Reapportionment and Gerrymandering
I have been re-reading the pioneering cases of Baker v. Carr https://supreme.justia.com/cases/federal/us/369/186/ and Reynolds v. Sims https://supreme.justia.com/cases/federal/us/377/533/ — cases on reapportionment and reflecting on our current state of affairs. These were landmark Supreme Court cases from the 1960’s, which were every bit as meaningful as Brown v. Board of Education, nearly a decade earlier.
The dissents argued that these were political questions that should be rectified by the legislature, not the judicial branch. The dissents argued that invidious discrimination in the drawing of legislative districts dated back to the earliest dates of the Republic and were common among our English forebears as “rotten boroughs”.
Baker v. Carr established that state reapportionment and line drawing were reviewable by the federal courts under the Equal Protection Clause of the 14th Amendment. The 8-1 majority in Reynolds v. Simms established the principle of one man/one vote in reapportionment and in a state’s line drawing for elective office. Gomillion v. Lightfoot established that states could not draw electoral district lines to disenfranchise racial minorities.
In 1790’s, the nation was over 90% rural; by the 1960’s, the nation was about 85-90% urban and suburban. https://en.wikipedia.org/wiki/Urbanization_in_the_United_States States like Tennessee and Georgia and Alabama continued to draw their district lines for federal, state and/or local elections based on their 1900 census. As a result, the value of one’s vote if living in an lightly populated, rural part of Tennessee or Alabama was up to 20 times the value of one’s vote for those living bin urban areas like Memphis or Montgomery.
The Court in Reynolds v. Sims said “The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing -- one person, one vote.” “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.” “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.”
In short order, states had to update the lines defining their electoral districts to reflect “one man/one vote”. The reordering of political lines and legislative priorities was earth-shattering, and as it turned out highly beneficial; see the discussions of Justices Breyer and O’Connor in the following clip. https://www.annenbergclassroom.org/resource/one-person-one-vote-baker-v-carr-reynolds-v-sims/
We are about to undertake the reapportionment and line drawing governing elections in House Districts and state legislature’s for the next 10 years. At the time of the last reapportionment, the Republican Party had the voting majority in many of the nation’s states. They drew the electoral district lines in a manner known as “partisan gerrymandering” to preserve and expand Republican control in the House of Representatives and in state legislative districts. The techniques they used are called “packing and cracking”. Essentially many of the Democratic Party votes are concentrated into heavily Democratic districts — packing. The remainder of Democratic voters is then apportioned into Republican districts but in numbers that do not allow for Democrats to win elections — cracking. Both political parties engage in partisan gerrymandering to advantage themselves in what otherwise would be tightly contested election contests.
The Supreme Court recently ruled that partisan gerrymandering was a “political question” and was thus not justiciable by the federal courts — i.e. the courts had no jurisdiction to decide these cases. https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf Several state courts have waded in where the Supreme Court has refused to tread, using their state constitutions to protect the interests of their own citizens from both political parties in free and fair elections. https://www.brennancenter.org/our-work/analysis-opinion/pennsylvanias-partisan-gerrymandering-saga-ends-victory-voters and https://www.facingsouth.org/2020/11/north-carolina-election-results-show-persistence-partisan-gerrymandering In other states, voters have taken to their state’s ballot initiative process to make elections fairer and more competitive for both political parties. https://www.governing.com/archive/gov-redistricting-2018-ballot-measures-midterms.html California voters turned over redistricting to an independent commission; the results so far have been more competitive seats and less job security for incumbent legislators. https://ash.harvard.edu/news/california%E2%80%99s-ambitious-experiment-redistricting-reform-gets-nod-harvard Neighboring Arizona successfully reformed its redistricting process with an independent commission. https://ash.harvard.edu/files/ash/files/az_redistricting_policy_brief.pdf Michigan voters have approved a similar independent commission, no results as yet. https://www.brennancenter.org/our-work/analysis-opinion/attack-michigans-independent-redistricting-commission
Partisan gerrymandering has been key to assuring that a minority of a state’s voters have been able to secure and wield electoral power disproportionate to their actual numbers and to preserve their legislative majorities. It needs to be changed by our nation’s voters at either the state (state lawsuits or ballot initiatives) or federal level (legislation).
Prepared by: Lucien Wulsin
Dated: 3/19/21