Members Only | October 21, 2021 | Reading Time: 4 minutes
What is gerrymandering and why does a democracy allow it to be used to protect white power?
A legal history of congressional district map-making.
Maps are being redrawn all over the country in response to last year’s census. Unfortunately, the process currently leaves a lot of room for partisan gerrymandering. It is the first time since the passage of the Voting Rights Act that district maps will be drawn without the preclearance requirement of the Voting Rights Act for many states.
A 2019 Supreme Court case also makes it impossible to bring gerrymander cases to federal courts on the basis of partisanship. Luckily some states have passed redistricting reforms since the last census. Others have divided legislatures where partisan abuse is less likely. But there are states that will attempt to draw maps in blatantly partisan ways, particularly to protect Republican political power.
The practice of manipulating voting districts for political power — ie, gerrymandering — wasn’t invented in the US but it’s hard to say we didn’t perfect it. In 18th-century Britain, districts called “rotten boroughs” were drawn with few voters to ensure certain representatives were elected to Parliament. Gerrymandered districts have existed since the inception of US congressional districts, but initially the districts were still drawn in relatively normal ways.
Luckily some states have passed redistricting reforms since the last census. Others have divided legislatures where partisan abuse is less likely. But there are states that will attempt to draw maps in blatantly partisan ways, particularly to protect Republican political power.
The term “gerrymander” was coined after an 1812 Massachusetts state senate district map was drawn and signed into law by then Governor Elbridge Gerry. The map drew a long thin district that sliced up Essex County, which usually voted for the Federalist Party, in order to help the Democratic-Republicans. As a result, a county that had elected five Federalist representatives elected three Democratic-Republicans and only two Federalists. Federalists won over 1,500 more votes statewide but elected only 11 representatives while Democratic-Republicans elected 29. Ultimately, the extreme district map caused a backlash and Federalists soon regained power and redrew the district map.
The bill was seen as a partisan vendetta by many Federalists and when a satirical cartoon was drawn Elbridge Gerry’s name was used to describe the salamander-like monster. Thus the term “gerrymander” was born. While obviously not the first time districts were drawn in a way to consolidate political power, the Massachusetts map was the first example of a district drawn in a clearly ridiculous way.
In 1842, Congress passed the Apportionment Act. It required districts to be geographically contiguous but there’s little evidence it was enforced. Once Black men gained the right to vote, the use of gerrymandering grew with a vengeance. States redrew their maps more often after the Civil War to advantage the Republican and the Democratic parties. Democrat-controlled Ohio redrew its congressional districts six times between 1878 and 1890 to ensure Democrats were in control of the state. In 1888, Pennsylvania redrew its map so Republicans could retain their majority in the state House.
After the Civil War, gerrymandering not only caused partisan results but was used to disenfranchise Black voters, specifically as a response to the Black political power gained during reconstruction. In 1876, a Texas newspaper commented that the racist gerrymanders disenfranchised Black voters by “indirection.” Mississippi created a “shoestring district” and South Carolina drew a “boa constrictor” district in order to disenfranchise Black voters. This “boa constrictor” district linked every Black precinct that could be connected by even the smallest land continuity. By isolating Black voters , the violent intimidation or outright fraud needed to disenfranchise them became much easier. Along with poll taxes, literacy tests and all-white primaries, racist gerrymanders successfully disenfranchised Black voters in the South until the civil rights movement.
In the 1960s, the Supreme Court issued a number of opinions dubbed the “redistricting revolution” to address gerrymandered districts. In 1960, the court found that district lines drawn with the intention of disenfranchising Black voters violated the 15th Amendment in Gomillion v. Lightfoot. Justice Frankfurter’s opinion held that an Alabama act that created a Tuskegee district that excluded nearly all Black voters effectively denied people their vote to vote on the basis of race. Overturning the 1946 decision Colegrove v. Green, which held that malapportioned congressional districts were not the purview of the federal judiciary, Baker v. Carr in 1962 held that redistricting issues could be brought to federal courts under the 14th amendment. Two years later the Supreme Court decided two cases, Wesberry v. Sanders and Reynolds v. Sims, requiring that electoral districts be established based on equal population and the principle of “one person, one vote.”
Under the proposed Freedom to Vote Act, this type of gerrymandering would not be allowed and neutral redistricting standards would be imposed. The act also would provide more power to courts to adjudicate issues with gerrymandering more quickly.
While important precedent that forced maps to be redrawn, the requirement of uniform population did not stop districts from being drawn in bizarre shapes to protect partisan power. In 1993, in Shaw v. Reno, the Supreme Court held that a bizarrely shaped district is strongly indicative of “racial intent” and therefore will be struck down for violating the Equal Protection Clause if no other reason for the shape can be given. While certainly a step in the right direction, Shaw didn’t exactly end the practice of drawing ridiculously shaped districts. Additionally, Shelby v. Holder will likely make it easier to get racist gerrymanders into effect because preclearance is no longer required.
In 2019, the Supreme Court dealt a huge blow to efforts at fixing partisan gerrymandering. In Rucho v. Common Cause the court held that partisan gerrymandering is not an issue for federal courts to consider and is only the purview of state courts or legislative action. Under the 2017 decision Cooper v. Harris, cases can bring issues of racist gerrymandering to the federal court system, but they have to prove race was the predominant factor in drawing the district and that the state didn’t have a compelling state interest, like protecting minority voting rights at which time race can be a consideration.
Two weeks ago, Texas released a redistricting map that prompted a lawsuit alleging intentional discrimination against Hispanic voters. Since the lawsuit concerns racist gerrymandering and not just partisanship, it can be brought in federal court. But it’s not yet clear how it will be received. Under the proposed Freedom to Vote Act, this type of gerrymandering would not be allowed and neutral redistricting standards would be imposed. The act also would provide more power to courts to adjudicate issues with gerrymandering more quickly.
Unfortunately in the most recent Senate vote, the bill was blocked in a 51-49 vote because Democrats don’t have enough votes to override the filibuster. Republicans are blocking the bill but the current redistricting reform is actually based on a 30-year-old Republican proposal. Senate Majority Leader Chuck Schumer is still promising to fight for the bill but we likely will continue to need West Virginia Senator Manchin and Arizona Senator Kyrsten Sinema to agree to filibuster reform if we have any hope of passing the legislation.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.