Supreme Court to Consider the Politics of Redistricting

US NEWS | March 25, 2019

MARYLAND’S 6TH Congressional District hangs by a narrow geographical thread, connecting rural, GOP-friendly areas to the west with a splotch of Democratic-dominated Montgomery County to the southeast, making the district one which a Democrat could – and did – wrest from a 20-year GOP incumbent after Democrats redrew its lines in 2011.

That was also the year Ohio Republican state lawmakers met secretly in a hotel room to produce a map favorable to the GOP, ultimately producing a plan that would result in three-quarters of congressional seats being held by Republicans after the 2012 elections, despite the fact that the party’s candidates had only won just over half of votes statewide.

North Carolina Republicans didn’t bother trying to hide their partisan intentions when they drewnew congressional lines in 2016, after a previous map had been deemed unconstitutionally based on race. It was a political map, a Republican redistricting committee leader said at the time, grumbling only that it was impossible to draw lines that would result in a 10-2 GOP congressional delegation majority instead of the 9-3 advantage the GOP got. Last year, while nearly half of voters cast ballots for Democrats in North Carolina, the GOP kept its 9-3 congressional delegation advantage.

It’s been a long-held view in political circles that when it comes to gerrymandering congressional and state legislative district lines, everybody does it. State lawmakers, who generally draw the lines of their own, and of congressional, districts tend to protect their jobs by making incumbent-favorable maps after decennial census counts. In recent redistricting efforts, the exercises have been more partisan, with the parties in power in the states finding ways to draw districts to weaken the other party’s chances of winning both state and federal seats.

But that trend may be coming to an end, with outraged citizens in both parties pushing for changes through the courts and through state referendums. The Supreme Court on Tuesday is scheduled to hear arguments in the Maryland and North Carolina cases. If plaintiffs prevail, it would mark the first time the high court has thrown out redistricting maps because they were simply too political and partisan to be fair to voters. Not only may voters be thwarted in efforts to elect a person of one party or the other to office, but the lack of truly competitive races discourages people from showing up to the polls at all, experts say.

“Gerrymandering has been with us as long as we’ve been a nation – you can trace it back to Patrick Henry trying to gerrymander James Madison out of Congress,” says David Daley, a senior fellow at FairVote and author of a book on gerrymandering, “Ratf–ked: Why Your Vote Doesn’t Count.” But now, “we have a problem with toxic partisan gerrymandering, which in many states has never been worse,” Daley adds.

The combination of a highly polarized political environment with fast-developing technology allows mapmakers to find out detailed information about voters and draw lines with surgical precision, giving them “districts that can reliably produce the results they want for an entire decade,” Daley says.

Just decades ago, redistricting officials – state legislatures and governors in many states, special commissions in others – could collect basic information on voters, such as party affiliation, race and ethnicity and history of turning out to vote, says Michael Li, senior counsel at the Brennan Center for Justice and an expert on gerrymandering. The officials would then use it to draw lines that met legal standards specifying districts must be “compact” and can’t be deliberately drawn to weaken racial minorities but still gave a boost to certain candidates.

Now, officials can collect a slew of detailed information on voters, including magazine subscriptions, gun ownership, consumer purchases and other characteristics that give them a strong indication of how someone will vote – even in states where it’s not permitted to consider political party affiliation in drawing district lines, he says.

Republicans, with a highly successful project called REDMAP, spent $30 million to flip nearly 1,000 state legislative seats and party control of 22 legislative chambers nationwide in 2010. That gave the GOP lopsided power in drawing both state legislative and congressional lines after the 2010 census – and they had the modern technology to benefit even more, Li says.

Most states use a software called “Maptitude,” the product of the Massachusetts-based company Caliper Corporation. The company does not provide detailed information on voters, except U.S. Census information, but it allows users to plug in the data they’ve collected and draws maps accordingly.

“We joke that even a politician can do it,” says Howard Slavin, Caliper’s president. Caliper does not have a position on using the product for partisan gerrymandering anymore than Microsoft might have a view of how people use Word, Slavin notes. “It’s used by everyone for their own purposes.”

The result after 2010 was that Republicans were able to protect their congressional majorities and stem losses: An Associated Press analysis of the 2018 elections found that while Republicans indeed lost their House of Representatives majority, they held onto about 16 seats they otherwise would have lost had lines not been gerrymandered.
And after next year’s census and redistricting?

“What seemed like Star Trek in 2011 will seem like child’s play in 2021. Technology’s getting that sophisticated,” Li says, adding that officials who once could produce just a few potential maps can now easily come up with thousands of possibilities.

“If the Supreme Court doesn’t do anything, that will be taken as a signal by people that they can go to town and do whatever they want,” he says.
Reformers point to the massive GOP gains but say it’s a function not of party but of power.
“Democrats lost everything in 2010, so Republicans had the pen” in 2011, Li says. “If the shoe were on the other foot, I’d be talking about them.”

The cases before the high court on Tuesday offer what could be a pivotal opportunity to put the brakes on both parties, says Kathay Feng, national redistricting director for Common Cause.
“The Supreme Court has said on numerous occasions that partisan gerrymandering is bad, but we haven’t yet figured out the right standard for declaring it unconstitutional. In the absence of a rule, many political operatives felt they had a green light to speed as fast as they wanted to,” she says.

Citizens in both parties, meanwhile, have pushed for legislative and legal challenges in other states. In Pennsylvania, a challenge to a GOP-drawn map on state constitutional grounds ended up with a state court forcing a re-write. The previous map had been drawn to achieve a 13-5 Republican congressional delegation majority. The new map, in effect for the 2018 elections, resulted in a 9-9 split.

California, with its Citizens Redistricting Commission, is held up by reformers as a model for the nation. The panel, made up of rank-and-file California residents, has been lauded by the Public Policy Institute of California and other groups for producing some of the most competitive districts in the nation.

Five states – Ohio, Michigan, Colorado, Missouri and Utah – approved referendums last year to reform the redistricting process. And others have gotten into the map-drawing game, providing ways for non-legislators to play around with congressional district lines and come up with more equitable possibilities.

“We’re trying to have a positive impact on fighting gerrymandering, giving people a way to analyze maps, (learning) how to score maps,” says Dave Bradlee, a software expert and former Microsoft employee who is one of the creators of “Dave’s Redistricting” app “It’s people vs politicians.”

Citizens who once might have written off partisan redistricting as just another distasteful element of politics are mobilizing now like never before – and in a bipartisan fashion, Feng says.

“The reason why people have finally gotten woke to the problem is that it’s led to a fundamentally dysfunctional Congress and state legislatures. There is no longer dialogue,” Feng says. “We think there is a unique opportunity for the Supreme Court to draw a very clear line to say that gerrymandering for partisan gain is not acceptable when Democrats do it, and it’s not acceptable when Republicans do it. These cases pair up in a nice way,” Feng says of Tuesday’s arguments before the high court.

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