January 24, 2018-Recently, both the US Supreme Court and state courts have been taking up the highly controversial and highly politicized issue of political gerrymandering–that is the artificial manipulation of voting districts by those in state legislatures to favor the party in power–their own. It’s accomplished by these legislatures creating an out-come determinative “gerry-rigged” voting map that favors one political party over another. This highly controversial “line-drawing” dilutes voting by the non-majority party in state government to help keep the status quo and assure a long tenure for that party–that is, the party in power that stays in power. This tact is one that is seen by many to threaten the “one person one vote” principal laid out in Supreme Court precedent Court’s 1962 decision in Baker v. Carr on legislative apportionment which culminated in the case of Reynolds v. Sims in 1964–elucidating the value of “one person, one vote.”
According to historians, the concept of “gerrymandering” first took place in 1812, when then Governor of Massachusetts, Elbridge Gerry used his position to help thwart the the rise of the Federalist party. To do so, the legislature with the aid of Gerry crafted an ingenious method to disadvantage the Federalists and allow the “Democratic-Republican” party (the precursor of the modern Republican party) to redraw state Senate districts to its advantage. This ingenious plan has since been adopted and utilized around the nation often with the same partisan results that marked its adoption.
Since it’s inception, cases around the country have challenged the legislative districts with a variety of successes.
Most recently, the Supreme Court of Pennsylvania found that the districts needed to be “redrawn” to be fair, yet state Republicans asked the court to “stay” the gerrymandering order so that their upcoming elections could proceed unfettered under the biased plan. In its order, the Supreme Court laid out some guiding principles, saying that a new redistricting plan “shall consist of: congressional districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.”
In fact, the US Supreme Court in October of 2017, heard Gill v. Whitford a case involving a Republican legislature in Wisconsin that had redistricted with the effect of favoring their party with districts that had bizarrely-shaped boundaries which would also appear to dilute or minimize the voting power of the party not in power. US jurisprudence looks to see both the effect and reasoning for such bizarrely-shaped and non-contiguous districts. The Gill case was heard by the US Supreme Court in October of 2017, and the decision is currently pending. Many of the arguments center around discriminatory intent, discriminatory effect, Equal Protection, and the First Amendment freedom of association.
For more information on the historical underpinnings of gerrymandering and how it still remains alive and well today–watch for the upcoming release of The Legal Edition: “Where to Draw the Line.”
Copyright, 2018 – Mary Kay Elloian, MBA, JD, Esq.