Gerrymandering Voting Districts for Partisan Advantage

This political cartoon was drawn in 1812 in reaction to the state senate election district of South Essex created by the Massachusetts legislature to favor the candidates of Governor Elbridge Gerry over the Federalists. The term “gerrymander” combines Gerry’s name with the shape of a “salamander.”

In 2004, Justice Antonin Scalia concluded that political gerrymandering claims are nonjusticiable, because “no judicially discernible and manageable standards for adjudicating such claims exist.” Vieth v. Jubelirer, 541 U.S. 267, 281 (2004). Yet lawsuits are still filed, “[l]ike a periodic comet,” when legislatures redraw their voting districts every ten years based on new population data from the U.S. Census. Radogno v. Illinois State Bd. of Elections, No. 1:11-CV-04884 (N.D. Ill. Oct. 21, 2011). Many cases allege racially discriminatory voting district maps intended to minimize the effect of minority votes, but in recent years courts have also decided claims of political gerrymandering. They have employed a three-part test for determining whether a redistricting map violates the Constitution, which requires that a plaintiff demonstrate that the redistricting scheme “(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” Whitford v. Gill, 15-cv-421-bbca (W.D. Wis. Nov. 21, 2016).

In Whitford, a redistricting plan enacted by the Republican-controlled Wisconsin Legislature in 2011 was challenged as an unconstitutional partisan gerrymander enacted to systematically dilute the voting strength of Democratic voters statewide. A three-judge panel found the plan was unconstitutional under the three-part test, violating both the Equal Protection Clause of the Fourteenth Amendment and the First Amendment right to freedom of association. Id.

Nicholas Stephanopoulos, a professor at the University of Chicago law school, who argued the Whitford case in court, commented:

“One of the worst aspects of our democracy has been the presence of partisan gerrymandering. . . If the supreme court upholds this decision, there could be very positive and dramatic consequences in states all over the country where gerrymandering has happened.” David Smith, Wisconsin Rules GOP Gerrymandering Violates Democrats’ Rights, The Guardian, Nov. 21, 2016.

Partisan gerrymandering claims have also been instituted in Maryland (Benisek v. Lamone, No.  1:13–cv–03233–JKB (D. Md. March 6, 2017) (redistricting map could be found to be an unconstitutional partisan gerrymander if plaintiffs satisfied the three-part test)) and in North Carolina (Harris v. McCrory, No. 1:13-cv-949 (M.D.N.C. June 2, 2016) (after redistricting map was found to be racially gerrymandered, and was redrawn by the legislature, it was held to be politically gerrymandered)). Two other North Carolina cases allege that, in drawing district lines, the Republican-controlled North Carolina General Assembly violated the U.S. Constitution by improperly relying on “political data,” reflecting whether people had voted in favor of Democratic or Republican candidates for certain statewide elections, to draw districts intended to maximize the number of Republican members of North Carolina’s congressional delegation. Trial of the consolidated cases is scheduled for June 26, 2017. See League of Women Voters v. Rucho and Common Cause v. Rucho, Nos. 1:16–CV–1026 & 1:16–CV–1164  (M.D.N.C. March 3, 2017) (memorandum opinion denying defendants’ motions to dismiss).

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