Gerrymandering

Join Brad and Dr. Stephen Medvic, Author of Gerrymandering: The Politics of Redistricting in the United States,  for an in-depth look at gerrymandering. This funny-sounding word gets scorn from both major political parties, yet we have more gerrymandered maps than ever. So how'd we get here and what could we do about it? 

If you enjoy the episode or would like to leave a suggestion for Brad on the topic of a future episode, leave a review in your podcasting app. If you want to continue the conversation started by this episode, tweet Brad @bradleysfallon on Twitter or the show's page @whyandwhynotpod. 

Transcript

Cold Open

*Sounds of horse galloping*

In the Fall of 1788, Patrick Henry rode from his Virginia estate, Scotchtown, to the Virginia state capital of Richmond. You probably remember Henry from his famous proclamation of “Give me liberty, or give me death”. And yeah some nerds may know that he probably didn’t actually say this but you get the idea. 

Henry and his band of anti-federalists had just recently been defeated by the majority of the framers who led the country to throw out the Articles of Confederation and ratify the US Constitution. Henry vehemently opposed a strong federal government and this loss was a major blow. So during his ride to the capital, he plotted his revenge. 

A key player in the creation of the Constitution was James Madison. And Henry knew that Madison was planning a run for the House of Representatives to be a member of the very 1st Congress. So as a part of his revenge, Henry resolved to block his election.  

And since the Constitution empowers the states to determine how elections should be held state legislatures were enabled to create districts for their candidates to run in. Recognizing the potential for vengeance with his party in control of the state house, Henry worked to draw a district for Madison that most thought would be impossible for him to win.

And while this plan ultimately failed, Henry had just done something that would change American politics forever. He introduced gerrymandering to the very 1st Congress of the United States. 

Intro 

I’m Brad Fallon and you’re listening to Why and Why Not, the show where we look at why America’s government is the way it is, and how we could potentially do things differently. On this week's episode, Gerrymandering. 

Redistricting

*Door Knock* 

Every 10 years, without fail they show up in your community. They go door to door *knock* with a list of questions and they’re looking to you for answers. I’m talking of course about the US Census Bureau. 

And every 10 years, 

You see, every ten years the US government is required to count up how many people live here. 

Now there are many reasons for the government to do this. Not least 

Redistricting is the process of using updated census information to adjust electoral districts. Since people are constantly moving to and from communities, this has to be reflected in districts. And this happens on all levels of government. You’ve probably heard the most about this on the Congressional level.  

Typically when you hear about redistricting, it's in the context of a deeply controversial political tactic known as gerrymandering. To find out exactly what that is, I spoke with Dr. Stephen Medvic, Director of the Center for Politics and Public Affairs at Franklin & Marshall College and author of the book Gerrymandering: The Politics of Redistricting in the United States

*Dr. Medvic clip with Gerrymandering definition*

And there are two main ways that mapmakers do this: packing and cracking.

*Medvic clip defining packing and cracking*

An example of packing since the 2010 census is Ohio’s 9th district which snakes its way through multiple counties on the coast of Lake Erie to include as many Democrats as possible in one district to diminish their influence in neighboring districts.

For cracking, you can take a look at Austin, Texas, which has a staggering 6 congressional districts each taking a piece of the city to dilute the concentration of democrat voters and ensure that most districts have a republican representative. 

As a side bit of history here, I should explain why this political tactic has such a strange name. Following the 1810 census, the sitting Governor of Massachusetts, Elbridge Gerry, redrew his state’s legisaltive districts to advantage his party. County. The result was an incredibly strange looking district that the Boston Gazette said looked like some sort of reptile, a salamander, or a Gerry-mander. 

And yeah, that’s right, we’ve all been pronouncing this wrong. But honestly, we’re in too deep now so I’m sticking with the soft G. 

But since the term itself was coined by remarking on the weird shape of a district, people often think that you can tell whether one is gerrymandered based solely on the shape. But I asked Dr. Medvic whether he thinks that’s a good metric. 

*Medvic clip*

And that makes a lot of sense once you think about it. Afterall, populations are spread across states unevenly with lots of people crowding around urban centers and states themselves are often strangely shaped. I mean, have you ever really looked at the Shape of Maryland? It is complete nonsense. 

But anyway, now we’ve established what gerrymandering is and that it comes out of the redistricting process. But to understand how we got to the controversial place that we’re in today, we should look at the history of this tactic in the United States. That and more, after the break.

History of Gerrymandering

Welcome back - before the break we mentioned how gerrymandering is done. But the rules of apportionment haven’t always been the same. Let’s check in with Dr. Medvic to find out what this looked like in early America. 

*Medvic clip*

So while state’s set their own maps as they do today, there was no requirement to actually have districts until the mid 19th century. And it’s important to point out that the standards for drawing these districts were different as well. For instance, Congressional districts today have to be almost exactly equal in population at the time of their drawing. But that just wasn’t the case early on. 

But it should be pointed out that even though gerrymandering was practiced from the get go, the prevalence of it did rise and fall over time depending on the level of competition between parties. With less competition, there was less of a need to gerrymander. 

But then: the Civil War

*Cannons fire and civil war music*

Fortunately, the Union won the war. And as a result, the unthinkable practive of slavery was abolished and the 13th, 14th, adn 15th amendments to the Constitution were adopted. These amendments freed the slaves and finally granted formerly ensalved men with the right to vote. During Reconstruction, this actually led to a slew of black americans being elected to office around the country, 

But after Reconstruction ended, White Americans took dramatic steps to prevent Black Americans from exercising their right to vote. And among those steps was an escalation of gerrymandering. 

South Carolina drew a non-contiguous district, meaning that communities in the same district weren’t even connected. And after they were forced to change that, they created what became known as the “boa constrictor” district that wound around the state and concentrated the majority of Black South Carolinians into a single district. This then allowed all other districts to have white majorities. 

It is important to understand that the primary tactic used to disenfranchise black voters was not redistricting. Rather, states found it more effective to implement voter suppression laws such as poll taxes or so-called “literacy tests”. During this time, racist Americans also started concerted efforts to make black voters very aware of the danger that voting could put them and their families in.

So regardless of whether race, party, or incumbency protection was the driving factor, To understand the abuse of apportionment during this time, you have to look not just at what states did, but also at what they didn’t do. 

*Medvic Clip*

It’s important to know that before the 1960s, the Supreme Court didn’t want to intervene with the apportionment process at all, considering it best left up to the legislative branch. In fact, in a 1946 case called Colegrove V Green, the Court explicitly said that redistricting was too political for the Courts to be involved in. 

*Medvic Clip*

And this was just very clearly undemocratic. And as a result, a revolution began brewing in the courts. 

*Medvic Clip* 

And these are largely the standards that apply today. Nowadays, people typically think of redistricting as the process of ensuring that districts are reflective of populations. And to ensure that apportionment wasn’t used to dilute the votes of racial minorities Congress passed the Voting Rights Act of 1965. Section 2 of the Act prevents states from avoiding the creation of majority minority districts. And hese are exactly what they sound like: where the majority of voters in a district are racial minorities.

And in 1986, an important Supreme Court case called Thornberg v Gingles created a three-pronged test to determine whether a majority minority district could be drawn and required states do so if those conditions are met. 

*Medvic Clip*

Ironically, this created many bizarrely shaped districts so that mapmakers could guarantee that certain districts were majority minority. And that prompted some blowback in the courts and a softening of this requirement overtime. But all in all, between the 1960s and 90s, many would say that the apportionment process was made to be more democratic. But - that changed. 

You see, the Supreme Court doesn’t weigh in on any issue that it deems to be a “political question”. In the case of partisan gerrymandering, the Court sees the issue as inherently political since it deals with the allocation of power within the legislative branch. Given this view, the Court has refused to intervene and essentially said that partisan gerrymandering is allowed as long as it’s not explicitly racially based. 

*Medvic clip*

So now, politicians say the quiet part out loud and claim partisan gerrymandering to legally defend their maps. In my state of Maryland, former Governor OMalley said in a deposition that quote “It was also my intent to create … a district where the people would be more likely to elect a Democrat than a Republican.”. And in 2016, North Carolina State Representative David Lewis said this: 

*David Lewis Quote*

Perhaps the best example of how gerrymandering has stepped up a notch is Redistricting Majority Project, otherwise known as Project Red Map. This was an initiative of the Republican State Leadership Committee which supports the Republican candidates for seats in state legislatures. You can think of this as a state partner to the Republican National Committee. 

The idea of Project RED Map was to invest heavily in state legislative races leading up to 2010 so that Republicans could take control of state houses and draw new congressional maps that favored their party in Congress. 

The RSLC focused on states such as Pennsylvania, Ohio, Michigan, North Carolina, and Wisconsin to do their best to influence state house races. And this investment paid out well for Republicans with many state legislatures flipped and maps gerrymandered during the 2010 cycle.

I’ll be honest, when I first heard of this I was sort of skeptical. I mean, it sounds like some conspiracy theory. But if you just visit redistrctingmajorityproject.com, which is paid for by the RSLC, you’ll find a site actually boasting about the successes of this initiative. 

I do want to make clear that it’s not one party doing this. While Republicans can claim that they paved the way, strategists and politicians on both sides have figured out that this is the way the game is played. And that’s how we ended up where we are today. The Supreme Court is unwilling to intervene and no legislation to prevent partisan gerrymandering nationally has gained traction. 

But it’s worth asking: so what? Everyone is playing by the rules here. Before we get all worked up, we should figure out what the impact of all this gerrymandering is. 

To understand this, let’s go through what experts say. Looking at the impact on the state legislature level, a report from the University of Southern California Schwarzenegger Institute found that gerrymandering results in minority rule. That is, when the party with the minority of votes in the most recent election ended up controlling the majority of seats in the state legislature. In 2018, 6 states where politicians draw the maps had minority rule. And according to this study, 59 million Americans live under minority rule where their legislatures are failing to accurately represent the partisan makeup of their states. And this difference isn’t small. In 2018 Arkansas, Kentucky, Nevada, Oklahoma, Tennessee, and Wisconsin had gaps of 15 percentage points or more between the statewide popular vote won and the percentage of seats won in the legislature! 

Outside of minority rule, many claim that partisan gerrymandering is a contributing factor to extremism. The idea is that if a given district is virtually guaranteed to elect the nominee of a particular party, then the primary election is the real election and the General more of a formality. This means that candidates must compete for base primary voters who tend to be either further left or further right than the general voting population. In order to win over these voters, candidates may move closer to the extremes of the political spectrum. 

However, I should note that research is finding that extremism and polarization is more complex than this and its unclear at this time just how much of an impact gerrymandering is having. It seems to stand to reason that it would have some impact, but in my research the degree of that impact doesn’t seem clear. 

Lastly, experts claim that gerrymandering essentially allows politicians to pick their voters instead of the other way around.  Whether it's completely partisan in nature or incumbent protection, the goal of gerrymandering is to influence the results of an election. The whole nature of this is undemocratic.And as voters come to understand this, it’s easy to become disenfranchised as it feels that your vote doesn’t matter, especially when you’re in the minority and the butt end of the gerrymander. 

So this can all sound pretty gloomy. But there are real steps that can be taken to make a course correction here. We’ll explore some of those, right after the break. 

Final section

Before the break, we learned how redistricting has evolved over time in the US and how we got to where we are today. So the natural next question is: how do we fix this? 

There are three paths that get discussed most often when asking this:

1. The Supreme Court setting standards to end partisan gerrymandering 
2. Congress passing laws to that effect 
3. Or States could just stop doing it

Let’s take a look at each. 

First up, the Supreme Court. Now this does make a lot of sense. The Supreme Court initially refused to hear cases about racial gerrymandering but ultimately ended up setting standards to significantly reduce instances. But in the past decade, the Court has been clear that they do not see partisan gerrymandering as justiciable. This has been disappointing to many, including the likes of Martin O’Malley the former Maryland Governor who I mentioned earlier in this episode. In 2018, O’Malley authored an op-ed titled “I gerrymandered but I hope the Supreme Court ends it”. 

But they didn’t. And after hearing the case against Maryland’s map, they again deemed the issue as a political question.

And to be fair, the Justices are Americans with their own political preferences. It may just be completely honest for them to say that they can’t rule on partisan gerrymandering without bias. And even if they could, its still not clear what parameters could be set to determine whether a district was truly gerrymandered. But either way, it seems highly unlikely that partisan gerrymandering will be resolved by the Court. 

Okay - but surely states could just stop gerrymandering. 

This is very true. And since politicians have clear political preferences, many call for removing the map drawing power from legislatures entirely and giving it instead to independent redistricting commissions to draw fair, balanced maps. And some states have actually established these. Colorado and Michigan both have independent commissions. The commissioners are selected through blind processes that include a lottery selection system and prevents certain people with significant conflicts of interest from applying. And other states have adopted commissions as well. 

Now, it’s debatable how effective these commissions are. If the legislature still ultimately has to approve the maps, then unfortunately these commissions often just further obsfucate the system but don’t actually end gerrymandering. If they can make final decisions on their own, I’ve found good arguments that they truly create less gerrymandered maps with more competitive districts. But the real problem with commissions isn’t that they can’t work, but rather that they do. 

See, the redistricting process has become a political arena where it's within the rules to advantage one party over the other. As such, there is real incentive for politicians to gerrymander to expand their party’s power in Congress and further the social or economic causes that they and their party’s voters actually care the most about. 

Imagine two parties, the yellows and the purples. Both can legally gerrymander the states that they control in order to boost their representation in Congress. And while leaders of the yellow party in all their states think that gerrymandering is a terrible thing, they’re not going to stop doing so unless the purple party states do the same. Otherwise, they would just be passing up on additional seats in Congress and making it less likely to pass things that they care the most about.  

And it's not just a power struggle for the sake of power. Forfeiting Congressional seats has real world impacts including which laws are passed. Since most voters care about their party’s economic or social policies much more than arcane apportionment rules, there is just not much incentive for either party in any state to disarm unilaterally, regardless of whether it's the morally right thing to do. And that’s the rational calculation being made in state houses all around the country. So given this, there is just not a good chance that we address gerrymandering on a national scale by relying on individual states. 

Okay so that just leaves Congress. And the good news is that they absolutely could pass laws to better regulate this. In fact, there is a bill before Congress to do just this. The For the People Act, introduced by Representative John Sarbanes, seeks to bar maps that have either the intent or the effect of giving one party an undue advant­age. But that’s not all. If enacted the bill would enhance the abil­ity of voters to chal­lenge maps in court, require mean­ing­ful trans­par­ency in the map-draw­ing process, and mandate the use of inde­pend­ent commis­sions. And this isn’t some far out goal. The For the People has actually already passed the House of Representatives. But as happens so often it is now stalled in the Senate and, at the time of this recording, it lacks the support of the 60 Senators needed to defeat a filibuster. So this is where the people have a chance to influence what happens next. If you think that gerrymandering is a major problem, you could let your senator know and vote accordingly in both primaries and generals. 

And clearly this is a seriously complicated problem. Maybe you think we need to address but that the For the People Act goes about it wrong. Perhaps we need big structural reforms like multi-member districts. But the first step in addressing this may just be to understand the issue we’re facing. I think that Dr. Medvic summed up the complexity of all this at the end of our interview when he said this:

*Medvic Clip*

So what do you think? Do you have an idea of how we could move forward? Let me know by tweeting me @bradleysfallon on Twitter or by leaving a review and comment of this show. 

And that’s it for this week’s episode! A special thanks to Dr. Stephen Medvic for letting me pick his brain for this episode. Be sure to pick up a copy of his book, Gerrymandering: The Politics of Redistricting in the United States if you want to learn more. And a huge thanks to you for giving this a listen. Until next week I’m Brad Fallon and this has been Why and Why Not!