With the run-up to this year's mid-term elections around the corner, the debate about the constitutionality, or basic fairness, of partisan gerrymandering of electoral district has resurfaced with intensity. The practice of gerrymandering refers to drawing the boundaries of electoral districts in a way that gives one party an unfair advantage over its rivals. Every ten years, beginning in 1790, the U.S. government has taken a census, an official count of its population. The Constitution requires this to be done to determine how many seats in the House of Representatives each state should have. Federal law requires a state to redraw the map of their congressional districts when they gain or lose as a result of a reapportionment of districts to that state. In 65% of the states legislatures are charged with the primary responsibility to create this redistricting plan. Much of the time oversight by partisan majorities has led to gerrymandered boundaries intended to help enhance the electoral dominance of the party in charge of the process.
The temptation to take advantage of this process is not new. Politicians have been redrawing district lines for their own advantage since the days of the founding fathers when Patrick Henry gerrymandered a Virginia district to try to keep James Madison out of Congress. The term "gerrymandering" was first used in 1812 by the Boston Gazette, after then Governor Elbridge Gerry signed a bill redistricting the Massachusetts state senate election districts in such a way as to benefit his Democratic-Republican Party. One of the mapped contorted districts to the north of Boston was said to have resembled the shape of a salamander. The Gazette blended that observation with the governor's last name to create the word "gerrymander," which has stuck ever since. Although the Federalists handily won the House and the governorship that year, as a direct result of Governor Gerry's maneuvering, the state Senate remained solidly in Democratic-Republican hands.
As technology improved our ability to use more and more sophisticated analytical tools, the gerrymander process has become more effective, and, after the 2010 census, increasingly more blatant. After Republicans suffered sweeping losses to Barack Obama in 2008, one of their strategists, Chris Jankowski, hatched a scheme to target the redistricting process following the outcome of the 2010 census. The project as dubbed "Operation Redmap," "Redistricting Majority Project." Jankowski targeted states in which legislatures would be in charge of redrawing district boundaries, flip as many chambers as possible, take control of the process, and redraw the lines to effectively consolidate Republican gains. The party invested $30 million in this project, and it has been exceedingly successful in retaking control of the House of Representatives.
Mid-2017, using a new statistical method of calculating partisan advantages designed to detect potential political gerrymandering, the Associate Press scrutinized the outcome of all 435 U.S. House races in the 2016 election. The analysis concluded, among other things, that Republicans won as many as 22 additional U.S. House seats over what would normally have been expected, based on the average vote hare in congressional districts across the country. Traditional battlegrounds such as Michigan, North Carolina, Pennsylvania, Wisconsin, Florida and Virginia were among those showing significant Republican advantages. All had districts drawn up by Republicans following the 2010 census. (David Lieb, "AP analysis shows gerrymandering benefitted GOP in 216," June 25, 2017). A separate analysis by Princeton University concurred that Republican advantages in some states were "no fluke."
Our next census is scheduled for 2020. I for no other reason, partisans on all sides have a significant stake in the outcomes of the 2018 mid-term elections. The party ending up dominating the majority of state legislatures will take charge of redrawing the electoral district maps for the subsequent ten years. It is therefore no coincidence that multiple challenges contesting district boundaries that could help determine electoral results this year have been challenged in court, ultimately ending up in the U.S. Supreme Court. While the court has consistently found certain types of racial gerrymandering to be illegal, it has had a more difficult time applying similar rules to partisan gerrymandering. (Lois Beckett, "Is Partisan Gerrymandering Unconstitutional?," Pro Publica, Nov. 7, 20111). Thus far the Supreme Court has agreed to take up partisan gerrymandering appeals from Maryland, Wisconsin and North Carolina, cases in which lower courts have judged that their legislative district plans violated the Equal Protection Clause of the Fourteenth Amendment of our Constitution. In the North Carolina case, aa three judge panel pointed out that the legislator who drew the map, Representative David Lewis, blatantly acknowledged: "I think electing Republicans is better than electing Democrats. So, I drew this map to help foster what I think is best for the country."
The Brennan Center for Justice at the New York University School of Law, after analyzing the 2012 an 2016 congressional elections, reported that there is "clear evidence that gerrymandering is distorting the nation's congressional maps, posing a threat to democracy." Gerrymandering has become so aggressive, extreme, and effective, that there is an urgent need for the Supreme Court to set boundaries and finally establish a legal standard.
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