For the past two decades, Democrats have complained bitterly about the evils of gerrymandering. Republicans have used advanced computer models to refine the use of an old political tactic, they charge, and the practice is threatening democracy. Seen from this perspective, the GOP’s ability to control the House of Representatives for 20 out of the past 24 years is nothing but the result of cheap tricks that enabled them to prevail even though Democrats often win more overall votes.
That’s why Democrats think they have a lot riding on the outcome of two cases before the U.S. Supreme Court due to be decided next month. These cases might establish a new precedent in banning the drawing of legislative districts to give a partisan advantage to one of the two parties. Democrats have high expectations about the impact of a victory for the plaintiffs in these cases. But the truth about their electoral woes has less to do with Republican skullduggery than the Voting Rights Act.
A 1986 Supreme Court ruling banning racial gerrymandering has played a crucial role in Republican victories, but this is generally ignored when liberals bewail the way district boundaries have worked against them. In a New York Times article that might have upset the paper’s liberal readership, former correspondent Clyde Haberman reminded Democrats that even if they win in court in June, the legacy of that 1986 case, Thornburg v. Gingles, will continue to haunt them.
As Haberman pointed out, the focus on partisanship has obscured the fact that the high court’s opinion that the historic underrepresentation of minorities must be compensated for when drawing districts has had a far greater impact on elections than any computer model. The odd shape of many districts has fueled Democratic resentment about their electoral hard luck, but the impetus for making such districts was a desire to increase the number of black and Hispanic members of Congress, not Republicans.
Both parties have always treated the process of drawing congressional districts — mandated every ten years by the Census results — as an opportunity to increase their odds of winning while harming their opponents’ chances. In recent decades, this has become more scientific as computer analysis has replaced the old-school vote counting utilized since the days of Elbridge Gerry (our fifth vice president but better known for the Massachusetts district map he signed into law as governor in 1812 that gave its name to the practice). However, the sophisticated nature of current computer-driven efforts isn’t what has enabled Republicans to weaponize the process in recent years. Rather it is the that the Supreme Court ruling in Thornburg v. Gingles resulted in Democrats’ most reliable voting group being drained out of competitive districts.
The plaintiffs in the one of the cases now before the Supreme Court have argued that counting “wasted votes” allows them to distinguish illegal gerrymandering from other factors that go into drawing districts. Since members of legislatures and Congress are elected either by a simple majority or a plurality (depending on the state), any margin of victory more than one creates “wasted votes.” If Democrats are winning a few districts by landslides while losing others by narrow margins, that creates a large number of “wasted votes” and, at least in their view, undermines democracy. Wisconsin Republicans, whose redistricting plan is the focus of one case, parlayed 48.5 percent of the vote into almost 60 out of 99 seats in 2012 and then 52 percent into 63 seats in 2014. Democrats think this should be illegal even if it is the sort of trick that both Republicans and Democrats have been pulling on each other every chance they’ve gotten for more than 200 years.
But while the math would indicate that the votes of Democrats are not having as much of an impact as they’d like, in many of the states that would be affected by a ruling in favor of the plaintiffs, the main reason for “wasted votes” has less to do with GOP cleverness than it does with a practice that satisfies one particular group of Democratic politicians.
By the time of the post-1990 Census round of redistricting, federal courts had moved on from efforts to ensure that minority voters weren’t being deprived of the franchise to ways of increasing their representation. The solution was court-mandated majority-minority districts that more or less guaranteed that members of groups that had faced discrimination in the past were given a leg up toward winning elections.
To accomplish this task, district architects siphoned minority voters from surrounding constituencies and funneled them into one racially homogeneous district in which they help form a majority. Blacks and Hispanics vote for Democrats by overwhelming margins, which creates massive numbers of “wasted votes” in majority-minority districts. This kind of redistricting also transformed formerly competitive districts with mixed populations into safe Republican seats with few black or Hispanic voters.
Where once gerrymandering in the South was designed to disenfranchise blacks — the kind of thing that Thornburg v. Gingles was intended to prevent — it currently empowers them while hurting the political party that wins approximately 90 percent of their support. We now have districts that are geographic monstrosities stretching across natural and political boundaries that opponents of gerrymandering despise.
The process of ensuring minority representation creates situations like that in South Carolina. In order to create the seat currently held by Representative James Clyburn (the assistant Democratic leader in the House as well as a senior member of the Congressional Black Caucus), African Americans are gerrymandered into a district that makes Gerry’s original salamander-shaped scheme look like a neat, geometric design. As applied throughout the South, this redistricting has devastated the Democrats in the region while transforming the national party into one where, ironically, black politicians have a disproportionate amount of influence.
It’s not likely that the black and Hispanic politicians who benefit from the current gerrymandering would stand for it if their districts — which are essentially one-party fiefdoms — were sacrificed to help white Democrats.
Could Clyburn still hold that seat if some of the areas largely populated by African Americans were taken out and dropped into a neighboring district so as to increase the electoral chances of a Democrat there? Maybe. But fine-tuning district-drawing that way is the moral equivalent of what Republicans are accused of doing elsewhere, and it probably wouldn’t make any of the district boundaries more orderly. Blacks would like to see their party’s share of seats increase nationally. But it’s not likely that the black and Hispanic politicians who benefit from the current gerrymandering would stand for it if their districts — which are essentially one-party fiefdoms that are a modern American version of pre-reform-era British parliamentary “rotten boroughs” — were sacrificed to help white Democrats.
The disproportionate number of “wasted” Democratic votes throughout the country is also largely the result of demography, not gerrymandering. The problem with the courts trying to second-guess the traditional role of legislatures is that like-minded voters tend to be concentrated in certain geographic areas. As any map that shows voting patterns indicates, Democrats — whether or not they are minorities — are overwhelming concentrated in urban areas while Republicans are spread out more evenly in suburban and rural regions.
Since voting patterns are not static — as the GOP may be about to learn this year — there’s no perfect way of predicting which votes will be “wasted.”
The problem here is that no process can create a result that is precisely proportionate to the number of votes cast. Even if the Supreme Court rules in favor of the plaintiffs this year, the polling for generic congressional voting will always have to show an advantage of several points for the Democrats in order for them to have a shot at winning back a House majority.
Perhaps anger at President Donald Trump or other factors will turn the tide and once again allow Democrats to dominate Congress as they did for most of the 20th century, until the Supreme Court changed everything. But as things now stand, the courts’ decision to favor the interests of black and Hispanic politicians over that of some of their white Democratic allies is a greater obstacle for Democrats than gerrymandering.