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, named for a salamander‐shaped district devised by Massachusetts governor Elbridge Gerry in 1812, is the practice of drawing the boundaries of a political district to the advantage or disadvantage of some person, party, or other group. Every winner‐take‐all district is somewhat gerrymandered in this sense, but common usage confines the term to districts that are blatantly discriminatory or exotically shaped. The normal techniques for manipulating a group's so‐called effective votes are “cracking” and “packing,” dispersing the group among several districts or concentrating it in a single, overly safe district where all its votes over 51 percent are wasted. The least waste occurs when the group is packed just enough to win the district. The Supreme Court has twice detected and struck down egregious, exotically shaped gerrymanders, in Gomillion v. Lightfoot (1960) and again in Shaw v. Reno (1993). Between these landmarks it has typically found gerrymanders impossible to detect. In Gomillion, the city of Tuskegee, Alabama, had drawn up an “uncouth, 28‐sided figure” excluding almost every black from voting in the city, while keeping every white voter within the city's boundaries. The Court voided the new boundaries and opened the way for Baker v. Carr (1962) and decades of wrestling with a new “fundamental principle” of the Constitution requiring “equal representation for equal numbers.” Justice Felix Frankfurter, dissenting in Baker, warned that the principle was a “quagmire,” too complex and political to be properly enforced with simple, clear, objective standards. This objection is called the “standards problem” (see Reapportionment Cases; Judicial Activism). The Court applied the principle vigorously to equalize the population of districts, forcing otherwise reluctant legislatures to re‐gerrymander after every census, but it usually shrank from applying it to the resultant gerrymanders. Four leading cases—Wright v. Rockefeller (1964), United Jewish Organizations of Williamsburgh v. Carey (1977), Davis v. Bandemer (1986), and Badham v. Eu (1988)—illustrate the Court's caution. Wright and United Jewish Organizations both involved racial gerrymanders, concentrating African‐American and Puerto Rican populations in New York City into “racial boroughs.” Had the minority voters been divided among adjacent districts, they could have had majorities in more than one district.

In Wright, the African‐American plaintiffs wanted to achieve more effective voting power for blacks through deconcentration. However, the black incumbent sided with the defendants and argued that it was better to have one strong, safe black seat (his) than two weaker, marginal ones. The Court declined to intervene against the obvious racial gerrymander, claiming it could see no evidence of racial discrimination. In United Jewish Organizations, the U.S. attorney general had ordered the state to create two new nonwhite‐majority districts by dismembering a Hasidic Jewish district. The Jewish plaintiffs objected to the explicit racial quotas, which they argued cost them voting power, but the Court ruled that the quotas did not constitute discrimination against the Jews. As in Wright, the evidence of discrimination was strong, but the rules for interpreting it were uncertain (see Race and Racism).

Davis and Badham were both partisan districting cases, where the “in” party, by gerrymandering, had given itself half again as many seats per vote as the “out” party. In Davis, the Court warned in dictum that egregious gerrymandering that would “consistently degrade a voter's … influence on the political process” (p. 132) would violate the Equal Protection Clause, but it did not find Indiana's suppression of Democrats, in one house in one election, egregious enough to be a constitutional violation. Although Badham involved several successive elections and a pro‐Democrat, pro‐incumbent gerrymandering so tight that virtually no legislative district changed party hands, the Court declined to hear the case.

In principle, liberals often favored “affirmative action” (i.e., packed) racial gerrymanders, whereas conservatives either opposed them for placing group rights ahead of individual rights, or opposed national intervention because of the standards problem. Passionate concerns about racial gerrymandering often coexisted with deep indifference to partisan gerrymandering. And partisan interests seldom coincided with party principles. Often, liberals would win the battle over principle but lose power for doing so. In City of Mobile v. Bolden (1980), the Court refused to strike down a multimember district, which had the effect of diluting the black vote in the city, absent a showing of intent to do so. Liberals were outraged, and in 1982 they amended section 2 of the Voting Rights Act of 1965 to ban any practice of procedure “which results in a denial or abridgement” of a citizen's voting rights, the so‐called “results test.” The amendments greatly expanded the act's reach, formerly confined to simple issues of individual suffrage, to include complex group rights of representation as well. They led to the wholesale creation of affirmative action racial gerrymanders, at great cost to the liberals who were responsible for their creation. Packing black Democrats into ghettoized districts predictably wasted their votes and contributed to the Democrats' loss of the House of Representatives to the Republicans in 1994 and since. The Supreme Court's response, striking down one egregious affirmative action racial gerrymander in Shaw, while leaving many others standing and not repudiating Wright, was also true in a way to conservative principles but much less costly to the conservatives in Congress. “Reapportionment,” said Justice Sandra Day O'Connor, “is one area in which appearances do matter.” Despite Shaw, the standards problem remains unsolved, and racial packing continues, along with seemingly endless litigation attacking or defending it.

Some observers blame partisan and incumbent‐protecting gerrymanders (of which packed racial gerrymanders are a subset) for the very low turnover of House representatives and state legislators and for the polarization, the freezing of the status quo, and the insulation from changes in public opinion that go with safe seats. California has provided extreme examples of gerrymandering and of attempts to control it and its effects. Frustrated with entrenched, unresponsive legislators, California voters have turned again and again to initiatives to get their way, including term limits and electoral reforms to curb unwanted gerrymandering. Initiatives are a clumsy, messy, and haphazard way to legislate, but Californians have often found them more responsive than their much reformed, artfully gerrymandered legislature.

See also Elections; Fair Representation.

Bibliography

Ward Elliott , The Rise of Guardian Democracy (1975).
Samuel Issacharoff, Pamela Karlan, and Richard Pildes, eds., The Law of Democracy: Legal Structure of the Political Process (2002), chap. 9, 10.
David Lublin , The Paradox of Representation: Racial Gerrymandering and Minority Interests in Congress (1997).
Anthony Peacock, ed., Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights (1997).
Abigail Thernstrom , Whose Votes Count? Affirmative Action and Minority Voting Rights (1987).

Ward E. Y. Elliott

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 .

gerrymander , in politics, rearrangement of voting districts so as to favor the party in power. The objective is to create as many districts as possible in areas of known support and to concentrate the opposition's strength into as few districts as possible. Extremely irregular boundary lines are sometimes necessary to obtain the results desired. The U.S. Supreme Court, however, has placed (1964) the vague limit of "compact districts of contiguous territory" on such apportionment schemes. The origin of the term, though by no means the origin of the practice, was in such an arrangement made by the Massachusetts Jeffersonians when Elbridge Gerry was governor.

Bibliography: See E. C. Griffith, The Rise and Development of the Gerrymander (1907, repr. 1974).

gerrymander manipulate the boundaries (of an electoral constituency) so as to favour one party or class. Recorded from the early 19th century, and deriving 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 favour his party: the map (with claws, wings, and fangs added), was published in the Boston Weekly Messenger, with the title The Gerry-Mander.

gerrymander (orig. U. S.) manipulate election districts unfairly so as to secure disproportionate representation. XIX. f. name of Elbridge Gerry, governor of Massachusetts, who is related to have constructed a district map of the U.S.A. in which the shape of one district suggested to an artist the addition of head, wings, and claws; he exclaimed ‘That will do for a salamander!’, to which another retorted ‘Gerrymander!’

gerrymander Practice of redrawing electoral boundaries to favour a particular party. It is named after Elbridge Gerry, Governor of Massachusetts (1810–12), whose party employed the practice. One of his redefined districts was said to resemble a salamander, hence gerrymander.

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