GERRYMANDER

The process of dividing a particular state or territory into election districts in such a manner as to accomplish an unlawful purpose, such as to give one party a greater advantage.

State constitutions or amendments to those constitutions empower state legislatures, and sometimes state or federal courts, to apportion and reapportion election districts. This generally means that states may draw and redraw the lines around election districts for offices ranging from local to congressional. It can also mean that states may calculate and recalculate the numbers of representatives in election districts. Any form of unfair apportionment may be called gerrymandering, but generally, a gerrymander is understood to be invalid redistricting.

Redistricting is usually used to adjust the populations of election districts to achieve equality in representation among those districts. Sometimes, however, it is used for unlawful ulterior motives. Then it crosses the line to become gerrymandering.

The classic example of a gerrymander is a legislative redistricting scheme designed to benefit the party in power. Assume that a state legislature has redrawn its voting districts to divide and fold all communities that vote predominantly Democratic into larger communities that vote Republican. This is a political gerrymander. Such redistricting decreases the likelihood of Democratic representation in the state legislature because the Democratic vote in each new district is diluted by the predominant Republican vote.

The term gerrymander was inspired by an 1812 Massachusetts redistricting scheme that favored the party of Governor Elbridge Gerry. Portraitist Gilbert C. Stuart noted that one new election district had the shape of a salamander. Stuart drew an outline of the district, put a salamander's head on one end, and called the creature a Gerrymander.

The gerrymander has been used by state legislatures ever since. It thrived all the way through the 1950s, when many southeastern states were reapportioned in an effort to weaken the voting power of African Americans. This usually involved the drawing of complex, irregularly shaped election districts. A legislature could divide and fold predominantly African American communities into surrounding districts with large blocs of white voters. Such schemes diluted the vote of African Americans, placed their representation in faraway communities, and effectively prevented African Americans from expressing their collective will in elections.

In 1960, the U.S. Supreme Court struck down the first gerrymander scheme it reviewed, in Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960). In Gomillion, the Alabama legislature altered the city limits of Tuskegee to remove all but four of the city's 400 African American voters. It changed the city limits of Tuskegee, for election purposes, from a square to, according to the Court, "an uncouth twenty-eight-sided figure." According to the Court, the redistricting discriminated against African Americans and violated the equal protection clause of the fourteenth amendment.

Gomillion did not establish that the drawing of election districts was always a proper matter for the courts. Before Gomillion, the Court had refused to review gerrymandering claims, holding that the issue of reapportionment was political and beyond the reach of the courts. The Court heard Gomillion only because the issue of racial discrimination lifted the controversy out of the arena traditionally beyond the power of the courts.

In 1962, the U.S. Supreme Court took the first step in establishing its right to review all districting, with its decision in baker v. carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663. At issue in Baker was a decades-old Tennessee apportionment. According to urban Tennessee voters, the outdated apportionment was a "silent gerrymander" or a "malapportionment." Although the population in urban election districts had increased, Tennessee had made no changes to reflect this population shift; thus, sparsely populated rural districts had the same representation in the state legislature as did densely populated urban districts. The Court in Baker did not reach a decision on the validity of the Tennessee districting; Baker established only that the issue of districting was justiciable and not merely a political question.

The Court next established the "one person, one vote" requirement for federal elections, in Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964). This requirement, which held that voting districts should be roughly equal in population, was extended to the states in reynolds v. sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). In Wesberry, the Court struck down a Georgia redistricting statute (Ga. Code § 34-2301) because its voting districts were unequal in population. Georgia's Fifth Congressional District, largely populated by African Americans, was two to three times the size of other districts in the state. As a result, the African Americans in the Fifth District received less representation in Congress than persons in the other districts. According to the Court, this violated Article I, Section 2 of the U.S. Constitution, which states that U.S. Representatives were to be "apportioned among the several States … according to their respective Numbers" (Wesberry).

Since these seminal cases, courts have become intimately involved in the review of apportionment, reapportionment, and redistricting. In their review of districting schemes, courts use census figures to compare election district populations for equality of representation. Courts also examine census figures for racial populations and compare overall percentages with percentages in election districts.

Courts have developed redistricting principles that favor compact, contiguous election districts that respect already existing municipal boundaries. Gerrymanders may be easy to recognize because they usually produce election districts that are irregularly shaped. However, not all irregularly shaped election districts are the result of gerrymanders. Indeed, Congress has encouraged the creation of "majority-minority" voting districts, which often call for an inventive drawing of election districts. Majority-minority districts are those in which racial minorities constitute the majority of votes.

Under section 4(b) of the voting rights act (79 Stat. 438, as amended [42 U.S.C.A. § 1973b(b)]), some states, or specified counties in some states, may need to preclear redistricting plans with the attorney general or the U.S. District Court for the District of Columbia. The states subject to preclearance are those that have historically used constraints such as poll taxes and literacy tests in an effort to exclude minority voters.

Section 4(b) of the Voting Rights Act presses the issue of redistricting based on race. The Supreme Court has responded by questioning the constitutionality of the provision. In Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993), a group of white North Carolina voters challenged the creation of two North Carolina majority-minority districts, which had the approval of the attorney general. One of the districts at issue had the shape of a "bug splattered

on a windshield" (Shaw). The other district was so thin in parts that one legislator remarked, "If you drove down the interstate with both car doors open, you'd kill most of the people in the district" (Shaw). According to the Court, the redistricting was a racial gerrymander because it could not be explained by anything other factor than race. The holding of the Court emphasized that redistricting based entirely on race, with no respect for other redistricting principles, was a violation of the Equal Protection Clause and therefore invalid.

The Supreme Court reaffirmed and extended the Shaw holding in Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995). In Miller, the state of Georgia had complied with the redistricting provisions of the Voting Rights Act, but still found its redistricting scheme struck down by the U.S. Supreme Court as a racial gerrymander. As a designated state under the act, Georgia reapportioned three times before the attorney general accepted a plan. In its first two plans, Georgia drew two districts in which the majority of the voting population was African American. The scheme eventually accepted by the attorney general contained three congressional districts in which the majority of the voting population was African American. According to the Court, the redistricting was a racial gerrymander because its guiding principle was racial division, even though the new election districts were not bizarrely shaped.

The controversy over the North Carolina redistricting plan considered in Shaw v. Reno continued throughout the decade, even after the Court's decision in Miller v. Johnson. Three years after the Court ruled in Shaw, a three-judge panel in federal district court in North Carolina reviewed the state's districting plan, but again found it to be constitutional. The Supreme Court reversed the decision for a second time in shaw v. hunt, 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996) and found that the redrawing of the district into bizarre-looking shapes violated the Equal Protection Clause.

The North Carolina legislature constructed a new districting plan with a district 71 miles long, where African Americans comprised a 47 percent majority, compared with 57 percent in the original plan. White voters again contested the plan, and the three-judge panel in the North Carolina district court found that the plan violated the Equal Protection Clause because, according to the court, the legislature used race as a motivating factor in drawing the districts. The Supreme Court, per Justice clarence thomas, however, disagreed. In Hunt v. Cromartie, 526 U.S. 541, 119 S. Ct. 1545, 143 L. Ed. 2d 731 (1991), the Court held that the motivation of the legislature was in dispute. The white plaintiffs were required to prove that the district was drawn "with an impermissible motive." Moreover, the plaintiffs had to prove that race was the "predominant factor" motivating the legislature. The plaintiffs had the burden of showing, through direct and circumstantial evidence, this racial motivation.

On remand, the three-judge panel conducted a full hearing to determine the intention of the legislature when it drafted the district. After the hearing the panel again ruled that the plan used race as a predominant factor, which is constitutionally impermissible. The Supreme Court reviewed the case for the fourth and final time in Easley v. Cromartie, 532 U.S. 234, 121 S. Ct. 1452, 149 L. Ed. 2d 430 (2001), this time concluding that the three-judge panel's findings were clearly erroneous and must be reversed. The Court held that a largely black district is constitutional if it is drawn to satisfy political rather than racial motives.

The issues in North Carolina and Georgia are by no means unique to those states. In 1975, Congress enacted a law (Pub. L. No. 94-171) that requires the census bureau to provide redistricting data to each state after each decennial census, the last of which occurred in 2000. Between 1990 and 2000, the percentage of white Americans increased at a lower level than any other race or ethnicity, including African American, Hispanic American, Asian, American Indian, and Native Hawaiian. After the census figures were released, each state underwent a lengthy and costly process of redistricting, and many of these plans were contested in court.

Redistricting raises not only racial and ethnic concerns, but also concerns over the political motivation of these plans. Some claim that the system has become one in which politicians, through redistricting, now choose their voters before the voters choose their politicians. Partisanship is often at the core of these controversies. For example, due in large part to Republican-drafted districts in Texas, the Texas House of Representatives in 2002 came under control of Republicans for the first time in more than a century. Texas courts and those in many other states saw numerous lawsuits filed contesting these districting plans, and these contests were not expected to end for quite some time.

further readings

Clarkowski, Andrew J. 1995. "Shaw v. Reno and Formal Districting Criteria: A Short History of a Jurisprudence That Failed in Wisconsin." Wisconsin Law Review.

Fuentes-Rohwer, Luis. 2003. "Doing Our Politics in Court: Gerrymandering, 'Fair Representation' and an Exegesis into the Judicial Role." Notre Dame Law Review 78 (January).

Hamilton, Jeffrey G. 1994. "Deeper into the Political Thicket: Racial and Political Gerrymandering and the Supreme Court." Emory Law Journal 43.

Harvard Law Review Association. 1995. "Voting Rights and Race-based Districting." Harvard Law Review 109.

Lewis, Terrence M. 1996. "Standard of Review under the Fifth Amendment Equal Protection Component: Adarand Expands the Application of Strict Scrutiny." Duquesne Law Review 34.

Stockman, Eric J. 1993. "Constitutional Gerrymandering: Fonfara v. Reapportionment Commission." Connecticut Law Review 25.

cross-references

Equal Protection; Voting.

Gerrymandering

BIBLIOGRAPHY

The term gerrymander typically refers to the creation of electoral districts that have bizarre shapes in order to condition the outcome of an election. In “Considering the Gerrymander” (1977), Leroy C. Hardy recounts that the term gerrymander was coined after the Jeffersonian-controlled legislature of Massachusetts drew contorted senatorial districts in order to ensure the defeat of Federalist candidates in 1812. One particular district located north of Boston was so contorted that it was said to look like the mythical salamander. Since this all took place during Elbridge Gerry’s (1744–1814) term as governor, the district was christened a “Gerrymander,” and the term has stuck ever since.

Bizarre district shape is but one manifestation of the real evil of gerrymandering: the conscious attempt by someone to organize voters in a manner will result in the over- or underrepresentation of a particular group or political party. This can be accomplished using very unremarkable district boundaries. In addition, an electoral system can be gerrymandered by other means, such as unfairly altering the rules by which votes are counted and translated into electoral seats or changing the laws governing the qualification of candidates and political parties to appear on ballots.

Gerrymandering takes on benign as well as evil forms. Perhaps the most egregious example of modern gerrymandering in the United States took place in Alabama in 1958. The black population of the city of Tuskegee was about to become a majority of the electorate. White residents petitioned the state legislature to redraw the boundaries of the city to remove the black voters. The state legislature obliged and transformed the city’s border from a simple square to what the Supreme Court of the United States described in Gomillion v. Lightfoot (1960) as an “uncouth” twenty-three-sided figure. The Supreme Court declared that this transformation of Tuskegee amounted to a denial of the black residents’ right to vote.

In 1965 the U.S. Congress passed the Voting Rights Act. When it was amended in 1982, it was read by the Justice Department and the Supreme Court (in Thornburg v. Gingles, 1983) to require states to create legislative and congressional districts with voting majorities comprised of minority voters (“majority-minority districts”) wherever possible.

With this decision the Supreme Court essentially endorsed a congressional mandate to gerrymander legislative and congressional districts to help minority voters. While the Voting Rights Act was thus regarded as a benevolent attempt to rectify a heinous history of disenfranchisement of minority voters, it nonetheless endorsed a policy of officially mandated manipulation of the electoral system.

Beginning in 1993 with the decision in Shaw v. Reno, the Supreme Court retreated from its holding in Gingles. In so doing, it placed restrictions on the extent to which the federal government could require states to gerrymander districts on behalf of minority voters. While congressionally mandated gerrymandering was clearly benign in its intent, it was nonetheless a clear perversion of the electoral system.

Gerrymandering is unavoidable because it is impossible to draw electoral district lines or change electoral laws without having a clearly favorable or unfavorable impact on someone. Gerrymandering occurs throughout the world and in many different circumstances. Drawing on examples from the United Kingdom and Ireland, Richard Katz (1998) notes that in countries that use other electoral systems (such as proportional representation systems with multimember electoral districts), the size of districts can be manipulated so that particular parties end up wasting their votes and electing fewer candidates than they would in a district of a different size.

In addition, an electoral system can be gerrymandered by making it harder for minor parties or independent candidates to challenge the established political powers. In Canada, for example, the Supreme Court has heard challenges to laws restricting the access of small political parties to government funds (Figueroa v. Canada, 2003), restricting campaign spending (Harper v. Canada, 2004), and allowing for great population discrepancies among voting districts (Reference re Provincial Electoral Boundaries [Sask.], 1991). The first two cases embodied claims that laws unfairly favored incumbent political powers by making it harder for minor political actors to garner enough influence to challenge the government. This not only discriminated against minor parties, it also rendered political competition less robust and the electoral system correspondingly unfair. In the Saskatchewan case, challengers claimed that population disparities among electoral districts unfairly favored rural interests at the expense of urban voters.

In conclusion, the term gerrymander has transformed since the mid-twentieth century from a reference to bizarrely shaped electoral districts to a broader term addressing myriad ways in which an electoral system can be rendered less competitive in hopes of achieving partisan gain. As a result, around the world, the trend is to place the authority to make changes to the electoral system in the hands of nonpartisan commissions or agencies.

SEE ALSO Campaigning;Elections

BIBLIOGRAPHY

Figueroa v. Canada, [2003] 1 S.C.R. 912.

Gomillion v. Lightfoot, 364 U.S. 339 (1960).

Hardy, Leroy C. 1977. Considering the Gerrymander. Pepperdine Law Review 4: 243–283.

Harper v. Canada, [2004] 1 S.C.R. 827.

Katz, Richard S. 1998. Malapportionment and Gerrymandering in Other Countries and Alternative Electoral Systems. In Voting Rights and Redistricting in the United States, ed. Mark E. Rush, 245–260. Westport, CT: Greenwood.

Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158.

Shaw v. Reno, 509 U.S. 630 (1993).

Thornburg v. Gingles, 478 U.S. 30 (1986).

Mark Rush

GERRYMANDER

A gerrymander is a political district drawn to advantage some and disadvantage others: candidates, parties, or interest groups. The name comes from a particularly spectacular partisan apportionment engineered by elbridge gerry in 1812. Technically, any winner-take-all district can be called a gerrymander, for district lines inevitably favor some against others. But common usage limits the term to districts deemed unnatural in form or unfair in intent or effect. The Supreme Court boldly and unanimously attacked a blatant racial gerrymander in gomillion v. light-foot (1960), but it has been almost uniformly acquiescent since then.

Gomillion voided an "uncouth, 28-sided figure" surgically excluding almost all of the blacks in Tuskegee, Alabama, from voting in the city while retaining every white. It cleared the way for baker v. carr (1962) and the reapportionment revolution. But, apart from a few cases of municipal expansion challenged under the voting rights act of 1965, the Court has never since been able or willing to find "cognizable discrimination" in gerrymandering cases.

The leading cases, Wright v. Rockefeller (1964) and united jewish organizations v. carey (1977), both involved packing of New York black and Puerto Rican voters into what dissenting Justice william o. douglas (in Wright) called a "racial borough." Its packed nonwhite majority, if unpacked and spread to adjacent districts, might have formed two or three nonwhite majorities.

But it is difficult to tell clearly what packing does to a group's power, because "wasted" surplus votes in good years can be badly needed in bad years. In Wright the black plaintiffs wanted more "effective" black votes through dispersion, while the black incumbent, siding with the defendants, argued for strength through concentration: better one safe seat than two marginal ones. The baffled Court claimed it could find "no evidence of racial discrimination" in the obvious gerrymander, but the Court's real lack was simple rules for making sense of the evidence it had.

It is also impossible to equalize everyone's effective representation, short of ordering proportional representation, which could be a cure worse than the disease. In UJO v. Carey the United States attorney general had found the ethnically packed district discriminatory under the Voting Rights Act and ordered the state to create two more districts with nonwhite majority quotas. To do so, the state had to dismember a Hasidic Jewish community, which objected to the explicit racial quotas as a violation of the fourteenth and fifteenth amendments. But the Court, ignoring the constitutional attack, argued that the racial quotas served the purposes of the Voting Rights Act by enhancing the black vote and did not involve "cognizable discrimination" against the Jews, who, as "whites in Kings County," might be submerged in their own districts but would have vicarious "fair representation" by white representatives of other districts.

Only in a few cases under the Voting Rights Act, with its heavy statutory burden on the state to prove nondiscrimination, has the Court intervened against racial gerrymandering since Gomillion. In constitutional terms, partisan and incumbent-favoring gerrymanders are deemed tolerable, perhaps because political districting is indeed a "mathematical quagmire" ill-suited for resolution with simple rules. The Court all but announced its retreat in Gaffney v. Cummings (1973).

Gerrymandering, largely unregulated, has flourished in reapportionment years. Theoretically, it could give the dominant party a manifold advantage over a numerically equal rival. In practice, it gives a thirty to forty percent advantage to the dominant party in seats per vote, often rewarding a minority of votes with a majority of seats.

Once it was hoped that objective standards—of compactness, contiguity, or competitiveness—or impartial judges or commissioners would curb gerrymandering. But standards have been largely ineffectual and judges and commissioners overwhelmingly partisan. A few states have limited partisan gerrymanders with bipartisan commissions, and roughly half the states have found protection through the happenstance of divided, two-party control of the elected branches. Ironically, despite Gomillion and the reapportionment revolution, the chief protection against gerrymandering has not come from courts but from the "weak" separation of powers, and multiplication of competing factions—that court intervention was supposed to supplant.

Ward E. Y. Elliott
(1986)

Bibliography

Dixon, Robert G. 1968 Democratic Representation. New York: Oxford University Press.

Elliott, Ward E. Y. 1975 The Rise of Guardian Democracy: The Supreme Court's Role in Voting Rights Disputes, 1845–1969. Cambridge, Mass.: Harvard University Press.

Sickels, Robert J. 1966 "Dragons, Bacon Strips, and Dumbbells—Who's Afraid of Reapportionment?" Yale Law Journal 75:1300–1308.

GERRYMANDER

GERRYMANDER. The word "gerrymander" was first used during Elbridge Gerry's second term as governor of Massachusetts, when a bill was passed (11 February 1812) redistricting the state in order to give the Jeffersonian Republicans an advantage in the election of state senators. The name was derived from a caricature representing a strangely shaped three-member Republican district in Essex County as a salamander, which, combined with "gerry," became "gerrymander."

Gerrymandering, the advantage obtained by a certain group through discretionary districting, has applied to congressional, state legislative, and local districts. The purpose of partisan gerrymandering is to strengthen one party by concentrating the opposing party's voters into only a few districts. The purpose of racial gerrymandering is to limit, perhaps to none, the number of districts in which the unfavored group is dominant.

Although the U. S. Supreme Court, from 1964 through the early 2000s, mandated that districts must be essentially equal in population (eliminating the "silent gerrymander," which left urban areas under represented as population shifted), it had yet to limit partisan gerrymandering. Even though criteria for districting, such as contiguity, compactness, and respect for subdivision boundaries, were often required, substantial leeway existed for legislators to safeguard majority party candidates or incumbents of any party. Even districts drawn by neutral commissions or judges could have differential effects. Redistricting by computer usually followed a program set to give advantage to one party.

In the late twentieth century a combination of partisan and racial gerrymandering continued to be widely practiced. This was particularly true in the South, where gerrymandering has been used to create solidly Democratic districts in predominantly African American areas and solidly Republican districts in predominantly white areas. Racial gerrymandering underwent several court challenges during the 1990s. Defenders of racial gerry-mandering argued that it made possible the creation of a

black congressional delegation from the South, whereas critics maintained that it promoted a racial balkanization of American politics.

BIBLIOGRAPHY

Griffith, Elmer C. The Rise and Development of the Gerrymander. Chicago: Scott, Foresman, 1907. Reprint, New York: Arno Press, 1974.

Lublin, David. The Paradox of Representation: Racial Gerrymandering and Minority Interests in Congress. Princeton, N. J. : Princeton University Press, 1997.

Rush, Mark E. Does Redistricting Make a Difference? Partisan Representation and Electoral Behavior. Baltimore: Johns Hopkins University Press, 1993.

Charles H.Backstrom

LeonardRobbins/a. g.

See alsoApportionment ; Congress, United States ; Election Laws .

ger·ry·man·der / ˈjerēˌmandər/ • v. [tr.] [often as n.] (gerrymandering) manipulate the boundaries of (an electoral constituency) so as to favor one party or class. ∎  achieve (a result) by such manipulation: a total freedom to gerrymander the results they want.• n. an instance of such a practice.DERIVATIVES: ger·ry·man·der·er n.ORIGIN: early 19th cent.: from the name of Governor Elbridge Gerry of Massachusetts + salamander, from the supposed similarity between a salamander and the shape of a new voting district on a map drawn when he was in office (1812), the creation of which was felt to favor his party: the map (with claws, wings, and fangs added), was published in the Boston Weekly Messenger, with the title The Gerry-Mander.