He Who Has His Hand on the Mouse Wins: Gerrymandering and the Map to Durable Power (Part 1)
Posted on December 21, 2016
A long time ago, when I was a baby lawyer, I had the privilege of being on the NAACP’s legal team in a North Carolina redistricting case seeking relief for black voters in North Carolina under the Voting Rights Act (“VRA”) and the Equal Protection Clause of the U.S. Constitution. Born out of that experience were two, equally strong beliefs that, if anything, are truer now than they were in 2001. First, computer-aided redistricting allows Republicans to do with math, algorithms and pretty pie charts what they cannot do consistently on the stump–create a durably red Congressional and General Assembly map. Second, the people most impacted by gerrymandered districts do not understand how gerrymandering works (because it is infinitely complicated) resulting in ineffectual political organizing and mobilizing strategies. I’m referring, of course, to Democrats’ 2012 popular vote win in the House of Representatives that nonetheless resulted in Republicans taking a 17 seat majority. While everyday Democrats cannot do much to change the course of the gerrymandering litigation discussed in this series of posts, politically active voters must better understand the vagaries of redistricting in order to improve our ground game and make inroads into key state and national Republican held seats. As you’ll see, there are voting districts where Democrats must win, not by a simple majority (50.01%), but, effectively, by 56% of regular voters (turning Rs to Ds) in order to flip a gerrymandered “safe” seat.
This is the first in a series of posts explaining at a very high level the laws and policies relating to gerrymandering (post 1), the recent spate of gerrymandering litigation across the country, focusing on the North Carolina cases (post 2) and the implications of gerrymandering on political activists (post 3).
What is Gerrymandering?
Gerrymandering is the process by which states redraw the boundaries of voting districts to the advantage of the political party in control. Redistricting occurs in “zero years,” meaning after the decennial federal census. In states where it holds a legislative majority, the GOP openly pursues an organized, aggressive redistricting strategy known as Project REDMAP. I have a lot of respect for Project REDMAP in an evil genius sort of way. When it comes to redistricting, the Right has its you-know-what together at the state level. There is a coordinated effort to employ Republican state legislatures to gerrymander legislative maps in such a way that Republicans are almost guaranteed a majority in the House of Representatives and state general assemblies. There is another post brewing in my brain about why Reaganites and Tea Partiers are better at lining up their ducks into trickle-down rows; but for now, just trust me, Republicans excel at drawing districts to protect Republican political power.
In states where it holds a legislative majority, the GOP openly pursues an organized, aggressive redistricting known as Project REDMAP.
To be sure, gerrymandering is not a new political practice. Both parties have engaged in some form of gerrymandering since 1888. Now, however, “big data” predictive analytics allow legislatures to consider several results-oriented maps with increasing precision and efficacy. In other words, mapping technology helps legislators gerrymander faster and more effectively than the old calculator and magic marker method.
Just How Gerrymandered is My District?
There are means of measuring just how gerrymandered a particular district may be, but the dominate theory, and the one I hope takes deeper root with SCOTUS, is something called the “efficiency gap”,explained in the linked University of Chicago (of Law & Economics fame) law review article. Understanding the efficiency gap is as good a way as any to dive into the muck of how gerrymandering works.
Most gerrymandering is accomplished by “packing” or “cracking” districts–cramming opposition voters into a single district or dividing them so they are the majority in fewer total districts. Packing opposition supporters into a handful of districts results in landslide victories (with wasted opposition votes). Cracking means opposition votes are divided among multiple districts where they lose by slim margins.
Are packing and cracking legal? Thus far, a majority of courts agree that some partisan advantage in redistricting is permissible because voters are not spread equally across a state or district by party. But SCOTUS has also said that political gerrymandering can be unconstitutional if it is severe enough (see Davis v. Bandmere). Justice Kennedy, the current “swing” vote on the Court, indicated in his 2004 concurrence in Vieth v. Jubelirer that there may be times when political gerrymandering goes so far as to deny voters Equal Protection under the law. Since Vieth, legal scholars and law nerds have been trying to formulate a test for gerrymandering that would be universal enough to make a workable legal standard. I think Stephanopoulos and McGhee, who authored the law review article I mentioned above, may have done it with their “efficiency gap” calculation.
The efficiency gap captures in a single number a redistricting plan’s cracking and packing. As explained in both the Wisconsin and North Carolina redistricting lawsuits discussed in my next post, North Carolina’s efficiency gaps in 2012 and 2014 “exhibited pro-Republican partisan biases larger than 25 percent” – by far the worst in North Carolina’s modern history and at the far edge of the nationwide distribution. In English: The NC map was way outside the standard deviation for historical GOP gerrymandering in North Carolina and the nation. We are playing with a stacked deck.
An efficient gerrymander spreads a winning party’s votes evenly over districts so that very few votes are wasted. Stephanopoulos defines his and McGhee’s “efficiency gap” this way:
The efficiency gap is simply the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. Wasted votes are ballots that don’t contribute to victory for candidates, and they come in two forms: lost votes cast for candidates who are defeated, and surplus votes cast for winning candidates but in excess of what they needed to prevail. When a party gerrymanders a state, it tries to maximize the wasted votes for the opposing party while minimizing its own, thus producing a large efficiency gap. In a state with perfect partisan symmetry, both parties would have the same number of wasted votes.
Four decades of state redistricting plans evidence that any party with an efficiency gap of 7 percent or more is likely to keep the party’s majority during the 10 years before new districts are drawn. In the maps drawn by the North Carolina General Assembly after the 2010 census, North Carolina’s efficiency gap was 25%. This effectively insulates many legislators from the fear of defeat in general elections, granting them license to be more extreme in catering to their conservative base because all the action is at the primary level. With an efficiency gap this high, Republicans only real fear is attack from the Right, not from the Left. I’ll let you draw your own conclusions about what that means regarding the political influence of groups like white nationalists.
The Washington Post ran an helpful graphic for understanding the efficiency gap, shown here.
What are the Gerrymandering Rules?
Usually when I get to this point in the discussion, if my listener is still awake, they ask with indignation whether there are no rules, no laws, that protect their right to elect a candidate of their choice. There are, of course, a myriad of both state and federal legal rules about both what is permissible and what is required in drawing legislative districts, though most of the rules are relics from an older time before digitally enhanced gerrymandering. Additionally, most states have somewhat unique map-drawing statutes. That said, there are common requirements, which are often repeated in the case law. They include that districts must be (1) contiguous, (2) compact and made up of (3) “communities of interest.” These standards must be achieved while simultaneously complying with Equal Protection and the VRA.
A district is contiguous if a person can travel from any one point in the district to any other point in the district without crossing the district’s boundary. Most states require portions of a district to be connected by more than a single point.
Sometimes it is easier to show what is NOT contiguous. See this old map from the Illinois 4th Congressional District near Chicago:
The “Illinois Fourth” was created to pack a large number of Hispanics into a Democratic district. It has a notorious nickname among gerrymander nerds –“earmuffs.”
Thirty-seven states require districts to be “reasonably compact.” This term is often not specifically defined, but a district in which people generally live near each other is more compact.
NC’s own Congressional District 12 is an excellent example of what is NOT compact.
This majority African American district was the long-held seat of former Democratic Representative, Mel Watt, (full disclosure: I once worked at Watt’s law firm and lived in the Twelfth). This district is one of the most heavily litigated districts in America boasting at least three Supreme Court appearances.
Community of Interest
Districts must generally preserve “communities of interest.” A “community of interest” is a group of people who would benefit from similar kinds of legislation. In practice, legislatures may refer to oblique, stereotyped groups such as “the farmers” or “the NASCAR crowd” when talking about communities of interest.
The U.S. Constitution governs the apportionment and drawing of congressional districts. Section 2 of the Fourteenth Amendment states:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State….
The VRA and Equal Protection
The Equal Protection Clause mandates our basic electoral math: one person=one vote. Nothing may abridge or dilute this math. SCOTUS held in Rogers v. Lodge and Shaw v. Reno (“Shaw I”) that there are essentially two types of Equal Protection claims arising out of redistricting: (1) claims of vote dilution of a race (1 person of color= < or > 1 vote); and (2) racial sorting, where the redistricting separates voters on the basis of race without “sufficient justification.”
As a foundation issue, it is unconstitutional for issues of race to predominate the decision. SCOTUS, in Shaw I ,stated that racial gerrymandering “reinforces the perception that members of the same racial group . . . think alike, share the same political interests, and will prefer the same candidates at the polls”.
The VRA was enacted to combat districts drawn to dilute African American representation. Section 2 of the VRA prohibits redistricting plans that result in vote dilution, which occurs when “it is shown that . . . members of a [protected group] have less opportunity than [white voters] to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b). This rule does not turn on the intent of legislature. Rather, it applies whether dilution is intentional or is the result of non-intentional practices that have a discriminatory effect.
Section 5 of the VRA applies only to “covered jurisdictions” (states with historical discriminatory redistricting practices) and prohibits changes to voting maps “that [have] the purpose … diminishing the ability of any [protected group ability] to elect their preferred candidates.” SCOTUS, however, invalidated the criteria used to determine which jurisdictions are covered by Section 5 in Shelby v. Holder. To prove racial gerrymandering, a challenger must “show … that race was the predominant factor motivating the legislature’s decision to place a significant number of voters [in a] district.”
The 2015 SCOTUS case, Alabama Legislative Black Caucus v. Alabama, has further elucidated the boundaries of the Equal Protection Clause and the VRA. Most significantly for our discussion, the Alabama Court held that the VRA does not require a covered jurisdiction to maintain a particular numerical minority percentage–e.g., a Black Voting Age Population (“BVAP”) of greater than 55%. Instead, the VRA requires only that the jurisdiction maintain a minority’s ability to elect a preferred candidate of choice.
What is the rule, pieced together from this case law patchwork? It’s not clear, but my working definition is that the VRA and the Equal Protection Clause require that African Americans have the ability to elect candidates of their choice, but that race may not predominate line drawing unless the legislature can prove that African American enfranchisement can only be maintained if race is considered. Additionally, there is no “magic number”–e.g., 55% of BVAP –that must be reached to create a majority-minority district. It may be enough under the VRA to create a district with a BVAP of 50.01%. Given the Equal Protection challenges that arise when drawing racially packed districts, it may be constitutionally preferable to use a smaller number target number, so long as the group’s ability to elect a candidate of its choice is not negatively impacted.
Trust me, I realize this is all complicated and somewhat mind-numbing. This is the background, however, for the North Carolina, Wisconsin and Virginia redistricting litigation that will determine state politics for the next four years, until the 2020 census changes the rules of the game again. It is important to understand it before delving into the facts of those cases.