For the People or Pick the People: Gerrymandering in a Post-Roe America

For the People or Pick the People

Gerrymandering in a Post-Roe America

Ashleigh Mills*

In the wake of the rise and, arguably, fall of former President Donald J Trump, much has been said about the state of American democracy. Once lauded and broadly understood to be a beacon of democracy in the Western world, state and federal legislatures across the United States (‘US’) are now more partisan, less representative and less accountable than ever before. The focus of this article is on the role that gerrymandering has had to play, and continues to play, in what has become an increasingly calci ed reality across the US, and the practical impact that has on the realisation of individual opportunities, rights and freedoms in 21st century America.

* Workplace Relations and Safety Lawyer at Holding Redlich in Sydney. Ashleigh also has a keen interest in human rights law and international politics, having completed two international exchange programs focusing on those areas while at university (including one in the United States), and having won the Australian Academy of Law Prize for her essay relating to human rights and constitutional law in 2018.

I Introduction

On 24 June 2022, the US Supreme Court delivered its decision in the landmark case of Dobbs v Jackson Women’s Health Organization (‘Dobbs’).1 In handing the authority to make decisions about the legality or illegality of abortion back to state legislatures, it was asserted by the majority in Dobbs2 that their decision sought to restore the authority of the people, and speci cally women, to address the issue of abortion through the ‘processes of democratic self-government’.3 That is, that the people were now in a position to make their own voices heard by virtue of their vote, and that this would, in turn, be re ected in the outcome of their elections, and the laws passed by their elected representatives. It is a rationale premised upon the supposition that an individual’s opinion, as borne out by their vote, has the capacity to in uence state lawmaking, and speci cally in this case, state lawmaking concerning women’s reproductive rights. That much, as this article will contend, is far from settled.

Although public attitudes about abortion are certainly complex, recent polling data suggests that 61% of Americans are in favour of abortion being legal in most or in all circumstances, with only 8% saying it should be illegal in all circumstances.4 Despite this, following Dobbs, as many as 28 of the 50 American state legislatures have either already introduced, or are poised to shortly introduce, laws that ban or substantially restrict access to abortion within state lines.5 This includes Ohio where a close to complete ban on abortion, including in cases of rape and incest, has been signed into law,6 and Wisconsin where a law from 1849 — a time when only white men had the vote7 — has been re-introduced state-wide.8 In both cases, these laws are inconsistent with polling data, reported public opinion and do little to re ect the partisan make-up of the constituents as registered on state rolls.9

There are multiple factors that contribute to this apparent anomaly but one is the impact of extreme gerrymandering on the composition and output of American state legislatures. When applied, it is a practice that dilutes an individual’s ability to participate in the representative democracy that is guaranteed by the US Constitution, 10

and which, in turn, is relied upon by the Supreme Court in formulating opinions such as Dobbs. While the term ‘gerrymandering’ was widely publicised as a result of the Republican ‘REDMAP’ strategy in 2010,11 it is ‘by no means a modern phenomenon’.12 As a practice, gerrymandering dates back to well before the founding of the Union, the term having rst been coined in 1812 when the Governor of Massachusetts (and later Vice President of the US), Governor Elbridge Gerry, signed into law a bill creating a district so oddly drawn that it was depicted by political cartoonists as having resembled a salamander.13 Gerrymandering is also not a practice that is con ned to Republicans. Rather, both Republicans and Democrats have engaged in gerrymandering to great and continuing effect, at almost every level of government, ever since.14

II So, What Is Gerrymandering?

In order to understand gerrymandering, it must rst be placed within the broader context of the re-districting cycle. In the US, all congressional representatives, as well as all state legislators, are elected from political divisions that are called districts.15 Each state is required to re-draw its district lines every ten years following completion of the federal census,16 and in doing so is required to ensure, so far as is practicable, that each district is as equal in population to each other district in the state.17 In this way, re-districting is intended to preserve the integrity of representative democracy, and an individual’s vote, as America’s population changes. Enter gerrymandering.

Simply put, gerrymandering is the intentional practice of drawing the boundaries of political districts to provide an advantage to a speci c party or group, which in turn has the effect of consolidating political power for that party or group to the exclusion of another.18 Typically, this will be accomplished by using techniques including those known as ‘packing’ and ‘cracking’.19 In the case of a partisan gerrymander, ‘[packing] occurs when map makers concentrate one party’s supporters into one or a few districts. This creates legislative districts with an overwhelming majority of one party’s supporters, decreasing that party’s chances of winning in other districts’.20 Conversely, ‘[cracking] occurs when mapmakers divide an opposing party’s supporters among multiple districts so that they chronically fall short of a majority in each one and are unable to elect a candidate of their choice’.21

The ability of states, or more precisely, those in power in a particular state, to draw their own district lines — increasingly based on high resolution population data that is able to ‘slice up their states with diabolical accuracy’,22 and sophisticated computer programs that are able to draw and test alternative districting schemes in real time23 — is one reason why only about 35 (or 8%) of the 435 seats in the US House of Representatives are estimated to be competitive.24 The same applies at a state level, with, for example, an average of only 12% of state legislative seats considered to be competitive, or in play, across Midwestern states as at January 2022.25

When politicians are able to control the way districts are ‘drawn’ it distorts traditional notions of representative democracy and replaces them with a status quo that sees politicians being able to select their voters, rather than voters being able to select their politicians. That this is acknowledged to be undesirable is also nothing new. In 1812, Elbridge’s map was decried as having ‘[de ed] the will of the people’26 and, as recently as 2019, the Supreme Court has described partisan gerrymandering as being ‘incompatible with democratic principles’.27 Yet, across the US, the practice remains largely legal and, increasingly, beyond judicial reproach.28

By limiting the ability to participate in the selection of their own preferred candidates, the voices of affected voters risk going unheard and unre ected in legislative outcomes at both a state and federal level. This includes in respect of abortion and other reproductive rights-based issues following Dobbs but extends to all manner of issues to which a voting populace may have con icting opinions, including opinions that relate to gun reform, drugs, immigration policy and civil rights.

As David Wells, a leading expert on reapportionment and redistricting, summarised:

Gerrymandering invariably in ates the number of safe districts. Barring a successful primary challenge, the individual incumbent is virtually assured of continued reelection for as long as he or she cares to hold

the seat. This has the effect of insulating the legislative body against the consequences of changing sentiments and circumstances … The political … composition of the legislature has been effectively frozen for a decade, and changes are possible only within a limited, narrow range. The representation system, because it has been made less politically sensitive and therefore less responsive, has thus been rendered less able to perform its most fundamental task — the translation of public sentiment into public policy as accurately as possible.29

Simply put, the incentive for politicians to engage with, and respond to, changing public sentiment is removed from the re-election equation in a state that is the subject of an extreme gerrymander.

III 2020 Re-Districting Cycle

The most recent re-districting cycle took place following the 2020 federal census and the districts drawn will — subject to successful legal challenge — remain in effect until the next round of re-districting following the 2030 census.30 Of the new maps drawn by the respective states and state legislators, 72 cases across 26 states have been brought challenging the legality of those maps.31 42 of these cases remain pending at either the trial or appellate level.32

Primarily, these legal challenges involve allegations that maps have been deliberately drawn to lock in a partisan majority, or even a super majority, that is not re ective of the underlying voting pattern of constituents (partisan gerrymandering),33 or that they have been drawn to intentionally dilute the voting power of minority groups in breach of §§ 2 and 5 of the Voting Rights Act of 1965 (‘Voting Rights Act’)34 by either limiting the number of districts in which minority groups are able to elect a candidate of their choosing, or by not increasing the number of districts where that is a viable possibility (racial gerrymandering).35 This is notwithstanding that, for the rst time in history, communities of colour have accounted for nearly all population increase in the US in the last decade.36

Legal challenges to state-drawn maps have been a persistent feature of American legal jurisprudence since the 1960s, when the Supreme Court began to more actively police gerrymandering practices which had the effect of marginalising ethnic minority groups.37 In a string of cases heard throughout the 1970s, 1980s and 1990s, the Supreme Court re ned sections of the Voting Rights Act and took action to strike down a number of racial gerrymanders.38 However, the landscape has signi cantly changed in recent times with decisions, such as the 2013 case of Shelby County v Holder (‘Shelby’)39 and the recent 2022 decision of Wisconsin Legislature v Wisconsin Election Commission (‘Wisconsin’), substantially curtailing the ability of plaintiffs to challenge an alleged racial gerrymander. 40 In Shelby, the Court ruled § 4(b) of the Voting Rights Act — which had previously provided the mechanism through which jurisdictions with a history of discrimination in voting would be required to pass a federal pre-clearance check prior to signing new maps into law — to be unconstitutional.41 In Wisconsin, the Court held that before adding an additional black majority district in that state, the state must first have considered whether a race-neutral alternative that did not add a further majority-black district would deny black voters equal political opportunity.42 In other words, the Court introduced, for the rst time, a reverse onus in those proceedings. The status of racial gerrymandering claims, and the standard to be applied to their resolution, is set to be tested again in October 2022 with two claims concerning each of Louisiana’s and Alabama’s 2020 maps scheduled to be heard by the Court during that session.43

More concerning still — in relation speci cally to partisan gerrymanders — is the Supreme Court’s 2019 ruling in Rucho. 44 In that case, the Court ruled that whilst the maps drawn by North Carolinian and Maryland legislators were ‘highly partisan, by any measure’,45 claims of partisan gerrymandering were, in fact, ‘non-justiciable’ by federal courts as they ‘present political questions beyond the reach of the federal courts’.46 This is a materially signi cant decision as it arguably forecloses federal adjudication of the issue of partisan gerrymanders altogether. In doing so, it curtails the ability of either Democrats or Republicans to challenge maps drawn by state legislators, which are manipulated to bake in a strong partisan advantage for at least a ten-year period, at the federal level.

Without an ability to meaningfully challenge partisan gerrymanders through the federal courts, and at a point in time where the scope and formula to be applied to claims of racial gerrymandering is subject to ongoing challenge in the Supreme Court, the responsibility for instituting measures to ensure the fairness of maps drawn is increasingly falling to the states themselves, as well as to Congress. Steps taken by some states to address the issue include the creation of independent re-districting commissions intended to remove the authority for drawing legislative districts from politicians and to transfer it to independent groups (albeit in varying degrees and with varying degrees of success).47 Further, since 2005, numerous bills aimed at limiting gerrymandering, and speci cally partisan gerrymandering, have also been introduced in Congress.48 This includes, most recently in 2019, the introduction of the HR1 bill by the Democrats, but also extends to earlier Republicansponsored bills.49 However, none of these bills have passed for the very same reason that partisan gerrymanders exist in the rst place — the presence of selfinterested partisans and the knowledge that gerrymandering, as a political tool, is undeniably lucrative and, in many cases, an almost assured path to incumbency.50 That is to say, gerrymandering serves the political interests of politicians.

IV The Great Disconnect

In Dobbs, the majority cited with approval a passage from Antonin Scalia J in Planned Parenthood of Southeastern Pennsylvania v Casey. 51 In it, his Honour said: ‘[the] permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting’.52 Remove the word abortion and replace it with any number of human rights and civil liberties- based issues, and it is not hard to see the problem with extreme gerrymandering. Citizens can try all they like to persuade each other and turn out to vote, yet, depending on where they live, it still may not matter. Not because they have been ‘out-voted’ by others in the ordinary democratic course (and as is contemplated by Dobbs) but because those in power, both Republican and Democrat, have engineered the outcome in advance.

In this way, the phenomenon of gerrymandering is one explanation for why both state and federal legislators continue to appear so out of step with public opinion on various rights-based issues, including, very recently, when the US was forced to confront another tragic murder of 21 people, including 19 children, in their Texas classroom in a state that does not have universal background checks.53 Further, it is also a key reason why there has been much consternation as to what the majority opinion in Dobbs will mean for other rights-based issues, including same-sex marriage, and what state legislatures (61% of which are currently held by Republicans)54 will make of those issues should they be returned to their legislative remit at a state level.

All of this is to say that, whilst the premise of the majority judgment in Dobbs is that it is, in fact, people who have the power, it is not at all clear in 2022 America that this is the case. For Australians, it should also serve as an invitation for us to re ect upon our most recent election experience. The 2022 Australian Federal election saw 16 crossbenchers ascend to our House of Representatives, and 18 to our Senate.55 It resulted in 21 seats being ipped, including nine that had been previously considered ‘safe’ or ‘fairly safe’ seats,56 and heralded in a generation of community-based, independent candidates running on issues that those candidates were told by voters matter to them — issues like anti-corruption, gender equality and action on climate.57

Ours is a political system that is far from perfect, but without an ability for politicians to draw their own electoral maps and an independent federal Australian Electoral Commission tasked with ensuring it remains that way, it is one step closer to being ‘for the people’. Let it be an example.

1 Dobbs v Jackson Women’s Health Organization, 142 S Ct 2228 (2022) (‘Dobbs’). 2 Ibid 2240 (Alito J for Alito, Thomas, Gorsuch, Kavanaugh and Barrett JJ). 3 Ibid 2305 (Kavanaugh J). 4 Pew Research Center, America’s Abortion Quandary (Report, 6 May 2022) 8. 5 Allison McCann and Taylor Johnston, ‘Where Abortion Could be Banned without

Roe v Wade’, The New York Times (online, 3 May 2022) <https://www.nytimes. com/interactive/2022/us/abortion-bans-restrictons-roe-v-wade.html>. 6 Ohio Rev Code Ann § 2919.193 (2021), noting, however, that the ban is now blocked pending the outcome of a lawsuit led against it: see, eg, Julie Carr

Smyth, ‘Judge Blocks Restrictive Ohio Abortion Law as Suit Proceeds’, The

Seattle Times (online, 7 October 2022) <https://www.seattletimes.com/seattlenews/health/judge-hears-arguments-in-challenge-to-ohio-abortion-law/>. 7 ‘Elections in Wisconsin’, Wisconsin Historical Society (Web Page) <https://www. wisconsinhistory.org/Records/Article/CS1839>. 8 Wis Stat § 940.04 (2022). 9 See Pew Research Centre (n 4) 29, noting that, eg, 80% of Democratic voters poll in favour of abortion being legal in most or all cases. See also Jeffrey M

Jones, ‘Democratic States Exceed Republican States by Four in 2018’, Gallup (online, 22 February 2019) <https://news.gallup.com/poll/247025/democraticstates-exceed-republican%20%20%20states%20%20%20four-2018.aspx>. 10 United States Constitution art I § 2. 11 See generally ‘Final REDMAP Report’, REDMAP: The Redistricting

Majority Project (Web Page) <http://www.redistrictingmajorityproject. com/>; Julian E Zelizer, ‘The Power That Gerrymandering Has Brought to

Republicans’, The Washington Post (online, 17 June 2016) <https://www. washingtonpost.com/opinions/the-power-that-gerrymandering-has-brought-torepublicans/2016/06/17/045264ae-2903-11e6-ae4a-3cdd5fe74204_story.html>. 12 Christopher Esposito, ‘Gerrymandering and the Meandering of Our Democratic

Principles: Combating Partisan Gerrymandering after Rucho’ (2020) 30(1)

Southern California Interdisciplinary Law Journal 195, 197. 13 Ibid 198 (noting that, whilst rst coined in 1812, the practice of gerrymandering can be traced back even earlier to 1788). See also Greg Miller, ‘The Map

That Popularised the Word Gerrymander’, National Geographic (online, 6

November 2018) <https://www.nationalgeographic.com/culture/article/ map-gerrymander-redistricting-history-newspaper>. 14 See, eg, Nick Corasaniti and Reid J Epstein, ‘As Both Parties Gerrymander Furiously,

State Courts Block the Way’, The New York Times (online, 4 April 2022) <https://www. nytimes.com/2022/04/02/us/politics/congressional-maps-gerrymandering-midterms. html>; Michael C Li et al, ‘Redistricting: A Mid-Cycle Assessment’ (Research Report,

Brennan Center for Justice, New York University School of Law, 19 January 2022) 5. 15 ‘About Congressional Districts’, United States Census Bureau (Web Page) <https://www.census.gov/programs-surveys/geography/guidance/geo-areas/ congressional-dist.html>. 16 Justin Levitt, Brennan Center for Justice, A Citizen’s Guide to Redistricting (Report, 2010) 2, 6–7 <https://www.brennancenter.org/sites/default/ les/ analysis/a-citizens-guide-to-redistricting.pdf>. 17 See Wesberry v Sanders, 376 US 1, 7–8 (1964) (Black J). 18 John P Rafferty, ‘What Is Gerrymandering?’, Encyclopedia Britannica (Web

Page) <https://www.britannica.com/story/what-is-gerrymandering>. 19 But are not con ned to those techniques. See, eg, explanation of ‘matching slices’ techniques in Adam B Cox and Richard T Holden, ‘Reconsidering Racial and Partisan Gerrymandering’ (2011) 78(2) University of Chicago Law Review 553, 567. 20 Esposito (n 12) 196 (citations omitted). 21 Ibid. 22 ‘Opinion: This is Gerrymandering at its Worst. It Doesn’t Have to be this Way’, The

Washington Post (online, 4 February 2022) <https://www.washingtonpost.com/ opinions/interactive/2022/gerrymandering-examples-north-carolina-illinoisalabama-texas-how-to- x/>. 23 John N Friedman and Richard T Holden, ‘Optimal Gerrymandering: Sometimes

Pack, But Never Crack’ (2008) 98(1) American Economic Review 113, 117. 24 Lee Drutman, ‘What We Lose When We Lose Competitive Congressional

Districts’, FiveThirtyEight (online, 23 June 2022) <https:// vethirtyeight.com/ features/what-we-lose-when-we-lose-competitive-congressional-districts/>. 25 Tim Anderson, ‘Most State Legislative Districts Appear “Safe” of Much Partisan

Competition in Years Ahead’, The Council of State Governments Midwestern Office (Web Page, 31 January 2022) <https://csgmidwest.org/2022/01/31/most-statelegislative-districts-appear-safe-of-much-partisan-competition-in-years-ahead/>. 26 Kai Hao Yang and Alexander K Zente s, ‘Gerrymandering and the Limits of

Representative Democracy’ (Discussion Paper No 2328, Cowles Foundation for

Research in Economics, March 2022) 1. 27 Rucho v Common Cause, 139 S Ct 2484, 2491, 2512 (2019) (Roberts CJ for

Roberts CJ, Thomas, Alito, Gorsuch and Kavanaugh JJ) (‘Rucho’). 28 See Part III. 29 Esposito (n 12) 206, quoting Douglas J Amy, ‘How Proportional Representation

Would Finally Solve Our Redistricting and Gerrymandering Problems’, FairVote (Web Page) <https://fairvote.org/archives/how-proportional-representationwould- nally-solve-our-redistricting-and-gerrymandering-problems/>. 30 Levitt (n 16) 16. 31 As of 16 August 2022. See ‘Redistricting Litigation Roundup’, Brennan Center for Justice (Web Page, 12 October 2022) <https://www.brennancenter.org/ our-work/research-reports/redistricting-litigation-roundup-0>. 32 Ibid. 33 See, eg, congressional challenges: Harkenrider v Hochul (NY Sup Ct, No

E2022-0116CV, commenced 3 February 2022); Republican Party of New

Mexico v Oliver (NM D Ct, No D-506-CV-202200041, commenced 21 January 2022); and state legislative challenges: Moore v Lee (Tenn Ch Ct, No 22-0287-

IV, commenced 23 February 2022); Covert v 2021 Pennsylvania Legislative

Reapportionment Commission (Pa Sup Ct, No 4 WM 2022, 16 March 2022). 34 52 USC (1965) (‘Voting Rights Act’). 35 See, eg, congressional challenges: Arkansas State Conference NAACP v

Arkansas Board of Apportionment (ED Ark, No 4:21-CV-1239, commenced 29

December 2021); Common Cause v Raffensperger (ND Ga, No 1:22-CV-90, commenced 7 January 2022); Fair Maps Texas Action Committee v Abbott (WD

Tex, No 1:21-CV-1038, commenced 16 November 2021); and state legislative challenges: Turtle Mountain Band of Chippewa Indians v Jaeger (D ND, No 3:22-

CV-22, commenced 7 February 2022); Nairne v Ardoin (MD La, No 3:22-CV-178, commenced 14 March 2022). 36 National Urban League, ‘Under Siege: The Plot to Destroy Democracy’ (Report, 2022) 13. 37 Esposito (n 12) 199. 38 Ibid. 39 Shelby County v Holder, 570 US 529 (2013) (‘Shelby’). 40 Wisconsin Legislature v Wisconsin Elections Commission, 142 S Ct 1245 (2022) (‘Wisconsin’). 41 Shelby (n 39) 530, 557 (Roberts CJ for Roberts CJ, Scalia, Kennedy, Thomas and Alito JJ, Thomas J agreeing at 557). 42 Wisconsin (n 40) 1250–1. 43 See Galmon v Ardoin (MD La, No 3:22-CV-214, commenced 30 March 2022);

Robinson v Ardoin (MD La, No 3:22-CV-211, commenced 30 March 2022); Milligan v Merrill (ND Ala, No 2:21-CV-1530-AMM, commenced 16 November 2021). 44 Rucho (n 27). 45 Ibid 2491 (Roberts CJ for Roberts CJ, Thomas, Alito, Gorsuch and Kavanaugh

JJ). 46 Ibid 2485, 2506–7. 47 Esposito (n 12) 211–15. 48 Ibid 208. 49 Ibid 207–8. 50 Ibid 202. 51 Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 979 (1992). 52 Dobbs (n 1) 2243 (Alito J for Alito, Thomas, Gorsuch, Kavanaugh and Barrett JJ). 53 Madeline Carlisle, ‘Texas’ Gun Laws Have Become Looser in Recent

Years. The Uvalde School Shooting Likely Won’t Change That’,

Time Magazine (online, 25 May 2022) <https://time.com/6181405/ texas-gun-laws-uvalde-school-shooting/>. 54 ‘State Partisan Composition’, National Conference of State Legislatures (Web

Page, 6 January 2022) <https://www.ncsl.org/research/about-state-legislatures/ partisan-composition.aspx>. 55 ‘House of Representatives: Final Results’, Australian Electoral Commission (Web Page, 1 July 2022) <https://results.aec.gov.au/27966/Website/

HouseDefault-27966.htm>; ‘Senate Composition’, Parliament of Australia (Web

Page, 1 July 2022) <https://www.aph.gov.au/Senators_and_Members/Senators/

Senate_composition>. 56 Josh Nicholas, ‘Five Graphs That Show How Australian Voters

Turned on the Coalition’, The Guardian (online, 1 June 2022) <https://www.theguardian.com/news/datablog/2022/jun/01/ ve-graphs-that-show-how-australian-voters-turned-on-the-coalition>. 57 Damien Cave, ‘How a Group of Female Independents Aim to Revive Australian

Democracy’, The New York Times (online, 20 May 2022) <https://www.nytimes. com/2022/05/19/world/australia/federal-election-independents.html>.