{"id":609,"date":"2021-10-14T13:06:05","date_gmt":"2021-10-14T13:06:05","guid":{"rendered":"https:\/\/www.commoncause.org\/north-carolina\/articles\/building-democracy-2-0-the-uses-and-abuses-of-redistricting-in-american-democracy\/"},"modified":"2021-10-14T13:06:05","modified_gmt":"2021-10-14T13:06:05","slug":"xay-dung-nen-dan-chu-2-0-viec-su-dung-va-lam-dung-viec-phan-chia-lai-khu-vuc-bau-cu-trong-nen-dan-chu-my","status":"publish","type":"article","link":"https:\/\/www.commoncause.org\/north-carolina\/vi\/articles\/building-democracy-2-0-the-uses-and-abuses-of-redistricting-in-american-democracy\/","title":{"rendered":"X\u00e2y d\u1ef1ng n\u1ec1n d\u00e2n ch\u1ee7 2.0: Vi\u1ec7c s\u1eed d\u1ee5ng v\u00e0 l\u1ea1m d\u1ee5ng vi\u1ec7c ph\u00e2n chia l\u1ea1i khu v\u1ef1c b\u1ea7u c\u1eed trong n\u1ec1n d\u00e2n ch\u1ee7 Hoa K\u1ef3"},"template":"","class_list":["post-609","article","type-article","status-publish","hentry","article_type-blog-post"],"acf":{"details":{"summary":"This is part 13 in a multi-part series examining ways to build an inclusive democracy for the 21st century.","featured_image":null,"article_type":162,"authors":["{\"site_id\":\"68\",\"post_type\":\"person\",\"post_id\":555}"],"related_issues":[62,417],"related_work":false,"location":null},"sidebar":{"helper_enable_sidebar":false,"helper_media_contact":{"heading":"Media Contact","manually_enter_person":false,"person":null,"name":"","role":"","phone":"","email":""},"helper_links_downloads":{"heading":"Links & Downloads","links":null}},"page_layout":[{"acf_fc_layout":"layout_wysiwyg","_acfe_flexible_toggle":null,"component_wysiwyg":{"content":"Introduction<\/strong>\r\n\r\nThis inquiry into democracy began as an effort to understand and respond to the ills of gerrymandering.\u00a0 The practice of manipulating districts to advantage or disadvantage a political party at election time goes back to the founding of America.\u00a0 It has taken different forms over time, including at-large voting, malapportionment and gerrymandering.\u00a0 These districting strategies are a natural feature of American democracy for two reasons:\u00a0 first, the U.S. Constitution provides wide latitude to states and Congress to manipulate districts when adjusting them to accommodate population changes and second, our existing winner-take-all electoral system leads to polarization, which provides a strong motive for such manipulation.\r\n\r\nThe responses to at-large voting and malapportionment show the potential for reform.\u00a0 Congress banned at-large voting in the 19th<\/sup> century, and the U.S. Supreme Court banned malapportionment in the 20th<\/sup> century.\u00a0 Unfortunately, the practice of gerrymandering has only grown more insidious in the 21st<\/sup> century.\u00a0 Sophisticated software gives map drawers the ability to produce ever more impregnable districts, and the dwindling number of swing voters ensures greater durability of partisan maps.\u00a0 Moreover, the extreme partisan make-up of districts encourages ever greater polarization by forcing candidates to appeal to the most extreme primary voters, giving these voters the power to decide who represents a district in the general election.\r\n\r\nThe U.S. Census Bureau recently released the 2020 census numbers.\u00a0 Based on that data, state legislatures are drawing new districts.\u00a0 These maps will determine the balance of power at the state and federal level for the next decade.\u00a0 This essay reviews the origins and evolving patterns of districting since the nation\u2019s founding.\u00a0 It will show that gerrymandering, along with other strategic manipulations of the redistricting process, is a natural feature of the winner-take-all, majority electoral system employed in the United States. \u00a0Due to the competitiveness of both parties in this state, North Carolina is often the epicenter of this practice.\u00a0 North Carolina has endured over 40 judicial interventions since 1980.\u00a0 The state\u2019s logo should read \u201cFirst in Gerrymandering\u201d rather than \u201cFirst in Flight.\u201d\r\n\r\nBefore embarking on this dive into redistricting and the practice of gerrymandering, it is important to take a step back.\u00a0 Why do many find gerrymandering so deeply offensive?\u00a0 Of course, the chief critics stoking the fire against gerrymandering come from the party on the short end of the stick \u2013 a party that would surely use the same weapon if in a position to do so.\u00a0 But beyond the self-serving reasons to decry this practice, gerrymandering violates a fundamental democratic principle.\u00a0 It dilutes votes.\u00a0 It makes one person\u2019s voice in the form of a vote more powerful than another\u2019s by manipulating districts.\u00a0 It puts a hand on the scale of elections, and in many cases, predetermines the outcome.\r\n\r\nBeginning in the 1960s, courts have increasingly intervened to prevent such manipulation.\u00a0 Judges understand these practices are an affront to democracy.\u00a0 However, they have struggled with coherent constitutional theories and manageable standards.\u00a0 Given the broad license the U.S. Constitution provides states and Congress to shape the electoral system, courts can only go so far.\u00a0 They have acknowledged proportional voting would solve the problem of vote dilution, but the Constitution does not mandate such a system.\u00a0 Consequently, courts have devised standards to reign in the worst abuses within the winner-take-all system currently employed in the U.S. with limited success.\r\n\r\nDistricting In Early American History<\/strong>\r\n\r\nGerrymandering flows from opportunity and motivation.\u00a0 The U.S. Constitution provides the opportunity because it gives state politicians authority to decide how voters will choose the representatives allotted to their state and that number changes periodically.\u00a0 Article I, Section 2 of the U.S. Constitution states:\r\n

Representatives \u2026 shall be apportioned among the several States which may be included within this Union, according to their respective numbers\u2026.\u00a0 The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.\u00a0 The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at least one Representative\u2026.<\/p>\r\nThis section requires Congress to adjust the number of districts allotted to states every 10 years based on population changes.\u00a0 As noted, states are currently drawing new districts to accommodate the recent census data.\u00a0 For example, North Carolina picked up its 14th<\/sup> congressional seat while New York lost one seat based on population shifts occurring between 2010 and 2020.\r\n\r\nArticle I Section 4 goes on to say:\u00a0 \u201cThe Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.\u201d Known as the Elections Clause, this section gives wide birth to state legislatures and Congress, if it chooses to act, to determine how districts should be formulated based on the number of seats apportioned to a state. \u00a0In other words, once a state knows how many congressional seats it has based on the decennial census, its legislature has near carte blanche in creating an electoral system to elect these representatives.\u00a0 In particular, the Constitution says nothing about geographically defined or single member districts, winner-take-all voting or proportional voting.\r\n\r\nIf the Constitution created the opportunity to manipulate districts, partisanship serves as its motivation.\u00a0 Early on, state legislatures took a variety of approaches to redistrict in a way that favored those in power.\u00a0 In Partisan Gerrymandering and the Construction of American Democracy<\/u>, Erik Engstrom provides a masterful account of this process. \u00a0For three of the original 13 states, there was only one representative so no opportunity to gerrymander existed.\u00a0 Candidates simply ran in one statewide district.\u00a0 In the remainder of states, however, legislatures took two approaches.\u00a0 Parties in some states used the \u201cgeneral ticket\u201d or at-large elections to their advantage.\u00a0 In these states, all candidates ran statewide on one ticket and voters had one vote for each seat.\u00a0 Therefore, overall support for a party at the state level tended to be reflected in all races as shown in the last essay.\u00a0 For example, Federalists in the Pennsylvania legislature used the \u201cgeneral ticket\u201d in the first federal elections, and their preferred candidates won every single seat by the same margin, overcoming anti-Federalist strongholds in certain parts of the state.\r\n\r\nThe remainder of states created geographic districts.\u00a0 From the start, politicians could not resist the urge to manipulate these districts for partisan gain.\u00a0 James Madison was one of the first targets of gerrymandering when Patrick Henry orchestrated the drawing of a U.S. House district to favor James Monroe.\u00a0Nevertheless, Madison eked out a victory, in part by promising to back a Bill of Rights he had previously said was unnecessary when drafting the Constitution.\r\n\r\n\"\"Of course, the most notorious example of manipulation came from a senate map in the State of Massachusetts signed into law by Governor Elbridge Gerry in 1812. \u00a0Historians argue over Gerry\u2019s role in creating the map, but he clearly benefited from it because it artificially depressed the electoral chances of Federalist legislative candidates whom he opposed.\u00a0 Consequently, he lives in infamy as the father of \u201cgerrymandering,\u201d based on a particular district\u2019s salamander-like shape.\u00a0 At the time, the Boston Gazette editorial opined:\r\n

Again, behold and shudder at the exhibition of this terrific dragon, brought forth to swallow and devour your Liberties and equal Rights.\u00a0 Unholy party spirit and inordinate love of power gave it birth\u2026.\u00a0 This law inflicted a grievous wound on the Constitution \u2013 it in fact subverts and changes our Form of Government which ceases to be Republican \u2026 and silences and stifles the voice of the majority.<\/p>\r\nThese early years demonstrate that partisans used various strategies \u2013 not just gerrymandering -- to game the system.\u00a0 Both the general ticket and geographic districts served as effective tools for such manipulation.\u00a0 In fact, the demise of the general ticket in federal elections resulted, in part, from an effort to manipulate the electoral system for partisan gain.\u00a0 Engstrom describes passage of the Apportionment Act of 1842, which mandated single member districts.\u00a0 That act provided, \u201cThat in every case where a state is entitled to more than one representative, the number to which each state shall be entitled under apportionment shall be elected by districts composed of contiguous territory equal in number to the number of representatives to which said state may be entitled\u2026.\u201d \u00a0Engstrom concludes that Whigs backed geographic districts because the party was weaker in the states gaining seats through apportionment that used the general ticket.\u00a0 District seats would help the Whig Party stem its losses in those states at the midterm election by ensuring its candidates could pick up a few seats in geographic areas where the Party had some level of concentrated support.\u00a0 In other words, partisans eliminated the general ticket as a defensive strategy to maintain an edge electorally.\r\n\r\nWith the two-party system in full force and at-large districts prohibited by law, gerrymandering of congressional districts became standard practice in the second half of the 19th<\/sup> century.\u00a0 Legislatures gerrymandered districts in two steps.\u00a0 First, they packed partisans into one or more districts in order to increase their chances in the remaining districts.\u00a0 Second, they ensured their party loyalists comprised a slight majority in multiple districts in order to win as many as possible.\u00a0 They did this by analyzing the election results at the county level since most congressional districts followed county boundaries.\u00a0 Although much cruder than today\u2019s sophisticated data, it still proved effective. \u00a0For example, Indiana Democrats in 1852 won 91% of the state\u2019s congressional seats (10 out of 11) even though Democrats only won 54% of the statewide vote.\r\n\r\nThese \u201cefficient gerrymanders\u201d ultimately led to massive swings in electoral outcomes.\u00a0 When Democrats or Republicans drew districts, they sought to maximize the number of wins with the least margin needed for victory \u2013 for example, ensuring their partisans comprised at least 55% of a district.\u00a0 Such efficient gerrymanders allowed small shifts in public opinion to produce devastating results.\u00a0 For example, Republicans picked up 64 House seats in 1872 after generating maps based on an efficient gerrymander.\u00a0 However, in the next election, Republicans gave back 94 seats, one of the largest swings in U.S. history.\u00a0 In 1894, Democrats lost a staggering 114 House seats after deploying efficient gerrymanders following the 1890 census.\u00a0 The Panic of 1893 caused enough of a national shift to create a landslide in Congress.\u00a0 Republicans dominated national politics for the next 16 years.\u00a0 These episodes reflect efforts by politicians to manipulate the districting process with the tools and knowledge at hand when the Constitution provided little to no guardrails.\r\n\r\nThe Era of Malapportionment<\/strong>\r\n\r\nAs noted previously, divisiveness, dysfunction, and inequality reached a high point at the end of the 19th<\/sup> century.\u00a0 The Progressive Movement ushered in a period of relative political stability.\u00a0 The hyper-partisan gerrymandering of the 19th<\/sup> century came to an end.\u00a0 A new form of electoral manipulation took hold known as malapportionment.\u00a0 In effect, legislators stopped redistricting for decades.\u00a0 By failing to adjust maps based on population shifts, districts had widely divergent ratios between members and population.\u00a0 That meant the number of voters in one congressional district could exceed the number in another by hundreds of thousands.\u00a0 Taken to an extreme, one party could represent multiple small districts while another party could represent one large district, diluting the political power of that party.\r\n\r\nHowever, political motivations changed in the first half of the 20th<\/sup> century.\u00a0 With the weakening of political parties and decline in polarization, a single party came to dominate most state legislatures.\u00a0 Republican delegations tended to control states in the North and West while Democratic delegations controlled Southern states.\u00a0 Without the same motivation to manipulate district boundaries to gain seats, legislators tended to protect incumbents, and incumbents do not like their constituents to change. \u00a0Consequently, legislators redistricted less often.\r\n\r\nBetween 1840 and 1900, at least one state redistricted every year except for two.\u00a0 In contrast, states rarely redistricted in the first half of the 20th<\/sup> century. \u00a0For example, Illinois redistricted in 1900 and not again until 1948.\u00a0 Connecticut allowed 50 years to pass between its redistricting plan in 1912 and 1962.\u00a0 Party competition became nonexistent in the South, and many states there allowed districts to remain the same decade after decade.\u00a0 At the beginning of the 20th<\/sup> century, the average deviation between districts in a state was about 1.5 based on population.\u00a0 By the early 1960s, it reached 2.0 so that the largest district within a state was on average twice as large as the smallest district.\u00a0 The average masks many extreme examples of malapportionment.\u00a0 For example, Michigan had one district with 802,994 people and another with only 177,341.\r\n\r\nMalapportionment gave rural interests greater representation and hence political power.\u00a0 As the number working in agriculture dwindled and people moved to cities, urban districts far exceeded rural districts in population.\u00a0 Demographic tensions bubbled over in 1920, the only time in American history when Congress failed to pass a reapportionment act.\u00a0 The 1920 census confirmed the growth of metropolitan areas, marking the first time the urban population surpassed rural areas.\u00a0 In the face of losing seats, rural states blocked passage of the apportionment act so that districts remained unchanged in nearly every state for 20 years.\u00a0 Coupled with seniority rules in place at the time, Congressional incumbents, particularly those in the South, remained in safe seats for decades and gained considerable power in government.\u00a0 Not surprisingly, agricultural subsidies increased relative to federal spending in urban areas.\u00a0 Further, malapportionment tilted national politics to the right by magnifying the representation of more socially conservative rural interests.\r\n\r\nIn sum, malapportionment, like gerrymandering and general ticket voting, manipulated the electoral system for political purposes.\u00a0 All of these techniques undercut fundamental democratic principles.\u00a0 By distorting the voice of the electorate, these strategies created an unlevel playing field.\u00a0 Conflicts that required resolution through democratic means (i.e., fair elections) did not occur because elections were rigged for one side.\u00a0 The collective mind of the electorate had to pass through a filter that obscured the will of the people.\u00a0 When one person\u2019s vote counts more than another\u2019s, the function of democracy as a force for social cohesion and strength is diminished.\u00a0 Legal theorists began to recognize this fact.\r\n\r\nOne Person, One Vote <\/strong>\r\n\r\nUltimately, the courts intervened to stop malapportionment.\u00a0 This did not happen overnight.\u00a0 The first shot across the bow came in 1946 with Colegrove v. Green<\/u>, a decision by the U.S. Supreme Court over Congressional districts in Illinois.\u00a0 The last time lawmakers had drawn districts in Illinois was 1901.\u00a0 At the time, districts ranged in size from 112,116 to 914,000 people.\u00a0 Despite this gross disparity, the Court refrained from ruling them unconstitutional, citing Article I, Section 4 of the Constitution, which gives authority to the states and Congress to prescribe \u201cthe Times, Places and Manner of holding Elections.\u201d\u00a0 Justice Felix Frankfurter wrote the decision, declaring:\r\n

It is hostile to a democratic system to involve the judiciary in the politics of the people.\u00a0 And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law\u2026.\u00a0 The one stark fact that emerges from a study of the history of Congressional apportionment is its embroilment in politics, in the sense of party contests and party interests\u2026.\u00a0 Courts ought not to enter this political thicket<\/u>. [emphasis added]<\/p>\r\nRestraint by the Court in deciding political questions has remained a theme in redistricting decisions to this day.\r\n\r\n[caption id=\"attachment_9447\" align=\"alignright\" width=\"400\"]\"\" Justice Hugo Black<\/em>[\/caption]\r\n\r\nJustice Hugo Black\u2019s dissent in Colegrove<\/u> established the counterpoint to Frankfurter\u2019s opinion, and Black\u2019s thesis would gain momentum over time.\u00a0 Black saw the right to vote and the right to have one\u2019s vote counted, which is contained in Article I of the Constitution, as clearly implying \u201cthe policy that state election systems \u2026 be designed to give approximately equal weight to each vote cast.\u201d \u00a0The concept that each vote should be \u201cequally effective\u201d has far reaching implications.\u00a0 Black concluded that Article I guarantees the right for \u201call groups, classes, and individuals [to] be given equal representation in the House of Representatives, which, in conjunction with the Senate, writes the laws affecting the life, liberty, and property of all the people.\u201d\r\n\r\nIn other words, an equally effective vote means that each vote should count proportionally.\u00a0 Black\u2019s acknowledgement that effective votes require proportional voting reflects a growing awareness by legal theorists of the shortcomings of winner-take-all electoral systems.\u00a0 However, they had no clear legal basis to rule winner-take-all systems unconstitutional.\r\n\r\nFrankfurter\u2019s admonition that courts should avoid the \u201cpolitical thicket\u201d of redistricting held sway for another 25 years.\u00a0 Then came Baker v. Carr<\/u> in 1962.\u00a0 By this time, several retirements and deaths on the Court and the ascension of Earl Warren as chief justice produced a very different make-up compared the Court in Colegrove<\/u>.\u00a0 The justices agreed to hear a complaint against Tennessee\u2019s districts, which like Illinois, had not been redrawn since 1901.\r\n\r\nIt took a year for a divided Supreme Court to render a decision.\u00a0 The pressure and strife surrounding this case led to the retirement and health issues suffered by Justice Whittaker.\u00a0 Justice William J. Brennan, Jr. wrote the majority decision. He reformulated the political question doctrine originally articulated by Chief Justice John Marshall in the 1803 Marbury v. Madison<\/u> decision -- one of the most significant in U.S. history because it established the separation of powers.\u00a0 Brennan set forth six factors to determine if questions were political.\u00a0 They included \u201ca lack of judicially discoverable and manageable standards for resolving it.\u201d\u00a0 Based on this formulation, the Court held that redistricting presented a justiciable issue under the equal protection clause of the 14th<\/sup> Amendment. This decision opened the door for judicial intervention into state redistricting.\u00a0 Justice Warren would later say this was one of the most important decisions during his tenure as chief justice.\r\n\r\nFollowing Baker<\/u>, a slew of redistricting cases came to the Supreme Court.\u00a0 Reynolds v. Sims<\/u> took the Baker<\/u> decision to its logical conclusion.\u00a0 Considering the malapportionment of the Alabama legislative districts, the Supreme Court found that districts with unequal populations violated the equal protection clause of the 14th<\/sup> Amendment.\u00a0 Chief Justice Warren wrote the opinion.\u00a0 The court saw that overvaluing votes based on where a person lived resulted in \u201cdiscrimination against those individual voters living in disfavored areas.\u201d\u00a0 Warren echoed the logic expressed previously by Hugo Black:\r\n

[R]epresentative government is, in essence, self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State\u2019s legislative bodies\u2026.\u00a0 Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.<\/p>\r\nThe Court concluded that the equal protection clause requires state legislatures to \u201cmake an honest and good faith effort to construct districts \u2026 as nearly as equal in population as is practicable.\u201d \u00a0In other words, districts must meet the test of \u201cone person, one vote.\u201d \u00a0A major reason the Court ultimately entered this \u201cpolitical thicket\u201d was that malapportionment could be observed mathematically, making its remedy of equal population \u201cjudicially discoverable and manageable.\u201d That was not necessarily the case for other strategies that impaired the effectiveness of a person\u2019s vote such as gerrymandering.\r\n\r\nThe Rise and Fall of Racial Gerrymandering<\/strong>\r\n\r\nAt the same time the U.S. Supreme Court ended the practice of malapportionment, the Civil Rights Movement reached a crescendo.\u00a0 Congress passed the Voting Rights Act of 1965.\u00a0 This bill aimed to dismantle decades of Jim Crow laws that disenfranchised Blacks.\u00a0 Section 2 of the Act prohibits any requirement for voting that \u201cresults in a denial or abridgement of the right \u2026 to vote on account of race.\u201d\u00a0 As described in the essay \u201cMajorities, Minorities and Innovation in Electoral Design,\u201d the Act prompted a number of strategies -- mostly in Southern states -- to devise voting systems that made it difficult for Black candidates to win election even when Black voters have equal access to the ballot.\u00a0 In response, Congress amended Section 2 in 1982 (and Ronald Reagan signed it into law) to create a \u201cresults\u201d test, looking at various factors such as the extent to which minorities have won elections in a jurisdiction to determine whether that jurisdiction complied with the Act.\r\n\r\nThe Voting Rights Act and its amendments set the stage for an epic struggle over racial gerrymandering.\u00a0 A series of cases exposed how difficult it is to ensure minorities have an equal opportunity for representation in a winner-take-all voting system.\u00a0 The first case, Thornburg v. Gingles<\/u>, arose in North Carolina.\u00a0 The Court struck down multi-member districts because they diluted the power of minority voters who wished to choose a minority candidate.\u00a0 Lani Guinier served on a legal team led by North Carolina civil rights pioneer Julius Chambers.\u00a0 The majority opinion, written by Justice Brennan, created a test that prohibited multi-member districts when it could be shown that a minority group was sufficiently large and geographically compact to elect a minority in a single member district.\u00a0 This decision led to the creation of majority-minority districts.\r\n\r\nThe Gingles decision set the stage for the next case coming out of North Carolina.\u00a0 Following the 1990 census, legislators created the infamous 12th<\/sup> Congressional district that knitted Black communities together from Durham to Charlotte. This district achieved the desired effect of electing Mel Watt, the first Black U.S. representative from North Carolina since the end of Reconstruction.\u00a0 It also produced substantial legal and political backlash.\u00a0 A court case, Shaw v. Reno<\/u>, eventually made its way to the U.S. Supreme Court.\u00a0 Justice Sandra Day O\u2019Connor wrote the majority opinion, stating the district \u201cbears an uncomfortable resemblance to political apartheid.\u201d\u00a0 The Court found race cannot be the only justification for creating a district.\u00a0 A decision two years later clarified that race can be a factor in drawing districts, but it cannot be a predominant factor.\r\n\r\nThese decisions set the stage for the resurgence of extreme partisan gerrymandering, which had gone dormant since the 19th<\/sup> century.\u00a0 Because many Blacks affiliate with the Democratic Party, Republicans saw the advantage of concentrating Black voters into a few majority-minority districts, making it easier to spread out and dilute the strength of Democratic voters in other districts.\u00a0 The practice known as \u201cpacking and cracking\u201d became the cornerstone of Republican gerrymandering strategies.\u00a0 (Of course, Democrats, when given the opportunity, employ similar gerrymandering strategies to dilute Republican voters.)\u00a0 One study showed these court cases cost Democrats ten seats in the South following the 1990 census.\r\n\r\n[caption id=\"attachment_9448\" align=\"alignright\" width=\"400\"]\"\" Lani Guinier<\/em>[\/caption]\r\n\r\nLani Guinier, who helped argue Shaw,<\/u> came to see the flaw in thinking majority-minority districts in a winner-take-all system would serve the cause of democracy.\r\n\r\nWhile race served as a convenient excuse for gerrymandering, other forces ignited the inexorable push toward extreme gerrymandering. \u00a0No longer did partisans allow districts to go untended for decades.\u00a0 Parties wanted to inflict maximum pain on their adversaries by creating bullet proof majorities in state legislatures and Congress.\u00a0 New technologies in the form of sophisticated software provided the means to accomplish this objective.\u00a0 The crude data once used by map drawers to predict future behavior was replaced by sophisticated software systems, which consider data at the household level.\u00a0 Such data include party registration, political donations, voting frequency and rich demographic information on age, income, race and education.\r\n\r\nThis information allows fine grain manipulation of district lines that can hold up election cycle after election cycle.\u00a0 For example, one study compared the results of gerrymandering in Ohio following the 1880 census and the 2000 census.\u00a0 In both cases, Democrats comprised about 48% of the electorate.\u00a0 The average margin of victory for district races in the 1882 redistricting was 4.8% while the average was 16.5% in 2002.\u00a0 The significant increase reflects the ability of parties to use improved data to draw districts more immune to competition.\u00a0 Another example can be drawn from recent redistricting in North Carolina.\u00a0 The Democrats gerrymandered districts following the 2000 census but ultimately lost a majority in the state legislature in the 2010 election.\u00a0 Having gained control, the Republicans gerrymandered districts in 2012 and maintained control of both chambers of the legislature by a wide margin in every election cycle through 2020 \u2013 even though the statewide vote was often nearly 50-50 between the two major parties.\u00a0 Clearly, the tools to predict voter behavior have markedly improved.\r\n\r\nJudicial Efforts to Stop Partisan Gerrymandering<\/strong>\r\n\r\nIn many ways, partisan gerrymandering presents a more direct threat to democratic principles than malapportionment.\u00a0 In the case of the former, politicians intentionally manipulate districts to predetermine an electoral outcome that favors one party.\u00a0 As such, general elections are unnecessary.\u00a0 Since districts are dramatically skewed to favor one party or another, the primary election proves decisive to the ultimate outcome.\u00a0 The general election does not serve as a moderating influence on candidates who are incentivized to pander to their base.\u00a0 The corrosive impact of gerrymandering on competition has spurred pro-democracy groups to argue that partisan gerrymandering is unconstitutional just as malapportionment was.\r\n\r\nThe Supreme Court took a major step in that direction with Davis v. Bandemer<\/u> in 1986. In that case, Democrats challenged a Republican redistricting plan in Indiana after Democrats won a majority of votes statewide but only 43 out of 100 State House seats.\u00a0 Justice Byron White wrote the majority opinion.\u00a0 Acknowledging that the malapportionment cases rested on an \u201carithmetic presumption\u201d about the unequal size of districts, White claimed the same principle of \u201cfair and effective representation for all citizens\u201d was at stake.\u00a0 He pointed to the racial gerrymandering decisions and drew a straight line to political gerrymandering.\u00a0 In both situations, an identifiable group has \u201can insufficient chance to elect a representative of its choice, and that district lines should be redrawn to remedy this alleged defect.\u201d\u00a0 Consequently, the court found for the first time that partisan gerrymandering was justiciable.\r\n\r\nThe Court, however, faced a hurdle that would prove insurmountable. \u00a0The Supreme Court struggled to identify a manageable standard to apply to gerrymandering under a winner-take-all electoral system.\u00a0 A proportional voting system would clearly remedy the unfairness of partisan gerrymandering, but the Constitution does not mandate such a system.\u00a0 Consequently, the Court wrote that the \u201cmere lack of proportional representation will not be sufficient to prove unconstitutional discrimination.\u201d \u00a0White noted that the District Court reached its conclusion of unconstitutionality based on the results of one election in 1982.\u00a0 It would take more than that to prove the redistricting scheme violated the Equal Protection clause.\u00a0 The Court speculated that Indiana, a swing state, could well change over in the next election cycle.\u00a0 Without findings that the scheme consigned one party to minority status for an entire decade, the Court could not determine it violated the constitution.\r\n\r\nLast Gasp for Judicial Review?<\/strong>\r\n\r\nWhile Baker<\/u>\u2019s finding of justiciability led to a quick succession of cases that ended malapportionment, Davis<\/u> did not produce the same result.\u00a0 Courts continued to struggle with a standard for partisan gerrymandering.\u00a0 Partisan gerrymandering lacked the mathematical clarity of measuring district populations. No one doubted that politicians intended to disadvantage their opponents when gerrymandering.\u00a0 However, a majority on the court could not settle on a manageable standard.\u00a0 Without an objective standard such as proportionality between votes cast and party representation, it is hard to draw a clear line between a constitutional map and an unconstitutional map.\u00a0 In a winner-take-all system, it is easy to hide partisanship under the guise of neutral standards such as contiguity, compactness and communities of interest when drawing maps.\r\n\r\nMomentum for judicial action did build after the 2010 redistricting when new software and hyper partisanship made gerrymandered maps even more impregnable.\u00a0 The plaintiffs in Gill v. Whitford<\/u> used a novel way to create a manageable standard for partisan gerrymandering.\u00a0 A political scientist at the University of Wisconsin (once again the cradle of innovation) devised the \u201cefficiency gap\u201d that measures the percentage of wasted votes based on gerrymandered maps.\u00a0 It concluded that a gap greater than 7% would shut out the opposing party for the duration of the map (i.e., 10 years).\u00a0 The Supreme Court\u2019s decision to hear the case in 2017 raised the hopes of pro-democracy groups.\u00a0 Chief Justice John Roberts dashed those hopes when he wrote a majority opinion that remanded the case based on lack of standing.\r\n\r\nClose on the heels of Gill<\/u>, Rucho v. Common Cause<\/u> became the next major showdown on partisan gerrymandering.\u00a0 Also based on maps drawn in 2010, the Supreme Court agreed to hear dueling cases that challenged congressional districts drawn by Republican legislators in North Carolina and Democratic legislators in Maryland.\u00a0 Plaintiffs hoped that casting blame on both parties would underscore the principles of democracy that transcended party \u2013 particularly in an age of polarization.\u00a0 Despite the near 50-50 statewide party vote in North Carolina, Republicans managed to win 10 of 13 congressional districts.\u00a0 Republican legislators took pains to show they did not rely on racial data in drawing the maps.\u00a0 Perhaps going too far, Representative David Lewis famously stated \u201cI propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it\u2019s possible to draw a map with 11 Republicans and two Democrats.\u201d\r\n\r\nAfter district courts ruled the North Carolina and Maryland maps unconstitutional, the Supreme Court agreed to hear a consolidated case. Chief Justice Roberts delivered the majority decision, which put a dagger in hearts of those searching for a legal principle to end partisan gerrymandering.\u00a0 Reversing Davis<\/u>, the Court found that partisan gerrymandering presented a political question.\u00a0 Therefore, it was not justiciable.\u00a0 Ignoring the reasoning of previous justices who drew a straight line between malapportionment, racial gerrymandering and partisan gerrymandering based on the theory of an equally effective vote, the Court saw no such link.\u00a0 Echoing Justice Frankfurter, Roberts acknowledged that \u201cExcessive partisanship in districting leads to results that reasonably seem unjust.\u00a0 But the fact that such gerrymandering is \u2018incompatible with democratic principles,\u2019 does not mean that the solution lies with the federal judiciary.\u201d\r\n\r\nThe majority rejected the idea that a judicially manageable standard exists in the context of partisan gerrymandering.\u00a0 Roberts noted that the constitution does not mandate a fair system such as proportional voting.\u00a0 Given that states use winner-take-all systems, it is exceedingly difficult to identify how fairness should be achieved.\u00a0 Should maps seek as many competitive districts as possible?\u00a0 Should they manipulate lines to ensure those elected reflect the overall partisan make-up of the state?\u00a0 Or should they use neutral criteria such as compactness, contiguity and communities of interest that could result in a variety of outcomes?\u00a0 Roberts exposed the challenge of creating a judicial standard in the winner-take-all world.\r\n\r\nAnd yet, the outcome of Rucho<\/u> showed how close the Supreme Court came to taking the next logical step just as it did with the malapportionment cases of the 1960s.\u00a0 The decision was 5-4.\u00a0 Had the U.S. Senate confirmed Merrick Garland\u2019s nomination following the death of Justice Antonin Scalia in 2018, the outcome would almost certainly have gone the other way.\r\n\r\n[caption id=\"attachment_9449\" align=\"alignright\" width=\"400\"]\"\" Justice Elena Kagan<\/em>[\/caption]\r\n\r\nJustice Elena Kagan wrote a blistering dissent in Rucho<\/u>, and at the same time, articulated how a different Court would have established a new constitutional framework prohibiting extreme partisan gerrymanders.\r\n\r\nHer dissent accomplishes this in two ways.\u00a0 First, she describes gerrymandering in more serious terms than the majority.\u00a0 She notes that gerrymandering attacks a fundamental democratic principle that people should choose their representatives and not the opposite.\u00a0 Moreover, \u201cbig data and modern technology\u201d now make gerrymandering an existential threat to American democracy. \u00a0By creating districts that cater to the most extreme primary voters, the practice feeds into the polarization that has made Congress nearly dysfunctional. \u00a0She writes, \u201cIf left unchecked, gerrymanders like the ones here may irreparably damage our system of government.\u201d\u00a0 Where the majority sees gerrymandering as an unfortunate appendage of winner-take-all voting, Kagan sees it an existential threat to the foundations of democracy.\r\n\r\nSecond, she explains in detail the standard applied to \u201cextreme gerrymandering\u201d by district courts across the country to say that a judicial standard is workable.\u00a0 To demonstrate a redistricting map is unconstitutionally extreme, the evidence must show it an outlier among possibilities based on a state\u2019s neutral standards such as compactness, contiguity or communities of interest.\u00a0 The plaintiffs in North Carolina offered experts with mathematical models that produced thousands of maps, showing the impossibility of creating the map at issue without the use of partisan criteria.\u00a0 Kagan argued the Court does not have to inject its opinion as to fairness.\u00a0 It only needs to create a baseline for extreme gerrymandering when evidence proves a map to be an \u201coutlier.\u201d\u00a0 In that case, the map constitutes a \u201csubstantial harm\u201d to effective votes.\u00a0 Courts apply the standard of substantial harm in a variety of settings such as antitrust.\u00a0 In other words, Courts do not have to apply a mathematical principle as it did in the malapportionment cases to mitigate the worst ills of partisan gerrymandering.\r\n\r\nKagan concludes her dissent in dramatic fashion:\u00a0 \u201cOf all times to abandon the Court\u2019s duty to declare the law, this was not the one.\u00a0 The practices challenged in these cases imperil our system of government.\u00a0 Part of the Court\u2019s role in that system is to defend its foundations.\u00a0 None is more important than free and fair elections.\u00a0 With respect but deep sadness, I dissent.\u201d\u00a0 The Rucho<\/u> decision shut the door on the possibility that partisan gerrymandering would share the same fate as malapportionment and racial gerrymandering.\u00a0 The battle to reign in abusive redistricting would have to shift to other fronts.\u00a0 Justice Roberts pointed the way in his majority opinion, suggesting plaintiffs look to state courts and legislative reform for help.\u00a0 Kagan scoffed at this alternative, but that is all that is left for the moment.\r\n\r\nState Court Action to End Gerrymandering<\/strong>\r\n\r\nWith partisan gerrymandering no longer a justiciable issue under the U.S. Constitution, Common Cause and other groups looked to state courts for help.\u00a0 These cases focus on provisions in state constitutions that specifically refer to fair elections.\u00a0 Several months prior to the Rucho<\/u> decision, Common Cause had filed a lawsuit in North Carolina state court \u2013 Common Cause v. Lewis<\/u>.\u00a0 Like Justice Roberts suggested in the Rucho<\/u> decision, the plaintiffs contended that partisan gerrymandering violated several provisions in the state constitution rather than the U.S. Constitution, including the equal protection, rights of association and free expression and free elections clauses.\u00a0 A three-judge panel issued an opinion in September 2019 \u2013 three months after Rucho<\/u> \u2013 finding for Common Cause that the state\u2019s legislative maps constituted impermissible partisan gerrymanders.\r\n\r\nThe panel explicitly references Justice Roberts\u2019 opinion in Rucho<\/u>, stating that decision\u2019s conclusion does not \u201ccondemn complaints about districting to echo into a void\u201d because \u201cprovisions in state constitutions can provide standards and guidance for state courts to apply.\u201d\u00a0 In this case, the panel cited the Free Elections Clause in the state constitution as more specific than the U.S. Constitution \u201cin protection of the rights of its citizens.\u201d \u00a0This clause dates back to the state\u2019s Declaration of Rights in 1776, which was based on the 1689 English Bill of Rights, providing that \u201celection of members of parliament ought to be free.\u201d\u00a0 The opinion concluded there is a compelling interest of the State to have fair elections \u201cthat the voters should choose their representatives, not the other way around.\" Evidence showing the districting plan made it impossible for Democrats to win a majority was sufficient to find the plan violated this clause.\u00a0 For similar reasons, the panel found the maps violated the other two clauses as well.\r\n\r\nThe Lewis<\/u> decision initially sent political shock waves in North Carolina.\u00a0 However, the long-term impacts underscore the limits of reform in a winner-take-all voting system.\u00a0 The panel only enjoined a handful of districts from being used in the 2020 election as extreme gerrymanders.\u00a0 It ordered the legislature to use neutral criteria, including equal population, contiguity of districts, compactness, municipal boundaries and incumbency protection.\u00a0 As Kagan noted in Rucho<\/u>, these neutral criteria can still lead to electoral results that do not reflect the make-up of the electorate.\u00a0 Her admonition bore out in the 2020.\u00a0 Democrats only picked up two of the redrawn seats.\u00a0 Republicans maintained a strong majority in both chambers.\u00a0 Unsurprisingly, legislators still understood how to achieve partisan gerrymanders under the guise of these neutral criteria.\u00a0 As long as politicians are drawing districts in a two-party system, maps will reflect the partisan objectives of the controlling party.\r\n\r\nIndependent Districting Commissions<\/strong>\r\n\r\nThe U.S. is the only nation where politicians draw their own districts, and politicians simply cannot withstand the inexorable pull of self-interest when designing maps.\u00a0 The obvious fix is to remove them from this conflict of interest.\u00a0 Consequently, reformers have advocated both bi-partisan and independent commissions to draw maps.\u00a0 A number of states have instituted such reforms in recent years.\u00a0 Some commissions use elected officials.\u00a0 Others use political appointees and ordinary citizens.\u00a0 Pro-democracy groups suggest the following standards:\r\n