When we vote, it’s usually for several offices at the same time: president, member of Congress, and so on. But why can you vote for one congressman or state senator but not for any others? How is it decided?
This process is called redistricting. By definition, redistricting is when a state or town is divided so that legislators can be elected from smaller areas. Redistricting lets us live closer to our representatives, and lets each legislator represent a specific area. But states can manipulate this process to aid the party in power or reduce the influence of racial minority groups. Doing this is called gerrymandering. Have questions about redistricting and gerrymandering? Check out this Q&A.
Q: What is redistricting and how does it happen?
A: The U.S. Constitution requires that we count everyone in the country every ten years. Once completed, states use this counting to draw their their Congressional and state legislative districts. Each state has its own redistricting process requirements.
Occasionally, state actors will choose to re-draw the district lines mid-decade, to draw more favorable lines for a certain party or constituency. This happened in Texas in 2003, for example, when Republicans took over the state legislature. A state may also be required to redraw the lines if a court declares the original maps to be unconstitutional.
In most states, the legislature itself conducts the redistricting process, with the help of expert map-drawers. In many of these states, these maps are subject to a gubernatorial veto. However, in some states, independent commissions do the work.
Q: Are there constitutional limits on how districts maps can be drawn?
A: Yes, there are.
First, the Constitution’s one-person, one-vote rule requires that states draw districts with roughly equal populations. Because the Constitution says that U.S. House members must be elected by “the People,” congressional districts must have populations as close to equal as possible. State legislative districts, meanwhile, may vary by up to 10% in population.
Second, most state constitutions require districts to comply with traditional redistricting principles––the criteria by which states have historically drawn maps. These include: (1) compactness, preventing the districts from being too spread out; (2) contiguity, keeping the entire district connected; (3) preserving subdivision boundaries, by not placing different parts of towns or counties in different districts; (4) protecting incumbents by ensuring that the legislature doesn’t draw incumbents’ houses out of their own districts; and (5) preserving communities of interest, whether demographic, political, or social.
Third, in some instances, the Voting Rights Act requires states to create districts in which members of a racial minority group make up a majority. This is only required if four criteria are met. First, enough members of that minority group must live in an area to make up a majority of a compact single-member district. Second, voters of the minority group must tend to vote for the same candidates. Third, white voters must consistently vote as a bloc to defeat the preferred candidate of the minority voters. Then, considering all the facts, the members of the racial minority group must not have an equal opportunity to elect their preferred candidates.
And fourth, states cannot engage in unconstitutional gerrymandering. This is discussed below.
Q: Wait, why do we have redistricting in the first place?
A: The U.S. Constitution requires that members of the House of Representatives must be elected “by the People of the several States,” but doesn’t say how to elect U.S. representatives within each state. And the Constitution has no requirements at all regarding state legislators.
States could even choose to elect all of their legislators at large, so that all the state’s voters would vote for all of the seats. In fact, many states did just this in the early days of the Republic. As late as the 1960s, we elected nearly half of state legislators elected at large or in multimember districts.
But Congress has required since 1842 that states elected members of the House in districts, with one member representing each district. Meanwhile, white voters used at-large state legislative elections to outvote minority voters for every seat. So, in the 1960s and 1970s, plaintiffs began to strike down at-large and multimember districts under the Voting Rights Act. The vast majority of local, state, and federal legislative elections now take place in single-member districts.
Q: What is gerrymandering and when is it unconstitutional?
A: The word gerrymander itself refers to Elbridge Gerry, the Democratic-Republican governor of Massachusetts. In 1812, Gerry drew the state’s senate districts to harm the Federalist Party. (One district looked like a salamander––hence the name.) Today, the term refers to manipulating district lines to harm either (1) a racial minority group or (2) another political party.
Racial gerrymandering occurs when states move a large number of voters into or out of a particular district because of their race. Today, this often happens when a legislature “packs” minority voters into urban districts to give Republicans an advantage. (Many minority voters tend to vote for Democrats.) To prove a racial gerrymandering claim, you must show that race was the legislators’ primary (or “predominant”) reason for drawing the lines the way they did, and that this motive beat out the traditional redistricting principles that normally guide the process. If the challengers can show this, then the state has to show that it acted in service of some compelling purpose and that it changed its district lines as little as possible to achieve that purpose. This is a difficult test for the state to meet, so many racial gerrymandering claims succeed if the challengers can meet their initial burden.
Partisan gerrymandering, on the other hand, occurs when legislators draws districts to make it more difficult for the other party to win seats. The Supreme Court has said that extreme partisan gerrymandering is “incompatible with democratic principles,” and that an “excessive injection of politics” into districting is illegal. For three decades, however, the Court has struggled with the question of how to tell when partisanship has gone too far––when normal politics crosses the line into gerrymandering. Several Justices have argued that this is not an issue that the courts can decide. To them, curbing partisan gerrymandering is the job of the political branches. A majority of the Court, however, has left the door open to legal challenges. A case out of Wisconsin, discussed below, may finally provide answers to the Court’s line-drawing question.
Q: Why does gerrymandering matter?
A: Gerrymandering is bad both for those directly affected and for the country as a whole.
Racial gerrymanders, in particular, can be personally harmful. They classify voters by race and then move the district lines around because of race. As the Supreme Court has put it, moving voters into districts this way assumes that people of the same race “think alike, share the same political interests, and will prefer the same candidates at the polls.” This is unconstitutional racial gerrymandering.
Gerrymandering also dilutes specific individual’s votes. Legislatures do this by “packing” or “cracking” certain groups of people into districts. Individuals are “packed” into a district when many more people of a certain party or race are put into a district together than is actually needed to carry the district. Meanwhile, individuals are “cracked” into a district if only a few other members of that certain party or race are put into that district. Packing and cracking effectively makes certain individuals’ votes worth less and have less of an impact on the outcome of the election.
Further, while packing and cracking opponent voters, the party in control can effectively spread out its voters to win more districts without winning more votes.
The central problem is that gerrymandering allows politicians to choose their voters, not the other way around. This makes it so that lawmakers don’t have to listen to some of the people they’re supposed to represent. The Supreme Court has warned that officials elected from racially gerrymandered districts may only serve people of one race, rather than everyone in the district. This is also a problem for partisan gerrymandering. After all, if states draw districts to favor just one party, elected officials choose to serve only people from that party.
Further, gerrymandering makes legislatures as a whole more skewed. Democratic-favored gerrymanders lead to legislatures more liberal than the voters, and Republican-favored gerrymanders lead to legislatures more conservative than the voters. These lawmakers may then govern based on what their party wants, instead of thinking about what the people as a whole want and need.
Q: Which states have the worst gerrymanders?
A: Because racial gerrymandering is clearly illegal, states have become (somewhat) more wary about using race as a factor when drawing maps. However, the Supreme Court has recently heard cases from Virginia, North Carolina, and Alabama––and, in all three cases, determined that the challengers’ racial gerrymandering claims could go forward.
As for partisan gerrymandering, a recent report by the Brennan Center for Justice found that most of the bias in U.S. House districts comes from seven states: Michigan, North Carolina, Pennsylvania, Florida, Ohio, Texas, and Virginia. All were redistricted by Republican legislatures. However, where Democrats controlled the process, the maps were also skewed––though though not quite as badly as in Republican-controlled states. Massachusetts and Maryland are two of the worst Democratic offenders for congressional districts. The Democrats also gerrymandered the state legislative and congressional maps in Illinois.
Q: What can we do about gerrymandering?
A: There are a few ways to deal with the problem of gerrymandering.
Independent redistricting commissions: A number of states have decided to take redistricting away from the politicians. They’ve adopted nonpartisan, independent redistricting commissions. Studies show that the maps drawn by independent commissions are much less likely to skew toward one party, are more competitive, and more fairly represent the will of the people. Learn more about redistricting in your state and take action.
Spreading the word: The best, most direct thing you can do to help stop gerrymandering is to get other people to care about it, too. Left to their own devices, politicians would prefer to keep drawing districts to help themselves win. They won’t vote against their own self-interest unless they know that people will hold them to account otherwise. But many people don’t know about the issue of gerrymandering. This is hardly surprising, since cable news channels only aired five segments on gerrymandering between them over the past year!
So post about gerrymandering on social media. Use the #fairmaps hashtag on Twitter to advocate for an end to partisan gerrymandering. Here are a few examples of what you could say–consider tying these to events in the news, and “quote tweet” a news story so you can include the link to that story without using up your 140 characters:
- States must stop racial #gerrymandering. They pack minority populations into fewer districts to dilute their votes. We need #fairmaps!
- Everyone should pay attention to the partisan #gerrymandering case at #SCOTUS that could finally give us #fairmaps! http://www.campaignlegalcenter.org/case/gill-v-whitford
- 13 states already use independent #redistricting commissions to draw #fairmaps for state leg districts & 7 for Congress. [State Abbreviation] should be next!
Then, go beyond social media. Talk to your friends and family about the issue. If you want to flex your civic muscles, write to your legislators and your governor about gerrymandering. Find out where they stand, and then hold them accountable. Because ultimately, we’re all responsible for our democracy.