The American experiment began with a revolution. At its core was fair representation, the idea that individuals should be able to exercise control over their government. The Declaration of Independence expresses this idea, with Thomas Jefferson writing, “Governments are instituted among Men, deriving their just powers from the consent of the governed-That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it.”
Since the nation’s founding, equal representation has served as a crucial catalyst for social progress. The 15th Amendment that granted African American men the right to vote was based on this fundamental principle, and the 19th Amendment granting suffrage to women followed under the same premise. The idea that all individuals deserved fair representation, regardless of race and gender, later spurred the civil rights movement, and continues to influence modern political reform across the nation.
In spite of its decisive role in establishing fairness and equality in America, fair representation has recently faced ruthless attacks led by state legislatures. Today’s is an era in which parties, rather than people, pick and choose which votes have more meaning; where elected officials draw partisan lines that prevent voters from doing precisely what the founding fathers intended: altering a destructive government. It is an era in which representatives derive their powers not from the consent of the governed, but from the consent of the dominant political party. It is an era in which, as Karl Rove put it, “He who controls redistricting can control Congress.”
Wisconsin’s 2012 election substantiates Rove’s assertion. Despite winning the majority of the popular vote for candidates for the state assembly, Democrats took just 39 percent of the seats. Though 60 percent of Wisconsin voters sought to abolish the Republican-led legislature by voting in Democratic representatives, that same legislature made such a move impossible two years earlier through extreme political gerrymandering. In doing so, these lawmakers violated not only voter rights in Wisconsin, but the core tenet upon which democratic government rests: equal representation.
In the last 25 years, gerrymandering has become a pervasive national issue by limiting the voting rights of minority groups. Through gerrymandering, the party in control of redistricting attempts to silence the voices of opposing political groups by drawing district lines that either contain or spread thin the minority vote. In doing so, politicians create noncompetitive districts that ensure their party’s success in the following elections. This disenfranchises political minorities, discouraging political activity and creating legislatures that do not accurately reflect public opinion.
The Supreme Court has ruled on gerrymandering twice before, in both cases ruling racial gerrymandering—designing districts to limit the influence of racial minorities—unconstitutional. The court has never, however, ruled a legislative map unconstitutional on the basis of gerrymandering according to party.
One of the most devastating effects of partisan gerrymandering is its impact on the votes of political minorities in districts designed to favor one particular party. In the 2012 election, Democratic candidates won 1.4 million more votes than Republican candidates for the House of Representatives nationwide; Republicans, however, walked away with 33 more seats, maintaining their majority in the House. Though disconcerting, the results were unsurprising: Republicans controlled the redistricting process after the 2010 census.
Though partisan gerrymandering typically intends to reduce the voice of one of the two major parties, another group bears the brunt of collateral damage: independents. Voters who do not identify with either major party are damaged in every case of partisan gerrymandering, as candidates no longer feel the need to cater to independent voters when districts have been drawn in such a way that their party’s voters alone can place them into office. Self-identified Independents make up 42 percent of American voters as of 2016, compared to 29 percent who identify as Democrats and 26 percent who identify as Republicans. With a plurality of voters not identifying with either political party, partisan gerrymandering becomes especially dangerous as it begins to limit the voices of not only minority political groups, but a rising political plurality.
Independents are further ostracized not by the physical lines of the districts, but by the candidates they produce. When candidates are forced to rely on the votes of independents, they tend to move closer to the center of the spectrum to garner votes from both sides, as can be seen from the difference between primary and general elections. While attempting to appeal to their own party in primaries, candidates generally shift their policies to cater to party wings. Contrarily, when competing against a candidate from across the aisle in the general election, candidates typically move closer to the center to gain the support of moderates and independents. Because gerrymandering eliminates the need to move back towards the center, candidates no longer view compromise as crucial to reelection, limiting government efficiency and diluting moderate voices.
Third parties, like independents, also suffer greatly as a result of partisan gerrymanders. In 2014, 58 percent of Americans agreed that a third party is needed in the United States; gerrymandering, however, makes it nearly impossible for third party candidates to come to power. In districts designed to ensure the success of one of two major parties, candidates that do not conform to either ideology are left with an extremely limited, if existent, voter base.
In an interview with the HPR, Todd Hagopian, global marketing director of Illinois Tool Works and prominent Libertarian, said that gerrymandering “definitely hurts third parties.” He noted that third parties would have to “steal a majority of votes from a gerrymandering-aided candidate to have a chance at victory.” The current electoral system is stacked against third parties by first-past-the-post voting and federal campaign regulations. Gerrymandering only exacerbates this by ostracizing potential supporters. According to Hagopian, partisan gerrymandering and the democratic process are “not compatible in any way,” and no politician should have the authority to decide which groups of groups of voters have more power.
As partisan gerrymandering has become more pronounced, opposition to it has grown significantly, particularly among grassroots organizations. These nationwide groups view partisan gerrymandering as a hindrance to the power individual citizens should be granted in a republic. When incumbent politicians are able to essentially draw themselves into office, it hampers the ability of the public to remove inefficient representatives.
One such organization fighting for fair representation is Common Cause, which played an instrumental role in a 2011 nonpartisan redistricting reform in California. Dan Vicuna, head of the redistricting effort for the organization, explained that Common Cause views partisan gerrymandering as “a way politicians prevent the public from holding them accountable for their actions.” Vicuna argued that the process of redistricting should be run by people who have no political stake in the outcome. “More competitive districts force officials to appeal to citizens of the other party,” Vicuna said, “giving greater incentive to cooperate across the aisle with their cohorts in Congress and state legislative bodies.”
While grassroots organizations are making legislative strides, legal organizations like the Brennan Center of the New York University Law School are pushing for change through judicial routes. Thomas Wolf, counsel for the redistricting project at the Brennan Center, explained in an interview with the HPR that partisan gerrymandering “violates at least two aspects of the Constitution: the Equal Protection Clause of the 14th Amendment and the First Amendment.”
In spite of legislative strides made by activist organizations, the judiciary might offer the best opportunity to abolish gerrymandering. On June 19, the Supreme Court agreed to hear Gill v. Whitford, the appeal of a case that challenged gerrymandering for the first time in 30 years on a strictly partisan basis. In November of 2016, a panel of three Wisconsin federal judges deemed the state’s 2010 legislative map unconstitutional on partisan grounds. The State of Wisconsin later appealed the case, and the Supreme Court will rule on the appeal.
Bill Whitford, a retired law professor and one of the plaintiffs in the case, explained in an interview with the HPR that he brought the case because “it became clear that under the existing districting, it was basically impossible for the Democrats to achieve a majority. The wake-up call was the 2012 election.” Whitford also commented that partisan gerrymandering “chills and discourages political activity among partisans of the disadvantaged group because they know they can’t win,” and that it “makes the general election unimportant and the primary much more important, which leads to increased polarization.”
Looking prospectively, Whitford acknowledged that if the Supreme Court rules in his favor, the court will still have to “find the line” that makes a gerrymander too partisan. But his hope is that “redistricting will be used to reinstate the idea that the majority should rule and create competitive seats between parties.” Whitford continued: “I think we have almost the perfect case. Our facts are extremely strong, without going into too much detail. If the Supreme Court turns down our case, it’s hard to imagine the court overruling any redistricting for quite a long time.” The importance of this case is not lost on the Supreme Court either: Justice Ruth Bader Ginsburg commented at Duke Law School that the partisan gerrymandering appeal “is perhaps the most important grant thus far” for the next term.
Should the Supreme Court uphold the Wisconsin appellate court ruling, the redistricting process could be fundamentally altered, leading to dramatic changes in the government as well. By creating competitive districts, candidates would again be forced to appeal to the center, to independents and moderates rather than solely their fellow party members. By eliminating gerrymandering, all votes would have equal power, regardless of location. The disenfranchisement of political minorities would be dramatically reduced, leading to legislatures that more fairly represent the full spectrum of political beliefs, regardless of who holds the majority during redistricting.
Upholding the plaintiff’s verdict in Gill v. Whitford would mark only the beginning of the process of tackling partisan gerrymandering. The primary follow-up question would become how to fairly redraw districts. “Independent redistricting commissions that are designed the right way can have a substantial impact on producing fairer maps,” Wolf of the Brennan Center noted, “but the important thing to keep in mind is that redistricting is a very complex process.”
Wolf is not the only one to advance this suggestion; many are calling for independent commissions to completely remove political influences, similar to a system implemented in California in 2011. The California Citizens Redistricting Commission is a group of 14 citizens who apply and are vetted to minimize political interests on the commission. The body is made up of five Democrats, five Republicans, and four independents or members of a third party. They are required to get citizen input, hold public meetings, and only discuss redistricting in a public setting. Once they draw the lines using computer software, the map requires nine affirmative votes for confirmation, three from each political group in the commission. Feedback on the commission has been overwhelmingly positive, with the new map being used for the first time in 2012.
When Jefferson drafted the Declaration of Independence, the nation sat on the precipice of revolution; today, it sits on a similar edge. Partisan divisions threaten to fracture the nation, and the future is far from certain. In spite of these obstacles, citizens are finding common ground in the same fundamental idea that has united Americans throughout our entire history. It is the same idea that pushed abolitionists and Union soldiers during the Civil War, the same concept that brought together countless suffragettes to secure women’s voting rights and innumerable activists throughout the civil rights movement. It is the same principle that has allowed for unity and progress in the United States for over two centuries: fair, equal representation, the very concept that gerrymandering diametrically contradicts.
The effort to end partisan gerrymandering may not resonate with incumbent politicians, but it has resonated with the American public. The redistricting strategy intended to divide has instead united voters for a common good. Ending partisan gerrymandering will not instantly correct deep flaws in fair representation. But it is a strong step towards legislatures that stop representing the parties and start representing the people.