Legality of Gerrymandering

By MAEVE SILK


          Gerrymandering is the process of drawing electoral district lines in order to gain unfair political advantage. Beginning in the post-Civil War era, illegal “packing” and “cracking” techniques were used in the South to limit the voting power of the black population.[1] The most recent cycle of redistricting was in 2010. According to a report published by the Center for American Progress last May, on average fifty-nine members of the U.S. House of Representatives would not have been elected based on natural state party identification in 2012, 2014, and 2016 election cycles; they only won because of gerrymandering. Those fifty-nine legislatures are equal to the voting representation of approximately forty-two million Americans.[2]

          According to Section 2 of the Voting Rights Act of 1965, which was amended in 1982, “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title.”[3]

          The Voting Rights Act, which was renewed on July 20, 2006, has been considered by many to be a direct opposition to gerrymandering, which often relies on the separation of different racial groups while redistricting in order to achieve political benefit. For example, after the 1990 census and subsequent redistricting, several district delineations were denied by the Supreme Court for being racially discriminatory. In ​Thornburg v. Gingles (​1986), the court unanimously decided that redistricting plans in North Carolina that strategically gave white citizens the ability to overpower the votes of citizens of color were not permissible.[4] Following this decision, in ​Bush v. Vera ​(1996), redistricting plans in Texas to create three new districts, limiting African-American residents’ ability to participate in voting and successfully elect their chosen candidates, were ruled as a violation of the Voting Rights Act.[5] In similar race-based gerrymandering cases, such as ​Shaw v. Reno ​(1993) and ​Miller v. Johnson (​1995), the Supreme Court has reaffirmed that any redistricting plans that can be proven to be racially discriminatory violate the Voting Rights Act.

          Gerrymandering is sometimes politically motivated, rather than solely racially motivated. Baker v. Carr​ (1962) alleged that Tennessee did not follow existing legislation in its appointment practices for its General Assembly. By ruling on this case, the Supreme Court demonstrated that it was in its jurisdiction to rule on cases regarding legislative apportionment.[6] A similar conclusion was found in ​Davis v. Bandemer (1986), a case which alleged that Democrats in Indiana were being unfairly disadvantaged through a proposed redistricting plan. Although the Supreme Court did not ultimately find that a violation of voting rights had occurred through redistricting in the case, it did conclude that claims of gerrymandering were justiciable through the Equal Protection Clause of the 14th Amendment.[7]

          In some cases, gerrymandering can be thought to violate the 14th Amendment by interfering with a certain group of individuals’ ability to vote, but it can be difficult to prove. In spite of these considerations, the Supreme Court has also found many gerrymandering cases to be outside of its jurisdiction for similar reasons. For instance, in ​Vieth v. Jubelirer ​(2004), the court considered whether Republican gerrymandering in Pennsylvania violated the “one-person, one-vote” concept of Article 1, Section 2 of the Constitution. While the District Court found that the redistricting plans did breach Article 1, Section 2, the Supreme Court decided that the case was non-justiciable.[8] While the Supreme Court recently heard another gerrymandering case, Rucho v. Common Cause​ (2019), ultimately, there has not been a clear decision on whether or not the issue of gerrymandering as a whole falls under the jurisdiction of the Supreme Court; it is largely dependent on a case-by-case basis.

          At the state level of legislature, there have been many different responses to gerrymandering. Every state has its own unique rules for district formation. Many states, but not all, require that the district be compact and contiguous, and that district lines not cross political subdivisions or break apart neighborhoods.[9] A few states, such as Michigan and Colorado, have added measures to their constitutions to help limit partisan gerrymandering, but most states have done little to regulate the practice.[10] In response to this issue, House Democrats proposed a new bill in 2019, the For the People Act (H.R.1), which included regulations requiring states to inhibit gerrymandering through methods like using an independent body for redistricting. H.R.1 passed in the House, but not in the Senate.[11]

          The Center for American Progress recommends a redrawing of lines by an unbiased, independent entity in order to create “voter-determined districts” based on using districts to fairly represent the division of state voters regarding major parties.[12] [xvi] Although this would be difficult to perfectly match the districts and voting preferences of the state, modern computer mapping systems make this a much more realistic option than in the past. Ultimately, the core of our democracy relies on people’s ability to vote for representation. The process of gerrymandering threatens that tenet by undermining the value of certain votes. With the 2020 election cycle approaching and the next redistricting scheduled to take place after the 2020 census, it is important for Americans to consider what gerrymandering can mean for their votes.


[1] E. Engstrom, ​Gerrymandering and the Evolution of American Politics​, University of Michigan Press (2013),  https://www.jstor.org/stable/j.ctt1gk086k.4?seq=1#metadata_info_tab_contents.

[2] Alex Tausanovitch​., The Impact of Partisan Gerrymandering​, Center For American Progress (October 1, 2019), https://www.americanprogress.org/issues/democracy/news/2019/10/01/475166/impact-partisan-g errymandering/.

[3] Voting Rights Act of 1965, 52 U.S.C ​§ 2 (2015).

[4]Thornburg v. Gingles,​ 478 U.S. 30 (1986).

[5]Bush v. Vera, 517 U.S. 952 (1996).

[6] Baker v. Carr, 369 U.S. 186 (1962).

[7]Davis v. Bandemer​, 478 U.S. 109 (1986).

[8] Vieth v. Jubelirer, 541 U.S. 267 (2004).

[9] N.A, Redistricting Criteria, ​National Conference of State Legislatures, (April 23, 2019),  https://www.ncsl.org/research/redistricting/redistricting-criteria.aspx

[10] ​Jake Neher​, ​Cheyna Roth​, ​Here’s Where Michigan’s Redistricting Effort Stands After SCOTUS Gerrymandering Ruling,​ WDET, (July 1, 2019), https://wdet.org/posts/2019/07/01/88365-heres-where-michigans-redistricting-effort-stands-after- scotus-gerrymandering-ruling/

[11]Michael Li, Five Ways H.R. 1 Would Transform Redistricting, Brennan Center, (June 19, 2019), https://www.brennancenter.org/our-work/analysis-opinion/five-ways-hr-1-would-transform-redistricting.

[12] Alex Tausanovitch​, ​supra n​ote 2.

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