Gerrymandering

A federal court recently struck down a gerrymandering scheme in Wisconsin in a case that could set a major precedent for the country. Once every ten years, after each Census is completed, the boundaries for House of Representatives districts have to be re-drawn to keep their populations equal. The U.S. Constitution leaves it to state legislatures to decide how to draw these districts. Gerrymandering is the intentional abuse of that power; legislatures might gerrymander to keep minority groups out of power or to benefit one political party. The longtime practice of gerrymandering has always had its critics. As President Obama recently said, “Politicians should not pick their voters; voters should pick their politicians,” though Obama didn’t coin the phrase and wasn’t the first to express exasperation about gerrymandering.

Contrary to popular opinion, gerrymandering isn’t about protecting incumbents by giving them safe districts. The actual process of gerrymandering involves two steps: packing and cracking. Packing is the placement of your opposition’s voters into a few, concentrated districts. Cracking is the distribution of the remaining opposition voters into districts that they can’t win. Here’s what a gerrymandering scheme using packing and cracking could look like:

Possible party B gerrymander
	Votes for party
District	A	B	Winner
1	95	5	A
2	45	55	B
3	45	55	B
4	45	55	B
5	45	55	B
Total	275	225

District 1 is packed with party A supporters. Party A’s remaining voters are cracked across the other four districts, which they can’t win. Even though party A received 275 out of 500 votes, or 55%, they win only one district out of five, or 20%. There’s no way party B could have gerrymandered this any better. Four districts are safe enough that party B will likely never lose those races, even in a bad election year for their party. Trying to give their party a bigger margin in any of those races would only make another race closer. Getting the right vote totals in each district may require drawing some unusual shape districts. Gerrymandering gets its name from an 1812 Massachusetts district map, approved by Governor Gerry, with one district that looked like a salamander. The map benefited his party, even though Gerry lost his own office for it.

The U.S. Supreme Court has never struck down a gerrymandering scheme that attempted partisan gain, only gerrymandering done to deprive minority groups of voting power. The Voting Rights Act prohibits racially motivated gerrymandering, and justices have also looked to the Equal Protection Clause of the Fourteenth Amendment. The Court has allowed the creation of districts where a minority group is a near majority of the voters to ensure that minority groups can elect their own representatives to Congress. In southern states, for example, African Americans vote so heavily Democratic, and white people vote so heavily Republican, that some districts must approach a 50-50 racial mix in order to elect black congresspeople. The Supreme Court has allowed this as long as race isn’t the primary factor in making the districts. Two racial gerrymandering cases will be heard by the Court soon, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris, so the standards might be changing soon.

Partisan gerrymanders, however, have long been ignored, although Justice Kennedy has indicated that if a clear standard for judging gerrymandering’s severity could be found, he would rule against partisan gerrymandering as well. Along with the four liberal justices on the Court, Kennedy might bring forth a new Supreme Court precedent. The Court, by the way, cannot decline to make some ruling on the Wisconsin case.

The Wisconsin case is the result of an unlikely group of statisticians, political scientists, and lawyers attempting to serve up to Justice Kennedy a standard for judging gerrymandering. Their work is premised on the concept of a “wasted vote”: any votes above 51% or any vote in a lost race are considered “wasted.” In the hypothetical gerrymandering scenario, this is what the wasted votes look like:

Wasted votes in party B gerrymander
	Votes for party			Wasted votes for
District	A	B	Winner	A	B
1	95	5	A	44	5
2	45	55	B	45	4
3	45	55	B	45	4
4	45	55	B	45	4
5	45	55	B	45	4
Total	275	225		224	21

Party B gerrymandered the districts to waste 224 of party A’s 275 votes. Party A’s wasted votes almost equal the total votes party B received! Of course, the plaintiffs would also have to prove that gerrymandering happened intentionally, but proving too many votes are wasted is the necessary first step. No mathematical evidence, no case.

Using the wasted votes standard proposed in the Wisconsin case, seven states have Congressional districts that are suspicious: Florida, Michigan, North Carolina, Ohio, Pennsylvania, Texas, and Virginia—all of them pro-Republican gerrymandering. In Pennsylvania, the Republican Senate candidate won 51% of the two-party vote, as did Trump. The Pennsylvania House delegation, on the other hand, will be thirteen Republicans to five Democrats, or 72% Republican. One reason all the current gerrymandering schemes are Republican is that the G.O.P. controlled more state legislatures after 2010, when the last re-districting was done.

Another standard proposed for measuring gerrymandering is to look at the median district. In the hypothetical gerrymander given before, the median district—the middle in a list from party A’s worst to best district—is a 55% to 45% result in favor of party B. Yet party A received 55% of the overall votes. This gap of 10 percentage points between the median district and statewide total is sizable.

Packing isn’t necessarily bad. A district could reflect a real community of interest, a group of people with similar social, economic, and political interests. For example, in Oregon, the Democratic candidate for Portland’s congressional district ran unopposed. The people of Portland share a similar enough view with the Democratic candidate that it deterred any Republicans from challenging the seat. The Supreme Court has ruled that predominantly African American or Hispanic districts can ensure minority representation in Congress and can serve a community of interest’s needs.

Likewise, cracking isn’t necessarily bad either. It depends on the ratio. A 50-50 split district is competitive. Even a 52-48 split could swing to the other party in some years. The real question is about one party being systematically disadvantaged by packing and cracking. So how does Oregon fare?

Oregon 2016 results in U.S. congressional races
	% votes for *			% wasted votes for
District	Democrat	Republican	Winner	Democrat	Republican
1	62	38	D	11	38
2	28	72	R	28	21
3	100	-	D	49	0
4	58	42	D	7	42
5	55	45	D	4	45

* This is the two-party vote share; third party and write-in results excluded for simplicity.

District 3 is “packed” for the Democratic candidate who ran unopposed. Offsetting this is the fact that District 2—all of eastern Oregon—is packed for the Republican. However, Republican voters seem to be “cracked” into Districts 4 and 5, central-west and southwest Oregon respectively.

How does Oregon look on either measures of gerrymandering? The Democrats took 58% of the two-party vote share. The median district is district 4, and Democrats won 58% there, so the gap is zero. However, on the wasted votes measure, Oregon is not doing as well. Democrats wasted 326,030 out of 991,008 votes statewide, or 33% wasted. Republicans wasted 524,332 out of 709,716 votes, or 74% wasted. Ideally, both parties would waste about 50%. The divergence between the two measures of gerrymandering—one good, one not-so-good—is why the Supreme Court wants to settle on one standard, not two or more competing definitions, of partisan gerrymandering.

Based on Oregon Republicans winning 42% of the two-party vote, the state might be expected to have about two Republican congresspeople out of five. One could imagine an alternative to the current district 4 and 5 arrangement that shuffled counties into two new districts: a greater Willamette Valley district comprising Salem, Albany, Corvallis, and Eugene, solidly Democratic; and a U-shaped Cascades, south-central, and coastal Oregon district, leaning Republican. This would move one of the districts into the Republican column. However, it’s often difficult to shift a few voters around and create balance as measured by wasted votes. The standards that people have proposed only kick in when gerrymandering creates a two-seat difference or more because it isn’t always possible in small states to make districts balanced. Geography can get in the way.

Some political scientists have proposed using computer programs to draw district boundaries, but this doesn’t solve the root of the problem. For example, a program might try to create more compact districts. That tends to pack Democrats into small, round city districts, wasting Democratic votes. Alternatively, a program might try to create short, straight-line district boundaries, cutting a state into districts like you might cut a cake into irregular polygons. That tends to pack Republicans into large, rectangular rural districts, wasting Republican votes. The bias in the program comes from preferring one type of shape to another. Natural and human geography can necessitate all different shapes to reflect real communities of interest. An eastern Oregon district makes sense, as does a coastal Oregon one, but one district is a near square and the other would be pencil-shaped.

The best hope is for states to put non-partisan commissions, not state legislatures, in charge of drawing reasonable boundaries. Iowa has a long-standing commission; Arizona, California, and New Jersey have newer commissions. There are strengths and weaknesses to each state’s set up for its commission, but the outcomes have been better with commissions than without. Perhaps the threat of losing a federal case for gerrymandering will persuade more state legislatures to enact a non-partisan option, only 204 years after Governor Gerry learned his lesson the hard way at the hand of Massachusetts voters.