Gerrymandering – Determining its Constitutionality

Partisan Gerrymandering and Democracy

Partisan gerrymandering is the manipulation of electoral boundaries to achieve supremacy of one party over another. Previously, petitioners have brought certain cases to the Supreme Court alleging partisan gerrymandering but without resolution. Some believe that this is a political issue and the Court should not intervene. Others argue there is no standard that can be applied universally to determine the existence of gerrymandering.

Nonetheless, it should be abundantly clear that absent Supreme Court intervention, a fundamental principle of democracy is at risk. Today’s sophisticated technology and software allow partisan designers to create electoral districts unresponsive to voting majorities of the opposite party. Given that circumstance, it is difficult if not impossible to correct this problem politically. The party controlling the design of electoral boundaries effectively controls the result. No longer is the value of one vote the same throughout the state.

Gerrymandering and the Supreme Court

This in itself calls into question several previous Supreme Court decisions. In a 1963 decision, Gray v. Sanders, the Court found that in less populated counties in Georgia, each vote was equivalent to 99 voters in the most populous county. Justice William O. Douglas stated: “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.” Subsequent Court decisions reaffirmed that principle, while also establishing guidelines for determining acceptable redistricting plans.

Today the Court is considering two cases of gerrymandering: North Carolina by Republicans and Maryland by Democrats. In both states’ midterm election results for the House of Representatives reveal blatant examples of partisan gerrymandering in electoral districts. But it is my contention that those results also provide a method to establish a uniform standard to determine the existence—or non-existence—of unconstitutional gerrymandering.

In the following examples only Republican and Democrat votes are considered and the number of votes is expressed in thousands.

North Carolina

Republicans received 1,521.9 votes (48.2%) and Democrats 1,632.7 (51.8%) of the statewide total of 3,154.6.  Yet Republicans won 8 (72.7%) of the available 11 seats while Democrats won 3 (27.3%). On a per voter basis, each Republican was worth 1.51 votes—% of seats / % of votes cast (72.7% / 48.2%)—while each Democrat was worth 0.53 votes (27.3% / 51.8%. In other words, each Democratic vote was worth about half that of a full vote. Put differently, each Republican’s vote was worth 2.9—almost 3—times more than that of a Democrat.

This is certainly contrary to the one person, one vote doctrine embraced by Justice Douglas in 1963. Had the electoral districts been more reflective of overall voter preferences, Democrats would have won 6 seats to the Republicans’ 5. But the design of such equitable electoral districts is not my focus today. Rather, it is to demonstrate the existence of blatant gerrymandering that must be deemed unconstitutional, and to establish a uniform standard by which future cases can be evaluated.

Establishing a Standard to Prove Gerrymandering

That uniform standard can be determined simply by accumulating the statistics shown above. Compare each political party’s percentage of total votes won to the percentage of the number of seats won. In this case, Democrats carried 51.8% of votes but only 27.3% of seats, a differential of 24.5 percentage points (51.8% – 27.3% = 24.5). If the difference between these two percentages is 10 percentage points or more, that should be prima facie evidence of gerrymandering.

Using the value of a vote for each party is another method to establish a uniform standard to determine the existence of gerrymandering. In the case of North Carolina each Republican vote was worth almost three times that of each Democrat (1.51 / 0.53 = 2.9 times). If that number is more than 1.5 times greater that should also be prima facie evidence of gerrymandering.

If both standards are breached, that should be incontrovertible evidence of gerrymandering and a redistricting ordered.

Maryland

This state is a mirror of North Carolina, except that here Democrats have done the gerrymandering.  Republicans received 733.9 votes (33%) and Democrats 1,493.0 (67%) of the statewide total of 2,226.9. Yet Republicans won only 1 (12.5%) of the available 8 seats while Democrats won 7 (87.5%). On a per voter basis, each Democrat was worth 1.31 votes—87.5% / 67%)—while each Republican was worth only 0.38 of a full vote—12.5% / 33.0%. In other words, each Republican vote was worth less than 40% of a full vote. Put differently, each Democrat’s vote was worth 3.4 times more than that of a Republican (1.31 / 0.38 = 3.4 times).

The difference between the Republicans’ percentage of total votes won (33.0%) and the percentage of total seats gained (12.5%) was 20.5 percentage points. Since this differential is greater than 10 percentage points, that should be prima facie evidence of gerrymandering. As the value of a Democrat’s vote was more than 1.5 times greater than that of a Republican, that should also be prima facie evidence of gerrymandering. In this instance, however, both standards were breached. That should be incontrovertible evidence of gerrymandering, and a redistricting ordered.

Pennsylvania

Pennsylvania is presented as an example of a state that has recently been redistricted. It demonstrates the validity of the standards recommended above to establish boundaries beyond which gerrymandering should not be accepted.

In this instance Democrats received 54.3% of votes cast but 47.1% of the number of seats. The differential of 7.2 percentage points between the two percentages is less than the standard 10 percentage points. The value of one Republican vote of 0.7 times is less than the standard 1.5 times. Since neither standard was breached, this is not gerrymandering.

Other Instances

The above examples cover election results for the House of Representative in just 3 states.  If this test and these standards were applied to other states, there is no doubt more would be found to have gerrymandered their electoral districts. And gerrymandering does not end with electoral districts for federal elections. Gerrymandering is just as rampant, if not more so, in establishing electoral districts for state assemblies. Here is but one blatant example.  

Wisconsin State Assembly

Election results in 2018 for the Wisconsin State Assembly represent an example of gerrymandering taken to the extreme. Despite Democrats receiving 53.7% of votes cast, they garnered only 35.4% of the number of seats. So, despite winning a majority of votes, they ended up with 35 seats versus the Republicans’ 64 seats.

Applying our standard test to determine the existence of gerrymandering, we find that the difference between the Democrats’ 53.7% of votes and 35.4% of the number of seats is 18.3 percentage points. Additionally, the value of one Republican vote is 1.40, or 2.1 times greater than the 0.66 value for the Democrats. This latter statistic means that voting Democratic provided only 2/3 worth of a full vote.

Thus, both standards have been breached: more than 10 percentage points difference in percentage of votes and seats and the value of one person’s vote is greater than the standard 1.5 times. Accordingly, this is a clear case of gerrymandering that should be struck down and redistricting ordered.

Conclusion

Voter suppression represents a clear threat to democracy. Gerrymandering is one means to that end. It is now up to the Supreme Court to put an end to this undemocratic and demonstrably unconstitutional practice. It can do so by adopting the uniform standards described herein to assure the sanctity of one person one vote.

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