GERRYMANDER

A gerrymander is a political district drawn to advantage some and disadvantage others: candidates, parties, or interest groups. The name comes from a particularly spectacular partisan apportionment engineered by elbridge gerry in 1812. Technically, any winner-take-all district can be called a gerrymander, for district lines inevitably favor some against others. But common usage limits the term to districts deemed unnatural in form or unfair in intent or effect. The Supreme Court boldly and unanimously attacked a blatant racial gerrymander in gomillion v. light-foot (1960), but it has been almost uniformly acquiescent since then.

Gomillion voided an "uncouth, 28-sided figure" surgically excluding almost all of the blacks in Tuskegee, Alabama, from voting in the city while retaining every white. It cleared the way for baker v. carr (1962) and the reapportionment revolution. But, apart from a few cases of municipal expansion challenged under the voting rights act of 1965, the Court has never since been able or willing to find "cognizable discrimination" in gerrymandering cases.

The leading cases, Wright v. Rockefeller (1964) and united jewish organizations v. carey (1977), both involved packing of New York black and Puerto Rican voters into what dissenting Justice william o. douglas (in Wright) called a "racial borough." Its packed nonwhite majority, if unpacked and spread to adjacent districts, might have formed two or three nonwhite majorities.

But it is difficult to tell clearly what packing does to a group's power, because "wasted" surplus votes in good years can be badly needed in bad years. In Wright the black plaintiffs wanted more "effective" black votes through dispersion, while the black incumbent, siding with the defendants, argued for strength through concentration: better one safe seat than two marginal ones. The baffled Court claimed it could find "no evidence of racial discrimination" in the obvious gerrymander, but the Court's real lack was simple rules for making sense of the evidence it had.

It is also impossible to equalize everyone's effective representation, short of ordering proportional representation, which could be a cure worse than the disease. In UJO v. Carey the United States attorney general had found the ethnically packed district discriminatory under the Voting Rights Act and ordered the state to create two more districts with nonwhite majority quotas. To do so, the state had to dismember a Hasidic Jewish community, which objected to the explicit racial quotas as a violation of the fourteenth and fifteenth amendments. But the Court, ignoring the constitutional attack, argued that the racial quotas served the purposes of the Voting Rights Act by enhancing the black vote and did not involve "cognizable discrimination" against the Jews, who, as "whites in Kings County," might be submerged in their own districts but would have vicarious "fair representation" by white representatives of other districts.

Only in a few cases under the Voting Rights Act, with its heavy statutory burden on the state to prove nondiscrimination, has the Court intervened against racial gerrymandering since Gomillion. In constitutional terms, partisan and incumbent-favoring gerrymanders are deemed tolerable, perhaps because political districting is indeed a "mathematical quagmire" ill-suited for resolution with simple rules. The Court all but announced its retreat in Gaffney v. Cummings (1973).

Gerrymandering, largely unregulated, has flourished in reapportionment years. Theoretically, it could give the dominant party a manifold advantage over a numerically equal rival. In practice, it gives a thirty to forty percent advantage to the dominant party in seats per vote, often rewarding a minority of votes with a majority of seats.

Once it was hoped that objective standards—of compactness, contiguity, or competitiveness—or impartial judges or commissioners would curb gerrymandering. But standards have been largely ineffectual and judges and commissioners overwhelmingly partisan. A few states have limited partisan gerrymanders with bipartisan commissions, and roughly half the states have found protection through the happenstance of divided, two-party control of the elected branches. Ironically, despite Gomillion and the reapportionment revolution, the chief protection against gerrymandering has not come from courts but from the "weak" separation of powers, and multiplication of competing factions—that court intervention was supposed to supplant.

Ward E. Y. Elliott
(1986)

Bibliography

Dixon, Robert G. 1968 Democratic Representation. New York: Oxford University Press.

Elliott, Ward E. Y. 1975 The Rise of Guardian Democracy: The Supreme Court's Role in Voting Rights Disputes, 1845–1969. Cambridge, Mass.: Harvard University Press.

Sickels, Robert J. 1966 "Dragons, Bacon Strips, and Dumbbells—Who's Afraid of Reapportionment?" Yale Law Journal 75:1300–1308.