The 2020 census has concluded, which means it's time for states to redraw their congressional districts. Today we're exploring partisan gerrymandering, the act of drawing those maps to benefit one party over the other. In this episode you'll learn about stacking, cracking, packing, and many other ways politicians choose voters (instead of the other way round).
Taking us through the story of Gerry's salamander and beyond are professors Justin Levitt, Robin Best, and Nancy Miller.
Click here for a graphic organizer for students to take notes upon while they listen to the episode.
Transcript
Nick Capodice: Ok. Ok. Yeah. Ok, hold on. Ok. Take a look at this. Ok.
Hannah McCarthy: It's like a Rorschach test.
Nick Capodice: Ok, so that's Maryland's Third District, and it's called it's nicknamed the praying mantis. Check this one out.
Hannah McCarthy: There's a long thing that could be like a trunk that looks like it might be like squirting water out of it.
Nick Capodice: That's Texas's Thirty Fifth District, and it's nicknamed the Upside-Down Elephant.
Hannah McCarthy: Is it [00:00:30] Rorschach or Rorschach?
Nick Capodice: Rorschach.
Hannah McCarthy: Good I got it right.
Nick Capodice: There's an old joke like, Who is this guy Rorschach? And Why did he draw so many pictures of my parents fighting?
Hannah McCarthy: Yeah, that's funny. This one looks like someone like yelling at someone else and kicking their butt.
Nick Capodice: That is Pennsylvania's 7th District. It doesn't exist anymore, and it's got my favorite nickname, which is Goofy kicking Donald Duck.
Hannah McCarthy: So these are congressional districts, right? Why do they look so weird?
Nick Capodice: Ok, so you know, every two years, a bunch of Americans go into a voting [00:01:00] booth and they pick someone, right?
Hannah McCarthy: Yes, voting.
Nick Capodice: What these are extreme instances of are not citizens picking representatives. But representatives picking them. You're listening to Civics 101, I'm Nick Capodice,
Hannah McCarthy: I'm Hannah McCarthy,
Nick Capodice: And today we are talking about gerrymandering, the political maneuver of drawing a map to divide voters so on Election Day, one party is more likely to win [00:01:30]. To start off, if you live in the United States, you live in a congressional district. Your physical address determines who you can vote for in an election. And even if you live in a state that only has one district, your address still matters because it determines who you can vote for in your state legislature.
Hannah McCarthy: And I know that as we speak November 2021, these maps are being drawn, right?
Nick Capodice: Yes, they are, because we draw our state and federal congressional districts after each census.
Hannah McCarthy: I have heard news stories from multiple [00:02:00] states about these new maps. Nick, people care so deeply about them, and I think that that's in part because we are going to be stuck with them for 10 years.
Nick Capodice: And because of that, Hannah, gerrymandering is always a current events issue.
Justin Levitt: Well it's no surprise if I could guarantee my job in the job of my friends and guarantee that I could punish the people I don't like. I'd be mighty tempted to use that power, no matter what field that we're in.
Nick Capodice: This is Justin Levitt. He's a professor of law at Loyola Marymount [00:02:30] University.
Justin Levitt: Legislators aren't any different. Legislators. They're just like us. And since the dawn of the redistricting process, legislators have used the power to draw the lines to reward their friends and punish their enemies.
Hannah McCarthy: This is interesting. I tend to think of gerrymandering as this modern day political practice that involves computers and data analysis and a lot of critique. But it sounds like Justin is saying that this is something that we have always done.
Nick Capodice: Always, since the very beginning before we even had a word for it. [00:03:00] Some scholars have suggested that Patrick Henry, Mr. Give me liberty or give me death, almost gerrymandered James Madison out of Congress in 1788 by redrawing Virginia's maps. But I'm going to jump ahead to the creation of the term, which is in 1812, and I'm going to start with the fact that we're probably saying it wrong.
Nancy Miller: You reached out to your nana to see if there's anything you wanted me to to address to the congressman when he comes out next.
Yes, she had a few things. She said he should know that his district was the first to be gerrymandered. And I said, Yeah, I know. Yeah,
Nick Capodice: That [00:03:30] was John Mulaney on Late Night with Seth Meyers and his grandmother's right. The term comes from that signer of the Declaration of Independence, Massachusetts Gov. Elbridge Gerry. Gerry was a Democratic Republican at the time, and he signed a redistricting act that cut up the districts of Essex County so it would be much harder for the other party, the Federalists, to get any seats in the Legislature. And the map of these [00:04:00] districts was such a long, curved shape that a cartoonist put wings and a reptilian head on it and published it in the Boston Gazette with the name Gerrymander. It's a portmanteau word of Gerry and Salamander.
Hannah McCarthy: Now I'm not a herpetologist here, but I don't believe that salamanders have wings.
Nick Capodice: That's fair. I think it comes from when we used to use the word salamander to just mean dragon.
Hannah McCarthy: Was that 1812 gerrymander successful?
Nick Capodice: Lord Yes. In the following election, Federalists won [00:04:30] only a third of seats in the state legislature, even though they had a majority of the popular vote.
Hannah McCarthy: But how does that work? How do these maps hold so much power?
Nick Capodice: Well, to understand gerrymandering, we have to first understand the process that we're going through now, congressional redistricting. And Justin told me that redistricting is one of the most important facets of our democracy because whatever you care about Hannah, whether it's like national security or universal health care or a woman's right to choose or gun rights, [00:05:00] whatever, it all comes down to our election process, we do things through the representatives that we elect.
Justin Levitt: And if you care about the election process, then you care about redistricting. It's the infrastructure of infrastructure. It's how we do absolutely everything else because it makes sure that some voices get lifted up in choosing who those representatives will be that decide what kind of a world we're going to be living together.
Nancy Miller: Redistricting [00:05:30] is something we have to do, or it's it's good that we have to do it every 10 years now since the 1960s, because people move around.
Nick Capodice: This is Professor Nancy Miller. She teaches political science at the University of Dayton.
Nancy Miller: From a congressional standpoint, we've decided that the House of Representatives is going to be 435 people, and I don't think there's any appetite to make that larger right now. And so people move from the northeast to the South or the Midwest to the South. Sometimes they move from the south [00:06:00] up to the Pacific Northwest. And in order to keep with the principle of one man, one vote, some states have to lose some seats and some states will gain some seats. And if you're going to change the number of seats in a state, then you, of course, you've got to redraw the lines.
Nick Capodice: And if we're keeping the house at four hundred and thirty five members, it's only fair that each of those members represents about the same number of people.
Nancy Miller: So what would commonly happen in particular in state legislatures, [00:06:30] but also in congressional delegations? Oftentimes, they would just map districts on the counties like, especially at the state legislative level. And as cities grew, there was a lot of what we would call malapportionment.
Hannah McCarthy: It's called malapportionment,
Nick Capodice: Malapportionment. Apportionment that is unfair. So you'd have a city of a million people represented by one person and then a lot of rural communities of like 20000 people with one representative each for those. So if you [00:07:00] lived in the city, your vote meant a lot less. And there were fewer people in Congress standing up for city issues.
Nancy Miller: So rural rural interests were always dominating the Legislature. Oftentimes to the detriment of urban populations, which couldn't get some of the services or the infrastructure things they needed because it wasn't a priority for rural legislators
Nick Capodice: On the national level there are four hundred and thirty five congressional districts in the United States, and each one represents about seven hundred thousand [00:07:30] people. There are some exceptions, though.
Hannah McCarthy: For example, I'm thinking of those states that have one congressional district and a smaller population than 700000, like Wyoming.
Nick Capodice: Yeah, Vermont. Those outliers aside, since the 1960s, every 10 years after each federal census states redraw their federal congressional districts and their state congressional districts to make sure that malapportionment doesn't occur. And this process is when we get to the world of the praying mantis, the upside-down elephant, [00:08:00] goofy kicking Donald Duck.
Robin Best: Partisan gerrymandering, of course, doesn't have to happen.
Nick Capodice: This is Professor Robin Best, who teaches political science at Binghamton University.
Robin Best: But the redistricting process that happens every 10 years gives the people drawing these lines the opportunity to draw those lines in a way that might advantage one political party and disadvantage the other political party. After the last round of redistricting in 2010, [00:08:30] we saw a good number of people drawing those district lines actually do so to try to benefit one party at the expense of the other.
Hannah McCarthy: And that is what separates redistricting from gerrymandering. Right. Redistricting is a necessary democratic process, but gerrymandering is done to favor one party.
Nick Capodice: Yes, and there are three tried and true methods of gerrymandering packing, cracking and [00:09:00] stacking, and we're going to cover all three. First up, packing
Robin Best: When you pack partisans, you cram as many of them as you possibly can into a few districts as possible. So for example, if you are Republicans and you want to advantage your own party when you're drawing district lines, you would try to cram as many Democratic voters into a few districts as possible. And you kind of give them those districts, right? So say you [00:09:30] have 10 districts that you're trying to create. You put as many Democrats as you can into two of them where they constitute like a ninety five percent majority. You give them those two districts and then you spread out your Republicans across the remaining eight districts so that you receive a majority of the vote in each of those districts.
Nick Capodice: And cracking is the opposite. Let's say you're a Democrat-controlled legislature and you want to draw a map that favors your party, the Democrats. So what you do is you take a Republican district [00:10:00] and you crack it up, putting those Republican voters into nearby Democrat dominant districts. So instead of four super blue districts and one Super Red District, you have five barely blue districts, five Democratic elected officials.
Hannah McCarthy: Ok. It seems to me, then, that the most dastardly gerrymander, the perfect crime, if you will, would be to crack districts so deftly that your party wins every district by the slimmest margin. [00:10:30]
Nick Capodice: And that is a map, just like goofy kicking Donald Duck. Pennsylvania's 7th District, it so obviously cracked several urban neighborhoods into outlying rural areas that there was a public outcry and a lawsuit. Party leaders couldn't agree how to fix it, and it fell to the Pennsylvania Supreme Court to redraw the district more equitably in 2018.
Hannah McCarthy: All right. I got packing. I got cracking. But stacking is one that I have never heard of
Nick Capodice: Yeah, stacking is, in my opinion, the most nefarious. When [00:11:00] you stack a congressional district, you draw the lines to create a perceived majority in it. A majority of people who are either minorities and a lower income bracket or less educated three demographics that statistically due to various circumstances, have a much lower voter turnout than educated, wealthy white voters.
Hannah McCarthy: So it's kind of like misdirection. You grant a clear majority presence in a district. The official, elected [00:11:30] in November, is not the one who represents the majority of people who live there.
Nick Capodice: Absolutely. And there are other methods of gerrymandering that don't get talked about as much. I just want to give them a brief mention here. There's prison-based gerrymandering where a district with a large incarcerated population which cannot vote counts those citizens as part of that district's population instead of their hometown, giving that district more representative power. And finally, there's sweetheart gerrymandering. That's where incumbents [00:12:00] from both parties reach a tacit handshake, an agreement to draw the lines so everybody just gets to keep their job.
Hannah McCarthy: Who specifically is in charge of physically drawing these maps?
Nick Capodice: All right, here's Robin again.
Robin Best: Yes, that is actually probably the most important question. So in the majority of states, the state legislatures will draw the lines and then often the maps that they create have to be approved by the governor in a much smaller proportion of states. The lines are drawn by redistricting [00:12:30] commissions, some of which are independent, some of which are political, some of which are bipartisan. There are lots of different variations of those, but in the vast majority of states, they're still drawn by state legislatures.
Nick Capodice: And those variations are interesting. Some states have independent commissions that draw the maps, and each commission is completely different. California's redistricting commission comprises five Democrats, five Republicans and four individuals unaffiliated with any party drawn by a lottery. But as of right now, maps are [00:13:00] drawn by the state legislature in thirty three states.
Robin Best: And as you can imagine, you know, the state legislatures are not entirely neutral observers of elections. So we actually see we tend to see the more egregious gerrymanders occur as a result of the lines that are drawn by state legislatures with approval of the governor. So when one party, for example, controls all three branches of the state government, we call that a trifecta. Under those trifecta, [00:13:30] we are likely to see the more egregious gerrymander to take place. If there is divided control, so a legislature of one party and a governor from another party, we're less likely to see those types of kind of egregious partisan gerrymanders.
Hannah McCarthy: As to the result of those different gerrymanders, I do happen to know that they are tremendously effective. Most significantly, I know that in 2012, Democrats received over a million more votes for the House, but [00:14:00] the GOP won a thirty three seat majority. Which brings me to a bigger question. Is this legal?
Nick Capodice: A good question, and one that I'm going to get to right after the break.
Hannah McCarthy: Ok, but before that, I want to tell listeners that they can read all about the deep dives that are too full of ephemera and trivial tidbits to make it into our show in our free, biweekly newsletter. It's called extra credit. You can subscribe at our website, civics101podcast.org
Nick Capodice: And quickly, speaking [00:14:30] of reading, Hannah and I took the stuff we've learned from making three years worth of episodes and compressed it into a book. It's called A User's Guide to Democracy, How America Works. It's illustrated by the wonderful New Yorker cartoonist Tom Toro. You can get it wherever you get your books.
Nick Capodice: Ok, we're back, where were we?
Hannah McCarthy: You were about to answer the question of whether all of this is legal.
Nick Capodice: Ok. Here's Nancy Miller again.
Nancy Miller: So there were two cases in the nineteen sixties Reynolds V. Sims and Baker [00:15:00] V. Carr. So everybody's probably mostly familiar with Baker V. Carr, because that's the congressional one. Reynolds V. Sims handled state legislative districts, so it's basically the same principle that the districts you draw have to allow for roughly equal representation.
Nick Capodice: Both of these cases ruled that redistricting is a justiciable issue. It's a funny word. Justiciable. Justiciable means it's something that can be addressed by the Supreme Court or the State Supreme Court. And those two decisions dealt with equal numbers [00:15:30] of people in districts that malapportionment thing we talked about earlier. These are the cases that ruled we are obligated to redraw our maps after every census, and you can't draw a district so that it has significantly fewer citizens than another.
Hannah McCarthy: Did we redraw them at a different time prior to these court cases?
Nancy Miller: Prior to the nineteen sixties, the districts were just redrawn whenever the state felt like it. Pretty much so. There was a whole, yeah. So there was a whole lot of malapportionment.
Nick Capodice: But while [00:16:00] the Supreme Court ruled that in equal numbers of people in a state and federal districts is unconstitutional when it comes to the issue of partisan gerrymandering, I'm talking, cracking, packing and stacking. That is something else entirely.
Chief Justice Roberts: And others set forth, in our opinion. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. We vacate the judgments below and remand with instructions to dismiss...
Nick Capodice: That was Chief Justice John Roberts announcing the 2019 [00:16:30] decision in Rucho V. Common Cause. It was a five to four decision which stated that partisan gerrymandering claims are not justifiable. The Supreme Court cannot rule on questions of a political nature, and it's no surprise that John Roberts wrote the opinion because a year earlier, in another case, he referred to methods to determine partisan gerrymandering as "sociological gobbledygook."
Hannah McCarthy: I didn't know you were allowed to use the word gobbledygook when you were a chief justice. So we [00:17:00] know that this is happening, political scientists agree that gerrymandering is real, but it is not technically illegal.
Nick Capodice: It is not technically illegal at the federal level. Some states have legislation that bans certain types of gerrymander, like the prison gerrymander we spoke of earlier. Twenty four states have laws requiring that maintaining communities of interest has to be considered when they're drawing the maps. But even then, it's not easy to prove in a court of law if gerrymandering is happening [00:17:30]. And Justin Levitt told me that just because a map looks strange and snaky, that doesn't mean it's necessarily a gerrymander.
Justin Levitt: It's dangerous to judge a book by its cover. And so you can have some really nice looking districts that do some pretty bad things, and you can have some strange looking districts that do some pretty great things.
Hannah McCarthy: So we've talked about strange and like bad maps a lot so far. But can you give me an example of a strange but positive map?
Nick Capodice: Yeah, and radio [00:18:00] is a bad medium to talk about map design, but listeners should take a look at Illinois's 4th Congressional District. It looks absurd. It's like, what do you call the thing you like in a movie and you say... a clapperboard? It's like a clapperboard on a movie set. But what that strange clapperboard district does is it unites two Latino communities that share a lot of characteristics and thus a lot of representational needs.
Justin Levitt: And so it's not often the strangely drawn nature of a district that [00:18:30] tells you whether it's good or bad. People make assumptions just like they make assumptions about other people based on how they look that aren't always true.
Hannah McCarthy: Can I ask about the argument that we should just do away with human beings drawing districts entirely and just let a computer do it randomly?
Nick Capodice: Yeah, I always thought, that's like the perfect solution. It's just, you know, take the humans out of the equation, and there are a lot of people who do advocate for that. But I want to share two arguments against random redistricting. First off, Robin said even [00:19:00] that could favor one party over the other.
Robin Best: The problem was kind of the natural geography in the U.S. is that Democrats tend to be very packed together. So New York City, you can't really draw competitive districts in New York City. They are going to be packed full of Democrats, no matter what you do. So a lot of those votes are not going to kind of be effectively used. They're just going to be wasted. So the entire country actually kind of looks like that. So you have Democrats that are kind of packed more tightly [00:19:30] into these urban geographic centers and Republican votes that are distributed kind of more efficiently is what we call it in terms of elections across the other areas in the state. So that if you just kind of let the computer draw the maps, you're likely to just perpetuate that kind of natural gerrymander that's already in place, which is then going to end up being a bit biased against Democrats and in favor of Republicans.
Nick Capodice: And finally, Justin said something that made me realize that when I was staring at maps and numbers, [00:20:00] I had lost sight of the whole reason we have congressional districts in the first place. Hannah, why do we elect our representatives in the United States?
Hannah McCarthy: Because they represent us. It is, it's right there in their name, representative. And if we feel they don't do a good job representing us, we get to pick someone else
Nick Capodice: And it's much easier to gauge how well they're doing at it if people in their district have things in common.
Justin Levitt: Sometimes those are geographic [00:20:30]. People from a particular town or particular county. Sometimes that's based on industry. Sometimes it's based on racial or ethnic affiliation. It can be based on lots of things. But when people have common interests, when a community together as common interests, they can hold their representatives accountable for whether their representatives are standing up and representing those interests or not. If your district represents the tech sector, then your representative should be out there advocating for the tech sector in ways [00:21:00] that are Republican or Democrat, but should be advocating for the tech sector. If your district represents St. Louis, then your representative should be advocating for St. Louis. Whether they're Republican or Democrat should also be advocating for St. Louis. So there's a lot to be said for having districts where there's something common about the people who live in the district. There's something that binds them together beyond just party. And when you have districts that are created to reward or punish friends or enemies, that [00:21:30] makes it really hard to hold the representatives accountable.
Hannah McCarthy: So when I asked if gerrymandering is legal, the answer is kind of like the answer to Can I make a right on a red light? It depends where you are.
Nick Capodice: Yeah, though I will add there is language in the Freedom to Vote Act, which was introduced in the Senate in October of Twenty Twenty One, which explicitly bans partisan gerrymandering, and it puts up safeguards to fix maps that are unfairly drawn. But [00:22:00] the bill did not get the 60 votes needed to overcome the filibuster. But to your question, gerrymandering can be legal depending on your state.
Hannah McCarthy: May I take the question just one step further?
Nick Capodice: Yeah.
Hannah McCarthy: Is gerrymandering cheating?
Nick Capodice: That was a real... That was a really hard question, because like when you Google is gerrymandering cheating, you're not going to get an answer. Yeah, I didn't. I didn't ask Robin that when I was interviewing her, so I wrote her an [00:22:30] email after to ask that exact question. And here's her response to Is gerrymandering cheating? She says, I think it would be fair to say that partisan gerrymandering violates our notions of fairness and democratic principles. So would most of the population view it as cheating, even if it's not explicitly illegal? Yes. Probably.
Nick Capodice: And [00:23:00] that is it for gerrymandering. Today's episode was produced by me Nick Capodice with You Hannah McCarthy. Thank you.
Hannah McCarthy: Thank you. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer and stan of the Nicholas Cage Vehicle, Valley Girl. Music.
Nick Capodice: Music in today's episode by Blue Note Sessions, Sir Cubworth, Quincas Moreira, Cory Gray, Makiah Beats, Ikimashu Oi, and that composer with the chords never miss-keyed, Chris Zabriskie.
Hannah McCarthy: Civics 101 is a production of Nhpr.org New [00:23:30] Hampshire Public Radio.