The Death of Gerrymandering

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Editor's Note: This piece was initially published on Salon. With the author's permission, we have republished it here.  It was historic Monday when the Pennsylvania Supreme Court struck down the state’s entire congressional map as a partisan gerrymander that “clearly, plainly and palpably” violated the state constitution, and ordered that new, fairer maps be drawn immediately for this fall’s midterm elections.

Yet the magnitude of the court’s decision shouldn’t have come as a surprise. Pennsylvania joins a long and growing list of states including North Carolina and Wisconsin where judges – outraged over the use of Big Data and sophisticated mapping software to give a party a dominant edge in state legislatures and congressional delegations regardless of how citizens vote – have intervened aggressively to protect democracy and competitive elections.

State and federal courts, which had traditionally been reluctant to get involved in partisan gerrymandering cases, have delivered a deluge of decisions, one more scathing than the next, all designed to rein in the most extreme partisan mapmaking. While politicians have tried to draw themselves advantageous lines for as long as we have had politicians, the courts have identified the redistricting that took place this decade as especially partisan, insidious, and dangerous.

It is no coincidence that the judicial actions have been centered in swing states such as North Carolina, Pennsylvania, Wisconsin and Florida, among the targets of a 2010 GOP strategy called REDMAP, short for the Redistricting Majority Project.

Republican leaders, fearing for the party’s future after consecutive Democratic waves in 2006 and 2008, identified redistricting as a path back to power. They spent $30 million targeting control of state legislatures in crucial redistricting states also including Ohio and Michigan. It worked: Republicans locked in gains of nearly 1,000 state legislators nationwide. Purple battlegrounds of Pennsylvania, North Carolina, Ohio, Michigan and Wisconsin collectively send 49 Republicans and 20 Democrats to Congress. Democrats have not flipped a single seat blue this decade in any of those closely divided states.

Now the courts have taken notice.

In Wisconsin last November, a panel of federal judges tossed out the state assembly map for a pro-Republican bias so profound that Democrats struggled to win more than 45 percent of the seats even when, in 2012, they won 175,000 more votes. Federal judges had never before struck down an entire statewide map based on partisan gerrymandering. The case, Gill v Whitford, is now awaiting a ruling by the U.S. Supreme Court.

The lower court, however, found that Republican mapmakers determined to draw districts that would give the party the majority for an entire decade. It uncovered a meticulous and high-tech strategy to tilt maps toward the GOP, complete with a secret Map Room in a politically connected law firm, destroyed hard drives, and non-disclosure agreements even for incumbents who wanted to see their own districts. “The evidence also revealed that as the reapportionment process progressed and the drafters finalized and evaluated these statewide draft plans, the magnitude of the expected partisan advantage increased,” the court ruled.

Earlier this month, a three-judge panel issued its own groundbreaking decision, invalidating North Carolina’s congressional map as a partisan gerrymander. (The U.S. Supreme Court then stayed that order, pending the decision in the Wisconsin case.) It was the first time that a federal court had tossed an entire map because it gave undue influence to a political party. Republicans hold a hammerlock on up to 10 of the state’s 13 seats, even when Democrats get more votes, because of the way Democrats have been packed into a handful of districts.

Judge James A. Wynn’s furious decision found that Republicans in the state legislature had been “motivated by invidious partisan intent,” in violation of the 14th Amendment’s equal protection clause. “Partisan gerrymandering runs contrary to numerous fundamental democratic principles and individual rights enshrined in the Constitution,” Wynn wrote. He poured scorn on the state legislator responsible for drawing the plan, who freely admitted he drew maps that would advantage Republicans because “I think electing Republicans is better than electing Democrats.”

“That,” Wynn observed, “is not a choice the Constitution allows legislative mapdrawers to make.”

In Florida, voters overwhelmingly passed two amendments the state constitution in 2010 that banned any districts drawn to benefit incumbents or a political party. That did not stop Republicans from running a secret, shadow redistricting process behind the scenes of the legislative hearings – and well-paid operatives from crafting deeply partisan maps and smuggling them into public hearings via spouses, neighbors and even a phony Gmail address created under the name of a former state GOP college intern.

A furious judge, Terry Lewis, in a ruling that reads like a John Grisham political thriller declared two districts unconstitutional and sent several back to be redrawn. “This group of Republican consultants or operatives did in fact conspire to manipulate and influence the redistricting process,” he wrote. “They managed to taint the redistricting process and the resulting maps with improper partisan intent.”

Judges have also targeted racial gerrymanders by Republicans in Texas, Virginia and Alabama. There is also one Democratic gerrymander under close scrutiny, in Maryland, where Democrats used similar software programs to turn a 6-2 congressional advantage into a 7-1 bulge.

Pennsylvania, however, may be the most egregious and asymmetric gerrymander in the country. Republicans hold 13 of the state’s 18 congressional seats; in the first year on these maps, Democrats won more than 51 percent of the congressional vote, but just 28 percent of the seats.

Monday’s decision – including Florida, Wisconsin and North Carolina, the fourth GOP partisan gerrymander targeted by courts in less than four years – may be best positioned to bring immediate change. No one knows – well, besides Justice Anthony Kennedy – whether the U.S. Supreme Court will act decisively to limit partisan gerrymandering. The new North Carolina maps remain in a holding pattern until the Court’s decision arrives later this spring. If the decision arrives in June, that could make it too late for new maps to be drawn, and for candidates to declare and be nominated by parties.

But the Pennsylvania decision, requiring new maps by next month, is a state issue – and while state Republicans have announced plans to appeal it to the U.S. Supreme Court, it will be an uphill battle to push a state constitutional question into the federal courts. That could put several new seats into play for Democrats this year as they fight to take back the U.S. House.

Several state special election victories have Democrats feeling momentum and dreaming of a blue wave in November’s midterms. However, in Virginia last November, Democrats won 225,000 more votes than Republicans, but that was not enough to overcome gerrymandered districts for the house of delegates. The GOP maintained control of the chamber. Democrat Doug Jones won an upset bid for the U.S. Senate in Alabama – but was outpolled by Roy Moore in six of the state’s seven congressional districts.

No, if genuine competition and partisan fairness return to our legislative elections, it won’t be because Democrats surfed a midterm wave. It will be because the courts recognized that the extreme partisan gerrymandering this decade, accelerated by deep polarization and abetted by sophisticated technology, has become toxic to democracy – and because they acted firmly and decisively to fix it.

David Daley is the author of “Ratf**ked: Why Your Vote Doesn’t Count” (Norton) and a senior fellow at FairVote.