Currently, of the 50 states, in 32 states the state legislature has primary responsibility for ‘redistricting’, often subject to the approval by the state governor. Seven states only have an independent or bipartisan ‘redistricting commission’ (Arizona, California, Hawaii, Idaho, Montana, New Jersey, Washington). Four states have independent bodies that propose redistricting, subject to approval by the legislature (Florida, Iowa, Maine, New York). Seven states have only a single representative because of their low population. Gerrymandering is rife throughout most of the US. This is clearly indicated by the tortuous nature of some of the district boundaries. This must be remedied. The only way to remedy this is for the US to institute a federal electoral commission completely independent of all political parties. Political interference in redistricting should be a criminal offence.
In late 2003, an appeal was brought before the US Supreme Court in late 2003 regarding the gerrymander after Pennsylvania’s General Assembly adopted a congressional redistricting plan. A three judge District Court had previously dismissed the claim. The plaintiffs-appellants argued that it violated Article 1 of the Constitution and the Fourteenth Amendment’s equal protection clause. The decision of the District Court was upheld partly because there was no discernible or manageable standard by which the court could assess political gerrymandering claims. So, this is essentially the Supreme Court throwing up its hands and saying ‘we don’t know how to determine if this is fair or not’. This is an indictment not of the Supreme Court, but the carelessness with which the US regards its democracy.
A recent decision indicates that the Supreme Court may be getting its act together, but only when the boundaries are obviously racially motivated. The Virginia State legislature drew new boundaries for 12 state districts after the 2010 census. The goal with this redistricting was to have a black voting age population of at least 55%. Local voters filed suit arguing that the new districts violated the 14th Amendment’s equal protection clause. The district court originally rejected the challenge, but the Supreme Court ruled that the lower court applied the wrong legal standard when it determined race was not a factor. In a damning statement, Anna Scholl, executive director of Progress Virginia stated: “Voters should choose their elected officials, not the other way around. When politicians draw districts that ensure they can’t lose, they rig the game for special interests and the wealthy few. Politicians should not be allowed to use race or other political considerations to turn one election into lifetime tenure”.
There are methods for determining the degree to which districts are gerrymandered. These include those by Wang (see below) in which the asymmetry can be determined using statistical tests:
- Comparison of the number of seats won by the proportion of votes cast for assorted parties. This showed that for the 2012 House of Representatives election, where 234 Republicans and 201 Democrats were elected. However, if the districts were party-neutral the result would have been 223 Republicans and 212 Democrats.
- The discrepancy in winning vote margins between the two parties. The success of a gerrymander is designed to create a safe margin of victory for the party doing the gerrymandering, while the opposing party gets a larger margin of victory, as its voters are concentrated in fewer districts.
- The construction of reliable wins for the party in change of redistricting. This is best indicated by the Pennsylvania gerrymander, in which, despite Democrats comprising 51.0% of the vote, it was as if they comprised 43.3% of the vote. That is effectively disenfranchising 400,000 voters in that state.
There are now algorithms that, based on data from the most recent census will construct non-partisan districts. There are also several other approaches aimed at getting rid of political gerrymanders in electoral districts.
If the US does not remedy this problem soon, political parties will completely pervert US democracy, because with politicians, self-interest always trumps national interest.