Gerrymandering: Definition, History and Legality

Gerrymandering has been done by politicians in America for centuries, for reasons both partisan and racial. What is it and how did it start?

In 2016, the votes for Democrats and Republicans in the Michigan state House race were nearly equal. But you wouldn't guess that from seeing the end result, which was the GOP holding 63 of the House's 110 seats - more than 57% of the seats to give them a firm majority.

How does this happen in a society where we're told the vote of the people directly correlates to the result? The answer to that is gerrymandering. It's a term that pops up a lot in the news now, especially in such a politically-charged environment and 24-hour news cycle.

But the term and the practice of gerrymandering have existed for centuries, despite the fact that its outright unpopularity continues to cause controversies. What is gerrymandering, how did it start and why is it still being done?

What Is Gerrymandering?

Gerrymandering, at least in the U.S., is the act of changing the boundaries of districts in states to manipulate the voting demographics within those districts, thus helping a political party maintain power there even if statewide demographics don't necessarily suggest a majority.

Because different parties in different states have wanted different voting populations highlighted or quarantined, there are different types of gerrymandering. Some political operatives try different strategies in their attempt to have a stranglehold on political power.

Two forms of gerrymandering, "packing" and "cracking," do different things to voting districts to achieve similar goals. Packing is when the boundaries are changed in such a way that the opponent's voters are confined to a smaller number of districts. Cracking is when they're changed in a way that the opponent's base is spread out more across different districts.

Both of these achieve the goal of weakening their opponent's power in elections. Packing ensures seats, but fewer than they would have had. Cracking dilutes the opposing base across the entire state, and redistributes more of their own base into those districts in the process.

Redistricting generally happens after the decennial census gets released every 10 years. This census details new data regarding population around the country, and alters the number of seats in the House of Representatives each state gets. If a state has a significant population increase, they may be given more seats, with seats from less populous states taken so the House remains at 435 seats. This requires redistricting the state, and often the party in power will attempt to gerrymander the districts so that their incumbents' seats are not threatened by the demographics of their new district.

Several states have commissions that are said to be nonpartisan or bipartisan to try to more fairly redistrict them when the time comes. States with only one Congressional district don't require redistricting, as they only get one representative in the House. Most states, though, still have them redistricted by the state legislature.

Gerrymandering History: What Is the Origin of the Term?

In the U.S., the act of gerrymandering has existed essentially as long as the idea of voting for your representatives has. And the term "gerrymander" has existed nearly as long.

"Gerrymander" is a weird word, it's understandable to wonder how it has become such a staple of the political lexicon. The first known usage of the term dates back to 1812, then written as "Gerry-mander" in the Boston Gazette.

The "Gerry" was Elbridge Gerry, a Massachusetts-born politician who played a large role in the American Revolution, signing the Declaration of Independence and the Articles of Confederation and helping to create the Bill of Rights. He spent two terms in the House of Representatives for Massachusetts and made multiple unsuccessful runs for governor before finally winning in 1810. In 1812 the Massachusetts legislature, which was controlled by the Democratic-Republican party Gerry belonged to created new district boundaries for the state designed to further their control in the state. Gerry signed the new districts into law.

These new districts were loudly mocked in the press, due not just to the partisan nature of them but their bizarre shapes as well. A Boston Gazette political cartoon highlighted one of the strange-looking districts, noting that it looked somewhat like a salamander, and derisively referred to it as a "Gerry-mander."

The mockery was intense, but the redistricting worked - for the most part. In the 1812 election, the Massachusetts state senate went heavily for the Republicans, but Gerry's unpopularity, in part due to the gerrymandering, led to a swift defeat after just one term.

Examples of Gerrymandering in America

Gerrymandering didn't save Elbridge Gerry's governorship, but it established itself as, if not the most partisan or fair strategy, a viable one for electoral victory.

The party in charge frequently saw gerrymandering as a way to keep its power, and even in the 1800s were doing arguably underhanded tactics to keep and grow their power - especially as more states entered America. Look to the late 1880s, when the Dakota territory became a part of the country. Republicans were in charge of Congress when this happened, and sensing an opportunity for further electoral domination, they successfully made it so that the territory became a part of America as two states - North Dakota and South Dakota.

Unsurprisingly, the most intense and successful examples of gerrymandering occurred as technology grew, and using the demographics of the census became easier and easier to utilize in a way that would redistrict states.

In 2010, top Republican operatives formulated a plan to not only win state legislature seats, but to use those new found victories to drastically redistrict the states. This plan was called REDMAP, short for Redistricting Majority Project. REDMAP sought blue states that Republicans believed had a chance to swing red and allow them to redistrict them. These states included Pennsylvania, Wisconsin, Michigan, North Carolina and Ohio.

The 2010 midterm elections were a disaster for the Democratic Party. Republicans gained six Senate seats and 63 House seats, making them the new majority in the House of Representatives and giving them control over far more state's legislatures than the Democrats had. Coinciding with the 2010 census as planned by Republican operatives, they set to work redistricting wherever they could. It was a success; in 2012, there were more Democratic votes than Republican votes for House members, but the Republicans finished the election with a 23-seat majority in the House.

Racial Gerrymandering

Perhaps the most consistent form of gerrymandering in the U.S. has been racial gerrymandering, where districts are drawn to prevent racial minorities from getting representation.

Racial gerrymandering isn't just a coincidental side effect of general gerrymandering, but an intentional attempt to suppress, if not also the votes of racial minorities, then the impact of their vote. And politicians certainly sought to gerrymander the vote of minorities when they were able to vote.

The Voting Rights Act of 1965 was signed into law of August of that year, and one crucial element of the act, which sought to hinder states' abilities to racially discriminate in voting, was to forbid redistricting states in a way that dilutes the vote of racial minorities, aka cracking. That was just one of many crucial ways the Voting Rights Act helped disenfranchised minority voters. It was one of the most important pieces of legislation to come out of the Civil Rights Movement.

Is Gerrymandering Legal?

The legality of gerrymandering is a tricky question. Various cases of gerrymandering have made their way to the Supreme Court, and it often divides them. The 1986 Supreme Court decision in Davis v. Bandemer saw the court decide that partisan gerrymandering was justiciable and in violation of the Equal Protection Clause in the 14th Amendment, but found themselves unable to determine how to evaluate cases of it as a legal claim.

Supreme Court justices for decades after that continued to be divided on whether or not partisan gerrymandering is justiciable or how to properly evaluate it, but in particularly egregious cases courts within states have been able to put a stop to it. In January of 2018, the Pennsylvania Supreme Court declared that the state's Congressional districts were drawn in a way that blatantly violated the state's Constitution. The districts had to be redrawn for the 2018 election.

Still, even when gerrymandering is deemed unconstitutional, redistricting doesn't happen immediately. North Carolina's districts were declared unconstitutional by federal judges, but were still used in the midterm election. Republicans won the popular vote narrowly in the state, 50.4% as opposed to 48.3% of the Democrats. Republicans, with that narrow vote, won 10 of the state's 13 seats in the House of Representatives.