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Defining Fair Voting Districts to Solve Partisan Districting

Valasandra Hightower, 5 December 2023

Partisan districting (gerrymandering) is the act of concentrating voting power to favor a political party, resulting in an imbalance of voter representation by state senators as well as representatives at both the federal and state levels of government. Though this practice has long been considered antithetical to democracy, and despite many attempts at the state and federal level to restrict its application, it remains a routine part of the election process in many states. When representatives are allowed to select their voters via partisan districting, there is a corresponding reduction in accountability, as the opinion of the majority becomes diluted (Zuckerman; The Times Editorial Board). States that have been controlled by a single party for long periods of time tend to rely on district packing to keep that party entrenched in power (Dawkins). In the short term, this results in the selection of representatives that do not accurately reflect the majority of the voting population. But those representatives affect public policy, legislation, and judicial appointments. These actions have longer-lasting effects, often measured in decades. The impact of gerrymandering is not limited to individual elected representatives but has also resulted in dysfunctional state governments, imbalanced representation that flows up to all branches of the federal government, and unpopular legislation harmful to American citizens. Unless a balance of representation is restored via fair districting, the practice risks creating a breaking point for democracy, creating a ruling class that cannot be held accountable to its constituents. Fair districting (drawing district lines in a way that does not favor incumbent political parties) has long been proposed as the solution to this problem. Several states have successfully restored their representational balance via voting referendums, legislation, and state Supreme Court intervention that impose fair districting rules, which are typically implemented by non-partisan commissions. However, despite successful referendums, some states have encountered barriers to these efforts in the form of legislative and judicial actions that overturn or ignore the maps drawn by these independent commissions. This resistance is backed by the argument that, since demographics are complex, drawing “fair” maps is an impossible task. Although there may be some truth to that assertion, the most gerrymandered districts are drawn using highly precise data science models to select the voting population of those districts. Logic dictates that these same methods can also be used to create balanced districts, resulting in “Fairmandering” (Lefkowitz).

The practice of gerrymandering has been employed in state governments for nearly as long as the republic has existed. Controversial from the start, dire warnings about the constitutional capacity of individual states to govern their own election rules were published only two months after the Constitutional Convention (Brutus 1787). This warning drew a sharp rebuke from Alexander Hamilton, who responded, “every government ought to contain in itself the means of its own preservation” (Hamilton 1788). Despite the controversy, Article 1, Section 4, Clause 1 of the Constitution opened the door to modifications of election rules at the state level (United States Congress).

By the mid-1800s, the court system had heard a variety of cases arguing that partisan districting was unconstitutional under the equal protection statutes. However, neither the state nor federal courts were able to establish standards for enforcing non-partisan districting that could withstand scrutiny under established legal frameworks (Foley 656). Prior to the Civil War, a variety of extra-judicial solutions were attempted, enacting federal legislation to address the problem, but as Foley points out, “by mandating single-member districts, Congress only exacerbated the problem” (Foley 714). Individual states also attempted to remedy the issue by prohibiting specific methods of revising district maps, but comprehensive solutions proved elusive at the time. In 1967, Congress passed a single-member district mandate that had far-reaching consequences on US elections, although some now question the legal standing of the legislation (Ross and Anderson). Plier points out that this mandate resulted in “plummeting levels of electoral competition and fierce partisan polarization” (Plier 1724).

The downstream effects of imbalanced district representation also carry over to federal representatives, who wield broad power over legislation, budgeting, committee selection, and judicial appointments at the national level. The policies enacted at the federal level then directly affect even those states that employ fair districting. In many cases, the power imbalance caused by gerrymandering is leveraged to enact highly unpopular legislation at the state and federal levels, as well as to stall appointments and legislation from the opposing party (Bauer, Wisconsin’s Democratic Governor). The current composition of the Supreme Court is a prime example of the long-term outcome of using imbalanced representation as a political tool. The majority of the court is now composed of highly conservative members who are current or former members of the Federalist Society. This court was responsible for several recent unpopular decisions, including overturning Roe vs. Wade (Quince and Rikleen), an action that does not reflect the majority of American voters (Pew Research Center). This court now holds jurisdiction over the fate of the 1965 Voting Rights Act that prevents voter suppression based on racial discrimination (Cohn).

The majority control over appointed positions does not end at judicial appointments. As of November 2023, over 450 critical military leadership positions remain vacant (Jalonick and Baldor; Miller) due to the religious beliefs of a single representative from a highly gerrymandered state (Ford). This blockade on military appointments is unprecedented and has resulted in vacancies at the highest level of all branches of the United States military, affecting recruiting and military readiness. Another non-democratic outcome in several gerrymandered states is the practice of state legislatures stripping powers from the executive branch in order to prevent change. This has occurred in Wisconsin (White), North Carolina (Riccardi and Robertson), and attempted in Michigan (Associated Press; King). A more extreme risk of this upset in the balance of power is the looming possibility of a Constitutional Convention. To date, 28 states have called for a convention in the past, and the current number stands at 20 of the 34 required for the two-thirds majority (Hulse). Such an act would result in the dissolution of the United States Constitution, significantly impacting the rights of every citizen.

The downstream effects of gerrymandering demonstrate an increasing lack of accountability resulting from a set of elected officials who are able to act in their self-interest rather than that of their constituents (Robertson). Several solutions have been proposed to this problem, including the establishment of independent, bipartisan panels and the utilization of mathematical models to support fair districting that results in a balanced representation of the voting population (Congressional Redistricting).

Opponents of fair districting cite the fact that both parties have the legal ability to set districts according to the laws of their respective states. However, state supreme courts, as well as the federal Supreme Court, have ruled that the district packing in several states is unconstitutional. Even so, in Florida, an appeals court recently reversed a lower court decision that prevented the dilution of the representation of black voters (Wasserman). The district map that resulted from this reversal eliminated four Democrat-leaning districts to create a single Republication-leaning district (Crawford). Although some state supreme courts (Ohio, Alabama, and Wisconsin) have recently ruled that district packing is unconstitutional, their corresponding legislatures have defied these rulings by continuing to allow known partisan maps to be used in elections (Aemero et al.). State majority parties in Ohio, Alabama, and Wisconsin have successfully evaded accountability to their judicial branches (Aemero et al.; Lieb), resulting in the selection of extremist candidates (Congressional Redistricting). When equal branches of government are pitted against each other, the resulting gridlock prevents action on the issue by maintaining the status quo.

Despite the opposition, some progress has been made on several fronts. The idea of independent, non-partisan or bi-partisan redistricting commissions has gained traction, and a multi-step path toward implementing such commissions has evolved over the past decade (Greenblatt). Voting initiatives for fair districting have recently passed in several states, at which point the legislature is obligated to pass legislation implementing these independent panels. However, as proven in earlier centuries, such legislation must hold up to contemporary judicial scrutiny, which itself is beholden to the party that appoints judicial nominees (Bauer, Democrats Eye Wisconsin). Thus far, only four states (Arizona, California, Colorado, and Michigan) have implemented such panels in a way that has been upheld by their state supreme courts (Leaverton).

A common argument against legislative action on gerrymandering is that demographics are highly complex and inaccurate; therefore, drawing completely “fair” district maps is an impossible task. A 2013 study by the University of Michigan and Stanford supports this notion in part by asserting that bias in district maps is a phenomenon that naturally develops as populations shift over time (Chen and Rodden). However, the study went on to demonstrate that computer models could accurately predict this bias, suggesting that if bias could be measured, it could also be mitigated. More recently, the Brennan Center for Justice has claimed that attempts to draw fair maps have had mixed results based on the methods used but holds up Michigan as the best example of how fair districting reform can be implemented and enforced while also pointing out several demographics that could be better represented. Further, their study points out several cases, most prominently in Utah, where the reforms left independent commissions as having no real power (Li). Thus, while questions remain surrounding the feasibility of drawing truly fair maps and providing a functional framework for implementing them, several successful attempts have already been made, proving that a solution is possible.

Recently, a team from Cornell and MIT developed a computer model that tests the full range of possible outcomes of adjusting district lines. They found that their “results show that with just using natural districts, those that are of a reasonable shape and neutrally generated, [they] can change the partisan composition of the House of Representatives by about 20%” (Gurnee and Shmoys; IPCO22). A later publication by the team asserts the impact of gerrymandering as potentially creating permanent majorities for entrenched parties (Gurnee and Shmoys; ACDA21 88). The conclusion is that a “fair” model must lie somewhere between those extremes, and as such, a district map can be tested for partisan bias, which has been a main impediment in judicial action on the issue. As the anti-Federalist Papers in 1787 correctly predicted, Congress has “alter[ed] itself by modifying the election of its own members at will and pleasure” (Brutus). In more modern jargon, gerrymandering is “the election process in reverse,” where “politicians choose their voters” (Indiana Chamber of Commerce). District packing is, in fact, the opposite of democracy, effectively breaking federal and state governments by subverting accountability and concentrating power into a single branch of government. Historically, this consolidation of power has resulted in the collapse of nations. Despite historical failures to address the issue of gerrymandering, the recent success of redistricting reform in some states, and the advent of new technology to evaluate the fairness of district maps, it appears that all of the necessary components are now available to implement fair districting nationwide. As demonstrated by Florida, Ohio, Alabama, Wisconsin, and Utah, the only remaining barrier to national districting reform is the political will to allow it. If the practice of gerrymandering continues, the Republic of the United States of America could face the same outcome as the Roman Republic and the Weimar Republic. The future of democracy is at stake, but the gatekeepers are those who benefit from tipping the scales away from it.

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© 2024 Valasandra Hightower