short of re-taking the majority in the House. In most states, the legislature draws the districts that are used for electing representatives to both Congress and state legislatures. In both the Wisconsin case, and here in the Maryland case, the argument is that the Constitution limits the degree to which a political party can use the redistricting process to entrench itself in power. This applies to both state and congressional districts. While the Wisconsin challenge relies primarily on the equal protection clause, this case focuses on the First Amendment. The two cases together offer the justices the chance to make significant changes to the law and practice of redistricting.
The most recent gerrymandering case is in Pennsylvania, the districts appeared to be in favor of the Democratic party. After the redrawing of the map, the districts align better with the county lines and only thirteen counties are split into two or three districts. After shutting down the first congressional map the court wanted the map to first of all be fair, and they wanted it to be compact and contiguous. When redrawing the map, they took into consideration proposals that interest groups had submitted. With the new map, voters will be expected to vote fairly within those drawn districts. It is said that this new map will give the Democratic party the push they need to get more votes. Philadelphia remains divided into three districts with a split between the second and third districts, and a portion of south Philadelphia is drawn configured into the fifth district. The new map consists of having three representatives in each party, the democrats are favored to win five seats, with the sixth seat up for grabs with either party having a chance to win. The way the map was drawn, if it were to have been that was for the 2016 election between Trump and Clinton, then Trump would have won two fewer districts and Clinton would have won the other eight. The state of Pennsylvania has an electorate that votes in equal amounts for both political parties.
A lot of professional scholars on the topic of gerrymandering think that it mostly competitive and results in polarization. Every ten years the members of the state legislature redraw the congressional maps for their state. The issue with this is with the state legislatures having control of their districts they will draw the lines to benefit them in every way possible, and solely based on whichever party has majority control of the state legislature. Eight out of the ten most gerrymandered congressional districts were drawn by Republican legislatures. In our very own area of Gainesville, which is in Florida’s 5th district, covering the geographical area all the way up and down the St. Johns River. At one point the district line even narrows to cross a bridge without diluting the solid Republican majorities in the 3rd and 6th districts on either side. As gerrymandering comes again to the forefront of our election process, more and more people are thinking of ways that we can end the practice, resulting in fairer elections of all kinds across our country.
So, what does this all mean? When drawing of these districts occurs, the party in control often uses that opportunity to increase its partisan advantage, or fair share of votes. This has always been and continues to be the overall goal of gerrymandering. It is all about party control and with lines redrawn every 10 years, it can be quite a long time for power to remain within any one party. Techniques employed in this practice have become increasingly sophisticated and effective as well. It is not simply the redrawing of a line on a map anymore. Opponents of this process charge that politicians today can effectively pick their voters, instead of voters picking their representatives. While the cased before the court recently focus on just one state at a time, both major political parties are closely monitoring the issue of gerrymandering and the drawing of congressional maps ahead of an important midterm election cycles. Many lawmakers elected as governors and state legislators in 2018 will be in charge of redrawing these maps that will be used after the 2020 election. Both parties are keenly aware that who wins this year will likely have a huge impact on political power over the next decade.
Is this the first time the U.S. Supreme Court has heard arguments over the practice of gerrymandering? No, it is not, but they definitely represent the first time the court may actually give an answer. The U.S Supreme Court has had a couple of previous significant encounters with the issue of partisan gerrymandering. It wasn’t until 1986 that it first decided it could entertain hearing these disputes at all. It wasn’t until 2004, when four justices took the position that the practice of excessive partisan gerrymandering is unconstitutional, under a variety of different theories. Another four argued that the issue of redistricting was not one to be handled in the courts, but one to be resolved in the political process. Justice Anthony Kennedy took a middle position, arguing that partisan gerrymandering might be unconstitutional if the right theory could be found, but that he had not yet encountered such a theory. In the cases out of Wisconsin and Maryland, they represent attempts to provide Anthony Kennedy with a theory of unconstitutionality that would allow him to join the U.S. Supreme Court’s more liberal justices in finding that at least some partisan gerrymandering violates the Constitution. In essence, to change his opinion into the swing vote and move forth with new laws in regards to this practice.
If the challengers in one or both cases win, the U.S. Supreme Court could finally set down some principles to limit the use of partisanship in redistricting. They could also decide to stay out of the matter completely. They could either leave the door open to future cases or perhaps slam it shut completely, resoundingly stating that it is not a matter for the courts to decide. The could also, as Justice Breyer suggested in the Maryland arguments in March to set the two cases for re-argument together. Justice Breyer also suggested perhaps adding in a third case out of North Carolina that presents similar questions. Whichever way the Court goes, there should be some sort of answer by the end of June, in time for mid-term elections that will follow in the Fall of 2018. Although there may be some benefits to the practice of gerrymandering, those are limited to only helping one side of the partisan line. As a whole, the practice does not represent the overall idea of our democracy where we elect democratic leaders to represent US in state and federal governments. If lawmakers can simply redraw the lines to benefit themselves and increase their chances to stay in office for longer periods of time, they are not truly representing their constituents in their respective districts. It will be interesting to see how the current U.S. Supreme Court cases turn out. In our current political environment, it is imperative for the people to have a voice, majorities AND minorities.