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G, Gerrymandering,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 November 2020


named for a salamander-shaped district devised by Massachusetts governor Elbridge Gerry in 1812, is the practice of drawing the boundaries of a political district to the advantage or disadvantage of some person, party, or other group. Every winner-take-all district is somewhat gerrymandered in this sense, but common usage confines the term to districts that are blatantly discriminatory or exotically shaped. The normal techniques for manipulating a group’s so-called effective votes are “cracking” and “packing,” dispersing the group among several districts or concentrating it in a single, overly safe district where all its votes over 51 percent are wasted. The least waste occurs when the group is packed just enough to win the district. The Supreme Court has twice detected and struck down egregious, exotically shaped gerrymanders, in *Gomillion v. Lightfoot (1960) and again in *Shaw v. Reno (1993). Between these landmarks it has typically found gerrymanders impossible to detect. In Gomillion, the city of Tuskegee, Alabama, had drawn up an “uncouth, 28-sided figure” excluding almost every black from voting in the city, while keeping every white voter within the city’s boundaries. The Court voided the new boundaries and opened the way for *Baker v. Carr (1962) and decades of wrestling with a new “fundamental principle” of the Constitution requiring “equal representation for equal numbers.” Justice Felix *Frankfurter, dissenting in Baker, warned that the principle was a “quagmire,” too complex and political to be properly enforced with simple, clear, objective standards. This objection is called the “standards problem” (see reapportionment cases; judicial activism). The Court applied the principle vigorously to equalize the population of districts, forcing otherwise reluctant legislatures to re-gerrymander after every census, but it usually shrank from applying it to the resultant gerrymanders. Four leading cases—Wright v. Rockefeller (1964), *United Jewish Organizations of Williamsburgh v. Carey (1977), *Davis v. Bandemer (1986), and Badham v. Eu (1988)—illustrate the Court’s caution. Wright and United Jewish Organizations both involved racial gerrymanders, concentrating African-American and Puerto Rican populations in New York City into “racial boroughs.” Had the minority voters been divided among adjacent districts, they could have had majorities in more than one district.

In Wright, the African-American plaintiffs wanted to achieve more effective voting power for blacks through deconcentration. However, the black incumbent sided with the defendants and argued that it was better to have one strong, safe black seat (his) than two weaker, marginal ones. The Court declined to intervene against the obvious racial gerrymander, claiming it could see no evidence of racial discrimination. In United Jewish Organizations, the U.S. attorney general had ordered the state to create two new nonwhitemajority districts by dismembering a Hasidic Jewish district. The Jewish plaintiffs objected to the explicit racial quotas, which they argued cost them voting power, but the Court ruled that the quotas (p. 389) did not constitute discrimination against the Jews. As in Wright, the evidence of discrimination was strong, but the rules for interpreting it were uncertain (see race and racism).

Davis and Badham were both partisan districting cases, where the “in” party, by gerrymandering, had given itself half again as many seats per vote as the “out” party. In Davis, the Court warned in dictum that egregious gerrymandering that would “consistently degrade a voter’s … influence on the political process” (p. 132) would violate the *Equal Protection Clause, but it did not find Indiana’s suppression of Democrats, in one house in one election, egregious enough to be a constitutional violation. Although Badham involved several successive elections and a pro-Democrat, pro-incumbent gerrymandering so tight that virtually no legislative district changed party hands, the Court declined to hear the case.

In principle, liberals often favored *“affirmative action” (i.e., packed) racial gerrymanders, whereas conservatives either opposed them for placing group rights ahead of individual rights, or opposed national intervention because of the standards problem. Passionate concerns about racial gerrymandering often coexisted with deep indifference to partisan gerrymandering. And partisan interests seldom coincided with party principles. Often, liberals would win the battle over principle but lose power for doing so. In City of *Mobile v. Bolden (1980), the Court refused to strike down a multimember district, which had the effect of diluting the black vote in the city, absent a showing of intent to do so. Liberals were outraged, and in 1982 they amended section 2 of the *Voting Rights Act of 1965 to ban any practice of procedure “which results in a denial or abridgement” of a citizen’s voting rights, the so-called “results test.” The amendments greatly expanded the act’s reach, formerly confined to simple issues of individual suffrage, to include complex group rights of representation as well. They led to the wholesale creation of affirmative action racial gerrymanders, at great cost to the liberals who were responsible for their creation. Packing black Democrats into ghettoized districts predictably wasted their votes and contributed to the Democrats’ loss of the House of Representatives to the Republicans in 1994 and since. The Supreme Court’s response, striking down one egregious affirmative action racial gerrymander in Shaw, while leaving many others standing and not repudiating Wright, was also true in a way to conservative principles but much less costly to the conservatives in Congress. “Reapportionment,” said Justice Sandra Day *O’Connor, “is one area in which appearances do matter.” Despite Shaw, the standards problem remains unsolved, and racial packing continues, along with seemingly endless litigation attacking or defending it.

Some observers blame partisan and incumbent-protecting gerrymanders (of which packed racial gerrymanders are a subset) for the very low turnover of House representatives and state legislators and for the polarization, the freezing of the status quo, and the insulation from changes in public opinion that go with safe seats. California has provided extreme examples of gerrymandering and of attempts to control it and its effects. Frustrated with entrenched, unresponsive legislators, California voters have turned again and again to initiatives to get their way, including term limits and electoral reforms to curb unwanted gerrymandering. Initiatives are a clumsy, messy, and haphazard way to legislate, but Californians have often found them more responsive than their much reformed, artfully gerrymandered legislature.

See also elections; fair representation.

Ward Elliott, The Rise of Guardian Democracy (1975). Samuel Issacharoff, Pamela Karlan, and Richard Pildes, eds., The Law of Democracy: Legal Structure of the Political Process (2002), chap. 9, 10. David Lublin, The Paradox of Representation: Racial Gerrymandering and Minority Interests in Congress (1997). Anthony Peacock, ed., Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights (1997). Abigail Thernstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights (1987).

Ward E. Y. Elliott