Drawing the line with Gerrymandering

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Experts discuss regulating partisan and racial gerrymandering.

“The right to vote is the right from which all other rights ultimately flow,” Attorney General Merrick Garland said as states prepared to redraw districts based on the delayed release of 2020 census data. “Redistricting plans or discriminatory electoral practices threaten this fundamental right and are illegal.”

Every ten years, states must engage in redistricting to draw maps that take into account population changes and create relatively equal populations in each district. But this process can harm democracy if politicians use redistricting to distort political representation through gerrymandering, which is why the process has been regulated since the imposition of the Voting Rights Act.

Gerrymandering is the process used by officials to define the boundaries of a district to maximize seats for a particular political party or limit the likelihood of people of color being elected.

Legislators can gerrymander by “packing” or “cracking.” They can pack constituencies by gathering a group of voters into them, so that the ruling group can win more surrounding constituencies. Alternatively, cracking involves dividing a group of voters between different constituencies to dilute their voting power and prevent them from determining the winner of those constituencies.

Gerrymandering to dilute the voting power of marginalized communities violates the Voting Rights Act of 1965, which Congress passed to implement the 15th Amendment to the US Constitution and combat racial discrimination in voting.

In this week’s Saturday seminar, scholars examine issues of partisan and racial redistricting, as well as potential regulatory avenues for reform.

  • What if courts stopped considering race when assessing whether states were diluting votes through gerrymandering? Anticipating that the United States Supreme Court may soon opt for a race-blind baseline, Jowei Chen of the University of Michigan and Nicholas O. Stephanopoulos of Harvard Law School address this issue in an article from Yale Law Journal using an algorithm to generate neighborhood maps. Chen and Stephanopoulos find that a race-blind redistricting process would create a baseline with far fewer precincts where minority voters can elect their chosen candidates. They warn that a race-blind standard would hurt plaintiffs who sue for greater representation commensurate with their share of the population.
  • Recent efforts to redraw congressional maps could be among the “most abused in US history,” some scholars warn. In a recent report published by the Brennan Center for Justice, Michael C. Li and several co-authors examine results from states that have already completed the redistricting process with 2020 census results. They argue that the most recent maps pose a problem because in some states Republicans have redrawn maps to suppress competition and are racially discriminatory. For example, in North Carolina, even if the Democrats get 52% of the vote, they could at most win 29% of the seats. Li and his co-authors urge Congress to address these concerns of racial and partisan discrimination by passing the Freedom to Vote Act: John R. Lewis before the 2022 midterms.
  • Redistricting practices at the local government level can also serve as a tool to maintain the political and racial status quo. In an article by Social problems, Robert Vargas of the University of Chicago, Christina Cano of CHANGE Illinois, Brian Fenaughty of Human Capital Research Corporation and Paola Del Toro of Princeton University analyzed the evolution of maps from 1830 to 2020 in Chicago, Milwaukee and St Louis to understand municipal redistricting practices. Vargas and his co-authors found evidence of “suppressive redistricting,” which lures districts to disenfranchise black populations who pose a perceived threat to political party leaders. Vargas and his co-authors recommend that policymakers provide communities with more opportunities to participate in the remapping process to help create fairer maps for marginalized people.
  • In an article from University of Pennsylvania Journal of Constitutional Law, Samuel Wang, Richard Ober, and Ben Williams of the Princeton Gerrymandering Project explore a relatively unused avenue for partisan gerrymandering reform: state courts and state constitutions. They outline three benefits of taking gerrymandering claims to state courts, avoiding referral to federal court, broadening the basis of legal provisions beyond the national constitution, allowing more room for interpretation in relation to how the Supreme Court interprets federal provisions. Wang, Ober and Williams suggest that reformers look to state Supreme Court precedents to explore how to advance gerrymandering claims.
  • Despite attacks on the right to vote during the COVID-19 pandemic, the courts have failed to intervene. In a recent article published in California Law Review of UC Berkeley Law School, Franita Tolson of USC Gould Law School argues that criticism of the courts as acting against the interests of democratic majorities ignores the failures of democratically elected bodies. Tolson argues that the problem with counter-majoritarianism is not judicial intervention but the structure of the political system. Tolson explains how the Electoral College favors the counter-majority and deepens racial divisions. Accordingly, Tolson advocates the use of judicial intervention until democratic majorities are responsible for the legislation of the land.
  • According to Travis Crum of Washington University at St. Louis School of Law, in an article to appear in Cornell Law Review. Crum explains that this gives state legislators far more power and discretion than they previously had. Crum suggests that this pattern of deregulation since 2010 has resulted from the United States Supreme Court’s willingness to refer political issues to other political branches for determination.

The Saturday Seminar is a weekly feature that aims to put into written form the type of content that would be conveyed in a live seminar involving regulatory experts. Every week, Regulatory Review publishes a brief overview of a selected regulatory topic and then summarizes recent research and academic writing on that topic.

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