Every 10 years, states redraw their legislative and congressional district lines following the national census. Under the principle of proportional representation, the outlines of the 435 House districts are adjusted to reflect changes in local communities, ensuring that districts are equally populated and otherwise representative of a state’s population.
However, sometimes the redistricting process is used to draw maps designed to manufacture election outcomes that are not aligned with voter preferences. Known as gerrymandering, it is the process of drawing congressional district lines to fortify one political party at the expense of another.
Although it varies by state, the task of drawing the maps has traditionally been delegated to the state legislatures and governors. When one political party and its legislature controls the redistricting process, partisan concerns are likely to take precedence – resulting in maps where electoral results are essentially guaranteed.
Packing and Cracking
Gerrymandering is typically accomplished through two common practices: packing and cracking. A packed district is drawn to include as many of the opposing party’s voters as possible. This helps the party in power win surrounding districts where the opposition’s strength has been diluted. Cracking does the opposite: it splits groups of people with similar characteristics, such as voters of the same party affiliation, across multiple districts. With their voting strength divided, these groups struggle to elect their preferred candidates in any of the districts.
Using these techniques, a party can turn a narrow lead in statewide voters into a decisive advantage in a state’s congressional delegation. For example, in 2016, House Republicans in North Carolina won 10 of the 13 seats with just 53% of the popular vote.
Following the 2020 Census, states and local governments began the once-a-decade process of drawing new voting district boundaries. It was the first redistricting cycle since the Supreme Court’s 2019 Rucho v. Common Cause ruling that partisan gerrymandering for party advantage was a state question, not a federal one.
In an effort to minimize partisan influence, 10 states – Arizona, California, Colorado, Hawaii, Idaho, Michigan, Montana, New Jersey, Virginia and Washington – have shifted redistricting responsibility to an independent or bipartisan commission. Five additional states have advisory commissions to help state legislators draw district lines. There have also been numerous legal battles over claims of partisan gerrymandering. States where courts have rejected voting maps in recent years include Alaska, Maryland, New York, Ohio and Pennsylvania, and there are cases pending before other state supreme courts.
On October 11, the U.S. Supreme Court (SCOTUS) heard arguments in Alexander v. South Carolina State Conference of the NAACP. In this gerrymandering case, the question before the Court is whether the South Carolina map violated the law by being racially discriminatory. Targeting the political power of communities of color is often a key element of partisan gerrymandering. This is especially true in states where residential segregation makes it easier to pack or crack communities of color to achieve maximum political advantage. A federal three-judge panel agreed that the South Carolina map did exactly that. But if SCOTUS disagrees, the process of carving up districts so politicians can pick their own voters will be that much easier.
Regardless of which party is responsible, gerrymandering is making elections less competitive and disillusioning American voters. It is a process that enables politicians to choose their voters, rather than empowering voters to choose their representatives. And with improvements in technology delivering sophisticated data about voters, gerrymandering is an increasingly more potent political tool. Please don’t hesitate to contact us with questions or concerns at 973.707.3322 or LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.