Gerrymandering was conceptualized during the tenure of Massachusetts governor Elbridge Gerry who, during redistricting negotiations, designed a district that looked strikingly like a salamander. Thus, the Gerry-mander was born. Gerrymandering is a broad term that covers a variety of flaws in the drawing of district lines. In the words of Associate Justice Byron White, gerrymandering occurs when an “electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.” Some forms of gerrymandering, such as drawing lines that attempt to marginalize voters based on race, have been ruled unconstitutional by the Supreme Court. This post will discuss partisan gerrymandering: the drawing of electoral district lines so as to imbalance the proportion of elected representatives of a certain party to the number of votes cast for that party.
In the Supreme Court case Davis v. Bandemer (1986), the Court ruled that partisan gerrymandering was unconstitutional only when “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group” were present. That standard has proven very difficult to meet, and the first twenty partisan gerrymandering cases heard by federal courts were all decided against the plaintiffs (Beckett). Some people hoped the court would clarify its language from Davis v. Bandemer in either of the two gerrymandering cases it took up this past session, but both decisions cited procedural violations that made the cases invalid (an explanation of why they were dismissed can be found here but shall not be addressed in the remainder of this post).
However, the focus of this post is not the Supreme Court, nor is it Davis v. Bandemer. Instead, this post is an endorsement of the original clean (amendment-free) version of Pennsylvania Senate Bill 22. While the federal courts may be delaying any ruling on partisan gerrymandering, the Pennsylvania State Supreme Court ruled in January that Pennsylvania’s federal congressional districts “clearly, plainly, and palpably” violated the Pennsylvania Constitution (Previti). As a result, Pennsylvania has a new congressional map for the 2018 midterm elections. However, lack of legislative action could result in the same issue arising in only a few years. Districts are redrawn after every federal census, the next of which occurs in 2020 (and every subsequent decade). Once the census has been published, the PA legislature will draw up a new congressional map, one that could just as easily favor one party over the other.
While redistricting–vital to ensure districts evolve to match changing demographics–must continue, the problem is that when legislators draw districts, they are able to draw ones that favor their own party and (for state districts) to select their own voters. Redistricting, in fact, does not have to be partisan-based to be problematic. When legislators–regardless of party–pick their constituents, they have substantial motive to pick ones who will vote for them again (“About”).
At one point in time, politicians did not have the capability to carve out accurate and efficient districts to maximize efficiency in drawing districts to favor single parties, but that is no longer the case. With advancements to technology, politicians have access to software that synthesizes data on demographics, race, individual voting history, social media posts, magazine subscriptions, and the like to predict a voter’s political leaning (Newkirk). Thus, congressional districts can be drawn with precision to ensure the most favorable district map possible for the majority party. In fact, in the Wisconsin case that was struck down for procedural reasons in the Supreme Court, the plaintiffs presented 200 random (but possible) district maps and then determined how seats would have been apportioned given the results from the previous election. Out of the 200 random maps, not one gave the Republicans a majority greater than what they secured using their own map (Kean). These results speak to the sophistication of modern gerrymandering.
In response to the PA Supreme Court’s decision and increasing technological abilities that have caused national uproar, State Senators Lisa Boscola (D-18, Lehigh/Northampton) and Mario Scavello (R-40, Monroe/Northampton) introduced S.B. 22, which would put redistricting in Pennsylvania in the hands of a bipartisan committee. The 11-member committee would be comprised of four Democrats, four Republicans, and three members not affiliated with either major political party (Murphy). The committee would be appointed by the legislature (Action Together Nepa, et al). In order for a map to pass, it would need to receive at least seven affirmative votes including those from at least two Republicans, two Democrats, and two third-party/independent members (Murphy). This process ensures the committee must work towards an equitable solution. The legislature would have final approval of the map (Action Together Nepa, et al). S.B. 22 proposes an amendment to the State Constitution, and thus must be voted on by the citizens of the commonwealth in addition to the legislature.
Even this bill is not without flaws, as it still places power in the hands of the legislature. When it was originally presented to the Senate State Government Committee, the bill proposed random selection of committee members, but by the time it emerged from the Senate State Government Committee, Chairman Mike Folmer (R-Lebanon) had secured legislative control over many aspects of the process (Action Together Nepa, et al). In response, Action Together NEPA, Capitol Region Indivisible, Keystone Progress, the NAACP State Council, PA Together, and a number of other organizations wrote the cited article, pulling their support for the bill.
The bill faced another setback on the House floor where Republicans added on an amendment that would also provide for the reorganization of the appellate court judiciary into districts instead of elections based on the vote of the entire commonwealth (Taggart). As this proposition would also require amending the Constitution, it would appear as a separate ballot question in November (assuming the bill is passed by the House in time to get the votes on the ballot). Regardless of the merits of this proposal, the fact remains that the two issues are not the same and should not be addressed together. Taking redistricting out of the hands of the legislature is not related to creating appellate judicial districts. The latter issue has not been given the attention it deserves as a proposed amendment to the constitution, as it was debated during only one Senate session when it was getting tacked on to S.B. 22. By comparison, S.B. 22 was introduced in February.
The question of partisan gerrymandering is no longer one that can be pushed aside or discounted. With every passing year, technology improves the ability of parties to predict votes and design districts to augment their power. If action is not taken before the 2020 census, voters will either have to challenge another partisan gerrymandered district map in PA or they will have to wait for the next redistricting in 2030, facing a legislature whose majority party will likely have secured its grip on power using more advanced technology than can currently be fathomed. That legislature may be even less likely to relinquish hold of their power than the current one. The time to act is now. That said, the solution to gerrymandering needs to be a clean one. If Republican legislators want to bring up a bill proposing amending the Constitution to impose appellate judicial districts, that is their right. That bill, however, should have to go through committee and debate like any other piece of legislation. Constitutional amendments are hard to undo, and so they deserve careful thought, research, and debate. S.B. 22 has had all of that. The House needs to act on its merits now. No, the bill is not perfect. Yes, it gives too much power to the legislature and is burdened by an unnecessary and unrelated amendment. It is not, however, beyond hope. The key principle of S.B. 22 is that voters should get to pick their legislators, not the other way around. That principle is sound. Legislators should support the unamended S.B. 22 as it was introduced by Senators Boscola and Scavello. They should support it now, and more importantly, they should support it clean.
Does the power the legislature has over the committee appointments and the requirement of final approval by the legislature mean is should not be seen as a worthy amendment to the State Constitution?
Is supporting S.B. 22 even with the amendment to change judicial elections worthwhile?
Should appellate judicial elections be statewide or limited to districts?
Do you have anything else relevant to say that I am not asking about?
Action Together NEPA, et al. “This Pa. Senate Bill Doesn’t Fix Gerrymandering. It Makes It Worse.” PennLive.com, 4 June 2018, http://www.pennlive.com/opinion/2018/06/this_pa_senate_bill_doesnt_fix.html.
Beckett, Lois. “Is Partisan Gerrymandering Unconstitutional?” ProPublica, 7 Nov. 2011, https://www.propublica.org/article/is-partisan-gerrymandering-unconstitutional.
Davis v. Bandemer. 478 U.S. 109. Supreme Court of the United States. 1986. FindLaw, https://caselaw.findlaw.com/us-supreme-court/478/109.html.
Kean, Sam. “The Flaw in America’s ‘Holy Grail’ Against Gerrymandering.” The Atlantic, https://www.theatlantic.com/science/archive/2018/01/efficiency-gap-gerrymandering/551492/.
Murphy, Jan. “Pa. Senate passes redistricting reform bill that includes controversial judicial election change.” PennLive.com, 13 June 2018, https://www.pennlive.com/politics/index.ssf/2018/06/senate_advances_two_sweeping_g.html.
Newkirk, Vann R. “How Politicians Can Use Pig Data to Win Elections.” The Atlantic, 5 Dec. 2017, https://www.theatlantic.com/video/index/547541/what-is-gerrymandering-technology/.
Previti, Emily. “Pennsylvania Supreme Court Strikes Down Voting Map.” NPR, 22 Jan. 2018, https://www.npr.org/sections/thetwo-way/2018/01/22/579788104/pennsylvania-supreme-court-strikes-down-voting-map.