Posted By: Micah Brierley, Mike Boehringer, Virginia Bosio, Lindsey Bulloch, Carlee Bliss, Philip Coelho
Access to equal voting rights continues to be a substantial problem in elections. Gerrymandering, the process of redistricting lines to minimize the impact of an individual’s vote, has been a highly contested issue since its first application in 1812. With the continued dilution of individuals’ voting rights, it is important for members of the public to understand when they can sue in court over redistricting issues. An important requirement for individuals to sue is standing. Is there a real, differentiated harm against an identifiable person or group that can be resolved in court? Individuals do have standing to sue when redistricting results in grossly unequal divisions of population or when the redistricting is based on racial discrimination. In contrast, individuals do not have standing to sue when redistricting results from political gerrymandering. In explaining this distinction, this blog post analyzes: how gerrymandering works, a brief history of gerrymandering, an analysis of which parties engages in gerrymandering more, a short explanation of judicial standing, the lack of judicial standing within political gerrymandering claims, a description of racial gerrymandering, and the differences in standing between political and racial gerrymandering claims. The blog then ends with a short look into the future of gerrymandering.
How Does Gerrymandering Work?
Gerrymandering is the process of redrawing district lines in order to give one party more representation than another party. By redistricting, a political party can merge together or break up groups of voters such that the newly grouped voters cannot substantially impact the election or vice versa.
For example, assume a state has 50 voters that corresponded to five seats in the House of Representatives. If the state would be divided into five districts based on population—one district for each seat in the House, then each district would vote for one member of Congress. Now imagine 30 voters are registered for the Orange Party and 20 voters are registered for the Purple Party. In MODEL 1 (below), the districts are divided evenly so that three districts would likely vote for the Orange Party candidates and two districts would likely vote for the Purple Party candidates. Under this model, the representation of the state is equal because the state would be represented by three Orange Party candidates and two Purple Party candidates.
In MODEL 2, the districts have been divided in a manner that Orange Party wins all five seats. Although 40% of the state voted for the Purple Party candidates, the Orange Party won all of the seats. This is because each district had more Orange Party voters than Purple.
MODEL 3 is a type of gerrymandering that draws a lot of attention because it unfairly and unequally skews the results of the election. In MODEL 3, by drawing very abnormal district lines, the Purple Party would obtain three seats in the House, while the Orange Party would only have two seats. Even though 60% of the population voted for the Orange Party, the Purple Party retains majority representation in the House.
MODEL 1 MODEL 2 MODEL 3
The 2012 North Carolina elections for the House of Representatives is a real-life example of the MODEL 3; 50.5% of citizens voted for Democrats and 48.7% voted Republican. North Carolina had 13 seats in Congress at that time. In an equally represented state, seven seats would have been given to the Democrats and six seats to the Republicans. However, after some creative redistricting by the Republican Party, the Republicans ended with nine seats and the Democrats only with four. The picture below illustrates North Carolina’s 12th district during the 2012 election. Notice the odd shape of the districts after some creative gerrymandering.
A Brief History of Gerrymandering
Gerrymandering is not a new fight between Democrats and Republicans. The fight for political power through gerrymandering began in the election of 1812. The governor of Massachusetts, Elbridge Gerry, redistricted Massachusetts to help the Democratic-Republican Party win more seats than the Federalist Party. After the election, the Federal Press ran a political cartoon showing the salamander-looking district lines. Thus, the name gerrymandering was born.
Gary Cox explains in his book Elbridge Gerry that gerrymandering continued throughout the century without judicial intervention. It was not until the 1962 landmark case Baker v. Carr that the court decided that gerrymandering cases were justiciable—meaning the court could hear a case concerning the issue. Between the years 1960 to 1990, the courts heard a string of cases regarding gerrymandering. One of the most significant cases was the 1964 Supreme Court case Wesberry v. Sanders. Here, the court mandated that states’ districts had to be approximately equal in population. Another way the federal government took steps to limit the power of gerrymandering was through the Voting Rights Act of 1965, which required states that had been historically discriminatory in their voting practices to request permission from the federal government before making any changes to their voting procedures. Additionally, the Supreme Court sought to reduce the power of gerrymandering in its own way through the creation of threshold factors to determine when a district needs to be redrawn (See Thornburg v. Gingles).
While many efforts have been made to combat gerrymandering through legislation and judicial review, gerrymandering continues to exist in the United States. Given the persistence of this problem, an important question to ask is who has standing to sue; in other words, who has the right to be heard in court?
A Symmetric Problem—Do Both Parties Engage in Gerrymandering?
Despite the continued use of political gerrymandering across the country, many people claim the effects of partisan redistricting are not significant because both Democrats and Republicans take part. The contention is that because both sides participate, the overall influence of gerrymandering on representation is slim to none. Therefore, it becomes a zero-sum game. Certainly, it is true that both major parties are potentially motivated to gerrymander. According to statistician Nate Silver, members of Congress from both parties are increasingly insulated by the heightened polarization of party affiliation within their districts. This is illustrated by the image below. This rise in ever-wider victory margins is strong evidence of motive for gerrymandering by both sides to secure “safer” elections for their candidates and lower chances of loss.
The question then becomes: though both parties participate in gerrymandering, does one party do it more? Statistical calculations by Princeton professor Samuel S.-H. Wang after the 2012 election shows asymmetry of use of political gerrymandering, with Republicans employing the technique in greater proportions. (See his article for an explanation in greater detail on Professor Wang’s analysis). In developing this theory, his article suggests that a simple tell for gerrymandering is when there is not a “representative” outcome in an election or, in other words, when the party receiving more votes does not receive more Congressional seats. Professor Wang uses Pennsylvania as an example of this phenomenon. With the broad methodology he developed, Professor Wang ran 1,000 “simulated delegations” for Pennsylvania. He found that most potential redistricting would have resulted in a fairly equitable Congressional delegation. Taking the popular-vote split (50.7% D, 49.3% R) in the state’s 2012 election, he explains that within his simulation the likely outcome was eight seats to the Democratic Party and ten to the Republican Party. The actual outcome was five seats to thirteen, respectively. Only one of Professor Wang’s 1000 simulations led to such a severe and lopsided split.
Applying this method across the board, Professor Wang found seven states where the partisan discrepancy was particularly high after redistricting: Pennsylvania, Ohio, North Carolina, Michigan, Virginia, Illinois, and Indiana. For these states, use of gerrymandering by Democrats resulted in an increase of 1.7 seats, while use by Republicans resulted in an increase of 13.2 seats. In effect, the net result of gerrymandering by both parties resulted in an increase of 11.5 seats for Republicans. While Professor Wang’s study could not conclusively account for all potential influences on gerrymandering, his work remains strong empirical evidence that Republican use of gerrymandering outweighs use by Democrats.
What is Standing to Sue—A Brief Introduction
Standing is a hurdle that every case must overcome in order for it to be heard in court. An individual may only sue in court if he or she can show that a personal legal interest has been invaded by the opposing party. If standing is not found, the claim can either be dismissed or revised to show standing.
The function of standing is to ensure courts hear cases with concrete issues rather than issues that are too abstract or speculative. It acts as an initial check before reaching the merits, filtering out the cases that cannot meet the requirements. Further, it acts as a check on the judiciary, preventing courts from hearing cases that would better be resolved through the political processes. This limitation helps to ensure the judicial branch does not overstep its bounds. Finally, standing helps filters cases where the injuries suffered by the plaintiff are not connected to the injurer and there is no realistic chance of relief. Standing aids efficiency and allows the courts to be a first line of defense against meritless lawsuits.
In Allen v. Wright, the court concluded that an inquiry into standing at the federal level requires an “examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” In practice, courts usually use a three-element test to determine if parties have standing. First, the plaintiff must have suffered an “injury in fact,”— an invasion of a legally protected interest that is (1) concrete and differentiated, and (2) actual or imminent. Second, there must exist a causal connection between the injury and the complained action. The injury must be fairly traceable to the defendant’s actions, rather than the actions of a third party not in the dispute. Third, the injury must have an avenue for judicial remedy that is likely, rather than merely speculative. It is the burden of the party invoking federal jurisdiction to establish these three elements.
For example, courts have held that voters in malapportionment cases have standing to sue because they have an injury in fact. Malapportionment is when districts are drawn to encompass excessively varying numbers of individuals. For instance, a voter is victim to malapportionment when he or she is a part of a district with a population of 100,000, while another district in the same state only has 5,000 people. Since both districts elect one representative, the voter in the district with 100,000 people has a much weaker vote than a voter in the 5,000 person district. The court held in Reynolds v. Sims that voters from malapportioned districts had standing to sue because their 14th amendment equal protection rights were violated in a concrete and differentiated manner. The voters’ strength was weakened compared to other citizens within the state. Additionally, this invasion of a legally protected right could be clearly measured in order to differentiate the injury from citizens in other districts. The court explained that districts need to be roughly equal in population in order to preserve the 14th fourteenth amendment rights of voters. This is known as the “one person, one vote” principle.
Standing is closely intertwined with the case or controversy requirements. As stated in Article III, section 2 of the Constitution, the judicial power shall extend to enumerated cases and controversies. Every case that proceeds to be heard in court must have basis in a case or controversy. In other words, each party must have “skin in the game”; there must be a disputed issue to be heard. This requirement parallels standing in that it ensures disputes are heard on the basis of concrete allegations, rather than hypothetical, abstract, or speculative ones. Finally, this requirement allows courts only to hear suits rooted in real injury, rather than futuristic or hypothetical injuries.
What is Racial Gerrymandering?
Racial gerrymandering is the process of grouping or separating specific racial groups into districts to ensure that individual votes do not have any meaningful impact in elections.
The Supreme Court has held in several cases that there is standing to sue for racial gerrymandering claims. In Shaw v. Reno, the Supreme Court ruled that “the deliberate segregation of voters into separate districts on the basis of race violates their constitutional right to participate in a ‘color-blind’ electoral process.” In Miller v. Johnson, certain districts’ configurations, made up largely of minority voters, were rejected due to the fact that their shapes were so “irregular” or “bizarre” that they could only have been drawn with racial implications. The Supreme Court ruled, “‘absent extraordinary justification’ . . . [a state may not] separate its citizens into different voting districts on the basis of race.”
Is Standing for Political Gerrymandering Different from Racial Gerrymandering?
The question for standing is different between racial and political gerrymandering because the injuries associated with these claims are not the same. Unlike racial gerrymandering claims, political gerrymandering claims do not have standing because they lack (1) a legally protected interest and (2) their injury is not differentiated from the general public.
Legally Protected Interests
Primarily, victims of political gerrymandering do not have standing because they do not have a legally protected interest that can be injured. In contrast to political gerrymandering, individuals affected by racial gerrymandering have a legally protected interest under the 14th Amendment Equal Protection Clause. The Equal Protection Clause states that no person shall be discriminated against because of his or her race. In contrast, nothing in the Constitution guarantees individuals equal voting power based on political party preference. The Supreme Court supported this view in Davis v. Bandemer:
The Equal Protection Clause. . .does not confer group rights to an equal share of political power. Racial gerrymandering claims are justiciable because of the greater warrant the Equal Protection Clause gives the federal courts to intervene for protection against racial discrimination.
Racial gerrymandering is also a violation of the 15th Amendment, which states: “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” When a racial group is purposely redistricted to prevent them from having an influential vote, their vote is made irrelevant. This could be considered an “abridgement” of their right to vote, which is in direct violation of the rights guaranteed by the 15th Amendment. This is another injury of a legally protected interest that affords standing to sue in racial gerrymandering cases that is not applicable in political gerrymandering cases.
Differentiated Injury or a Generalized Interest?
Plaintiffs typically do not have standing to sue if they make claims as taxpayers or citizens. When an individual’s interest in the claim is based solely on his or her status as a taxpayer or citizen, that individual lacks a concrete and differentiated injury because his interest in the problem is not different from that of any other citizen or taxpayer. Thus, these claims are usually only seen as a “general grievance” that is “common to all members of the public.” Like taxpayers and citizens who make claims, voters who make political gerrymandering claims do not have standing because their claims are not differentiated; the claims are nothing more than generalized grievances common to all members of the public. However, racial gerrymandering claims are more than generalized grievances because they have injuries that are not common to all members of the public.
Political gerrymandering claims by voters are seen as a “general grievance” because all voters, regardless of political affiliation, are exposed to the injury of political gerrymandering. This is because all voters are prone to injury by political gerrymandering because both Republicans and Democrats take part in political gerrymandering. In addition, voters can be exposed to political gerrymandering at any time because voters can always change their political affiliation. For example, since a Republican voter can change to a Democrat in a district where democratic voters are subject to diluted votes from redistricting, that voter has the potential to be exposed to this political gerrymandering at any time.
On the other hand, racial groups have a differentiated claim because they are not suffering a general injury as a voter but a personal, specific injury as a racial minority—racial discrimination. For example, the entire general public can switch political parties and be exposed to political gerrymandering at any time, but members of the general public can never switch his or her race and be exposed to discrimination based on being part of an ethnic minority.
Looking to the Future
In light of the continuing employment of gerrymandering by major political parties, concurrent with the seeming lack of remedy within gerrymandering cases, the overall problem created by gerrymandering might seem discouraging and irremediable. Another factor potentially affecting the availability of solutions to political gerrymandering is that the court lacks a “manageable standard” to decide at what point redistricting amounts to political gerrymandering. In other words, there is not a clear way to measure when redistricting is acceptable and when it goes too far. However, this could change in the near future. As new technology emerges, there are more advanced empirical methods available to determine when a district that has be subject to unfair gerrymandering. For example, a court in Wisconsin has recently applied an “efficiency gap” method for objectively deciding what counts as political gerrymandering. The efficiency gap is a mathematical formula that measures the amount of votes that were wasted due to gerrymandering. The method employed by Wisconsin has already been challenged in court and will likely be heard by the Supreme Court this term. With constantly evolving technology and methods of analysis, it should only be a matter of time before courts can apply a sufficient standard to help distinguish and prevent unfair redistricting for political gerrymandering purposes.
Additionally, some states have developed a way to combat gerrymandering outside of judicial intervention. For example, an Arizona ballot initiative transferred the authority to draw election districts from the Arizona State Legislature to a nonpartisan redistricting commission (the Arizona Independent Redistricting Commission, or AIRC). In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court upheld the right of Arizona voters to divest redistricting power to an independent body. Such independent commissions, implemented on a large-scale basis across the country, would greatly reduce the amount of political gerrymandering at use nationwide. This would result in fairer elections and a more accurate representation of voters.