By Jennifer Schulz
One month ago, the Supreme Court of the United States heard oral arguments in Gill v. Whitford, one of the most prominent cases of the term. The case tackles the issue of partisan gerrymandering by looking at a Wisconsin case that argues districts were drawn to disadvantage Democratic voters, thereby limiting the constitutional principle of one-person, one-vote. The Justices now hold the fate of American representative democracy in their hands.
It is widely recognized that gerrymandering is an absurd process that has resulted in some weirdly-shaped districts throughout the country. The League of Women Voters of Asheville-Buncombe County (North Carolina) is even sponsoring a 5K race that reveals to runners the absurdity of district boundaries with a route that follows part of the meandering district line. In fact, studies and polls show that the majority of Americans are against partisan redistricting. But how did we get here?
States reevaluate the borders of their federal and state legislature districts after each census to reflect population changes. Each congressional district is meant to have about the same number of people; the 2010 census determined each district’s size to be about 711,000 people. The number of congressional districts varies by state, from 1 (seven states) to 53 (California), and the number of districts in each state can change in each redistricting cycle. Some states have additional requirements (e.g., contiguity, compactness) in determining state legislature lines.
The redistricting process varies from state to state. In most states, the state legislature is responsible for determining district boundaries. The party controlling the legislature determines and approves the new maps, which the governor can accept or veto. Some states also use advisory committees or a backup committee when the legislature does not complete redistricting by a certain time. Other states use politician commissions to remove the process from the legislature. A few states, including California, use independent commissions instead.
Regardless of who draws the lines, there are a number of ways the districts could be divided. The Washington Post has a useful infographic that explains how gerrymandering works, showing numerous ways to divide the same group of people into districts.
The above example shows how the same group can be divided in different ways to achieve specific results. Although red and blue suggest redistricting according to political affiliation, divisions can be based on any number of factors, such as race. Those who control the redistricting process effectively have the power to determine whether or not each vote counts.
While racial gerrymandering in both North Carolina and Virginia has recently been challenged and overturned, Gill v. Whitford focuses on about partisan redistricting. Specifically, the case looks at Wisconsin, where “the Republican leadership developed a voting district map that its drafters calculated would allow Republicans to maintain a majority under any likely voting scenario.” The Supreme Court, in addition to looking at whether partisan gerrymandering is justifiable, also examines whether the district court ruled appropriately, given precedent set in Vieth v. Jubelirer. That case upheld Pennsylvania districts, but remained open to deciding in the future if a clear, enforceable standard should emerge.
Although the Supreme Court uses many standards to determine the constitutionality of various issues, there is a debate on whether or not the Court will readily embrace numerically-based metrics. In Gill v. Whitford, the plaintiffs primarily measure gerrymandering with the efficiency gap – a metric that “captures the relative number of votes that are ‘wasted’ among Democratic and Republican voters in a set of legislative elections.” Wasted votes are both the votes that exceed the amount needed to elect a candidate and those cast for the losing candidate. The efficiency gap looks at whether the redistricting plan makes one party waste more votes than the other. The question then becomes, how much is too much?
While it’s unclear which way the Court will rule (as it likely will come down to Justice Anthony Kennedy), using an appropriate measure of gerrymandering may very well play a key role in the outcome. Regardless of the ruling, there is a renewed discussion around the issue and there are many new state initiatives to move toward independent redistricting commissions. Although independent commissions may not make every district competitive, it can help remove partisanship from the districting process and avoid legislative stalemates and costly legal battles.
Jennifer Schulz is a second-year Master of Public Policy candidate at the Goldman School of Public Policy and a public policy generalist.