The Consequences of Gerrymandering

The days of legal challenges against gerrymandering popping up only every ten years are gone. At least once a day, I see a headline about gerrymandering, mostly about ongoing lawsuits filed against an array of state district maps. But what is gerrymandering?

Gerrymandering: A History

Gerrymandering, or drawing district lines to favor one political party over the other in elections, started in 1812 when Massachusetts officials drew election districts to ensure a win for members of their political party.

You can achieve this result by packing voters affiliated with a political party into a few election districts or cracking the members of a political party into numerical minority voting blocs scattered across several districts. Both tactics can ensure one party wins, making it almost impossible for many voters to elect their preferred candidates.

The Massachusetts Governor at the time was Elbridge Gerry, and one of the rigged districts looked like a salamander; hence, a local newspaper editor invented the word gerrymander.

The newspaper criticized the practice as corrupt and a form of cheating.

Why were political parties allowed to pick their voters?

Our founders purposely wrote the Constitution in vague terms, especially regarding voting and elections, because many states had adopted various election rules and practices before the Constitution was written.

To avoid endorsing one state’s practices over another, which would have caused a firestorm, the founders threaded the political needle with silence. If the people eventually reached consensus on voting and election practices, the founders included an amendment process so reformers could add to the Constitution.

The rise of two political parties was the variable that opened the door to gerrymandering. The founders believed the nation was too diverse for political parties to form; hence, the Constitution is also silent on the parties' role in our representative democracy. With devastating consequences, they failed to anticipate the impact of these powerful private political actors.

Once the political parties took over our government, they could block anti-gerrymandering laws and constitutional amendments. So, the evolution of statutory redistricting reform has been very slow.

Today, we usually associate challenges to gerrymandering with court rulings, so why didn’t reform move faster through the judiciary?

For the courts to accept a lawsuit, the plaintiff must prove standing, meaning that they are experiencing some harm based on federal or state constitutional standards or federal or state law. Because the original US Constitution was silent, it wasn’t until voting rights and election amendments were added that the courts began accepting gerrymandering cases.

In the 1960s, reformers had added enough amendments and laws to allow the courts to intervene. The 14th, 15th, 17th, 19th, 20th, 22nd, 23rd, and 24th amendments established constitutionally protected voting rights and election processes.

In 1964 and 1965, Congress also passed the Civil Rights and Voting Rights Acts, which covered voting rights and redistricting. The Voting Rights Act specifically addressed racial gerrymandering in response to the Civil Rights movement.

How are racial and political gerrymandering different?

In racial gerrymandering, voters are packed and cracked based on race, not political affiliation. Still, historically, voters of color have registered more with the Democratic Party, so racial gerrymanders tended to harm the Democrats more than the Republicans. Democrats have therefore filed more legal challenges to redistricting maps, but that does not mean Democrats refrain from gerrymandering.

Legal redistricting dynamics changed in 2018 with Rucho v. Common Cause, when the U.S. Supreme Court established that partisan gerrymandering was no longer justiciable in federal courts.

This meant federal courts would no longer accept partisan gerrymandering cases due to a lack of clear federal restrictions against it. The Court advised plaintiffs to file partisan gerrymandering cases in state courts, based on state constitutions and laws.

Consequently, a flurry of ballot questions were filed across many states to create independent redistricting commissions to combat partisan gerrymandering. These ballot questions were not identical, but they all aimed to limit political influence over redistricting.

Where is Nevada on the gerrymandering scale?

Redistricting must occur after the Census count every ten years, so the last redistricting cycle occurred in Nevada at the end of 2021. Our state Constitution does not limit redistricting to once every ten years; it just mandates that it happens at least every ten years.

The Nevada Constitution gives our legislature redistricting power, and the majority party commonly redraws the maps during the legislative session after the Census. But this time, due to the pandemic, the Census reports were late, so legislative Democrats created our current maps in a special session in November of 2021.

In the 2020 election cycle, I was part of the League of Women Voters' effort to establish independent redistricting commissions in all 50 states. When we filed Nevada’s ballot petition in November of 2019 to qualify for the 2020 ballot, an attorney and plaintiff connected to the Democratic Party sued to have the petition disqualified by a judge.

During the case, the plaintiff’s attorney wrote in a court brief that the ballot question would deny Democratic voters the right to elect a Democratic majority with the power to draw friendly maps. But that argument lost.

In the end, the COVID-19 virus made it impossible to gather signatures, so the ballot petition failed.

In 2020, the Democrats elected majorities in both legislative houses, and the Governor was a Democrat, so it was unsurprising that the Princeton Gerrymandering Project gave Nevada’s 2021 redistricting maps an overall F grade. https://gerrymander.princeton.edu/redistricting-report-card/?planId=recgGfMfAihVe5m1x

Gerrymandering can easily lead to voter suppression and poor governance.

Gerrymandering translates into uncompetitive races, and uncompetitive races translate into elected officials who assume they cannot lose. Candidates who think they cannot lose are not motivated to talk to voters to earn votes.

When this happens, voters can become disillusioned about their ability to hold their elected officials accountable at the ballot box. From there, it doesn’t take much to go from being a disillusioned voter to a nonvoter.

Ultimately, elected officials who believe they can’t be voted out are unaccountable and tend to govern based on metrics that often align with donors instead of voters.

What can we do?

Despite the Democratic Party and aligned nonprofit organizations supporting an Ohio independent redistricting commission ballot petition that is almost identical to the Nevada independent redistricting commission ballot initiative, Nevada’s Democratic Party is determined to use the courts to block our right to run and vote on a redistricting commission ballot question.

However, in this legislative session, Assemblymember Heidi Kasama sponsored Assembly Joint Resolution 5, which would have placed the redistricting process under the Open Meeting Law and Public Records Act. Meaning the people’s legislative maps would no longer be drawn in secret.

AJR5, however, did not receive a hearing, but it is possible someone could run it as a ballot question in 2026. Putting redistricting under the Open Meeting Law and the Public Records Act will at least clarify who is involved with the map-drawing process in 2031.

Senate Joint Resolution 6, from Senator Ira Hansen, creates an independent redistricting commission similar to our ballot question proposal. As SJR6, the commission is now vetted and written by the attorneys who work for the legislature.

It will be interesting to see if the Democrats decide to legally challenge something written by the Legislative Council Bureau if someone runs SJR6 as a ballot question.

Lastly, the state’s political demographics are changing, with double-digit monthly increases in voters registering as nonpartisans. Therefore, the number of partisans in each district who can be gerrymandered may be too small in 2031 to give an advantage to either party.

This could be one of the many blessings of the independent voter movement: Gerrymandering will no longer undermine our democracy.