Do we as American voters really have a say in the outcome of our elections?
We go to the election booths under the illusion that we make a difference to the outcome of an election, when in fact; most elections are preordained thanks to the gerrymandering process. “Some political analysts believe that rarely, if ever, do election results say much about what the people want except at the most obvious level” (Weissberg 54).
The well- to-do elite who created the Constitution did not trust the people to select the president directly. As John Jay, the first Chief Justice of the Supreme Court stated, “the people who own the country ought to govern it (Friendberg 262).”
In recent years, much attention has been given to the redistricting process. Currently, there are well over 150 lawsuits in at least 40 states challenging redistricting plans that have been gerrymandered. It is important to understand how the Redistricting and Reapportionment process works in order to grasp the idea of the gerrymander. There are significant laws in place that mandate this process. The United States Constitution and the Voting Rights Act of 1965 are the principle federal laws that come into play in redistricting litigation (Clarke).
The Voting Rights Act of 1965 became law in 1965 but was only limited to a five year period. The Act established criminal penalties for interference with a person’s right to vote and required the Attorney General to act against state or local officials who obstructed the voting rights of citizens. In 1970, the law was extended for five more years. The residency requirement for presidential elections were restricted to thirty days and the voting age was lowered to eighteen instead of twenty-one. In 1975, the law was extended for seven years and the ban on literacy tests were made permanent. In 1982, the law was strengthened and renewed for twenty-five years. The law now requires the Census Bureau to collect voting data in certain areas according to race, color, and national origin. (Weissberg 62).
Article I Section II of the United States Constitution mandates the apportionment of the seats in the House of Representatives. The 14th Amendment to the U.S. Constitution precludes individuals or groups from unfair treatment by the law. Article II of the U.S. Constitution outlines the executive power of the presidency. Finally, the Maryland Constitution Article III mandates the redistricting of legislative districts for electoral purposes. It is important to note that there are different constitutional laws and amendments for each state mandating this process.
Beginning in 1790, every 10 years the U.S. Census Bureau conducts an official count of the population. Our U.S. Constitution Article I Section II mandates this process. The census has many key roles. The federal government uses the census statistics to allocate federal funding for community development, education, housing, and health care services. Our state and local governments use the census statistics for planning and allocating funds for new school construction, libraries, public buildings, highway safety, public transportation systems, and location of police and fire departments. Community organizations use the census statistics to develop social service programs, community action projects, senior lunch programs, and childcare centers. The census statistics are useful for businesses in locating potential job opportunities (Census Bureau).
Key to the redistricting process is the U.S. Congress use of the census statistics, which determine how many seats are allotted to each state. After the census, the 435 seats in the House of Representatives are reapportioned among the 50 states in accordance with those population numbers. The number of representatives a state has is determined by the population. States are guaranteed at least one representative to the house, which leaves 385 seats to be apportioned among the 50 states. The total number of each state’s U.S. House seats combined with its two U.S. Senate seats constitutes that states number of electoral votes in presidential elections.
In Maryland, every second year after the census, our Governor and his Redistricting Advisory Committee devise a redistricting plan. This redistricting process involves the revision of the legislative districts for electoral purposes. The boundary lines are changed in order to accommodate the shifts in population. The Governors’ plan is introduced to the General Assembly of Maryland as a joint resolution. If all approve the redistricting plans, the plan becomes law. Each legislative district will be entitled to one senator and three delegates (MD General Assembly).
The Gerrymander Process
The Term “gerrymander” dates back to 1811 Massachusetts Governor Eldridge Gerry (see figure 1). He gained notoriety for drawing districts that benefited his supporters. In 1776, Gerry was a signer of the Declaration of Independence. In 1813-1814, he served as vice president to James Madison. (Historycentral).
Governor Gerry drew boundary lines in such a crude way that an artist saw a fitting crude image (see figure 2). According to one version of the gerrymander story, the shape of the district attracted the eye of a painter named Gilbert Stuart, who noticed it on a map in a newspaper editor’s office. Stuart decorated the outline of the district with a head, wings, claws, and then said to the editor, “That will do for a salamander! and the editor replied, “Gerrymander!” This is the actual photograph taken from the 1812 Gazette (Bartleby).
It is the process of drawing district lines to first pack and then fracture minority districts that create the dragon-like districts called gerrymander. The incumbent party drawing the redistricting plan tries to determine where the political minorities are and draw their boundary lines accordingly. First by packing as many of them into as few districts as possible and then where they can’t be packed, fracturing them into as many districts as possible.
Packing involves drawing district boundary lines so that the members of the minority are concentrated or packed into as few districts as possible. Thus, they become a supermajority in the packed districts. These districts would then contain over fifty percent or more minorities. The voters in these few districts would be able to elect representative from these districts. However, they are not available to help elect representatives in other districts. Therefore, their additional votes are wasted.
Fracturing is drawing district lines so that the minority population is broken up. Members of the minority are spread among as many districts as possible, keeping them a minority in every district. Thus, they are unable to concentrate enough strength in numbers to elect representatives in some districts. The overall purpose of packing and fracturing is to weaken the electoral influence of some districts. When a state or local governing body draws up electoral districts that allegedly disadvantage minority voters, the affected voters can rightfully sue under section II of the Voting Rights Act claiming Voter Dilution.
The Computer Gerrymander
Computers have revolutionized this process. “Many scholars and journalist are concerned that the computing software today enables the creation of finely crafted redistricting plans that promote partisan and career goals (Altman).”
In 1960, computers were first used for the redistricting process. They were primarily used as tabulation machines. The map drawing process required the effort of teams in order to complete. In 1990, the first Geographic Information System(GIS) provided on-screen line drawing capabilities. Although this greatly reduced the need for data entry, it was considerably more expensive. These applications required high-end workstations, on-going programming assistance, and technical support. States reported spending in average of $50,000 for redistricting computer systems, software, hardware, training, and support teams (Altman).
Computer technology as it pertains to the redistricting process has greatly evolved over the past decade. The majority of state legislatures allow public access to their redistricting information via government website. A typical redistricting website provides information about the redistricting process, legal information, data, hearing notices, public meetings, census statistics, downloads, and maps.
Redistricting is a complex, meticulous, and prolonged task. This process must take place without error and according to the law. Specialized software aide in the task of achieving strict population balance, voter registration statistics, election returns, and prisoner population. Political parties use the specialized features offered by redistricting software to develop their own in-house software thus, giving themselves an unfair advantage in elections. Political officials’ nationwide use customized redistricting software for purposes of career advancement.
For example, the Maptitude for Precinct and Election Management automated software encompasses specific features that can easily allow a political party to gain unfair advantage over another. Some of these features include specified formulas to allow sophisticated gerrymanders. This software package also contains specific tools that allow modification of district boundaries. You have the capability of creating unique ballot styles, enhancing voter files, and incorporating customized data of your political party specification. Geographic maps of unique ballot styles are created for congressional, state legislative, county commission, or school board districts. Using this method enables a party to explore the different effects redistricting will have on a particular district. With these features, you can automatically create or assign a list of registered voters, their party affiliation, and their ethnicity to a district. As you select geographic areas (census blocks), the software will compute the number of registered voters added to a district along with other specified data. You can lock districts, and keep communities of interest together, export and import plans of other file formats for comparison, design, and print reports that list the number of voters per district, and any other attributes you wish. With a multitude of customized features, this sophisticated software stays in constant command. The typical cost of this software ranges from $7,500.00 to $10,000.00 (Caliper).
According to our Federal Judicial Center, political gerrymandering is not subject to strict scrutiny by our Supreme Court System. The main argument that arises in redistricting litigation involves population disparity and racial gerrymandering. Three types of gerrymander cases often appear before the Supreme Court. They involve issues of federalism, separation of powers, and party politics (Clarke).
In the case Miller v. Johnson, the Supreme Court stated, “the federal courts review of districting legislation represents a serious intrusion on the most vital of local functions and that reapportionment is primarily the duty and responsibility of the state and the states must have discretion to exercise the political judgment necessary to balance competing interests.” Furthermore, “when a federal court declares an existing apportionment scheme unconstitutional, it is therefore appropriate, whenever practicable to afford a reasonable opportunity for the state legislature to meet constitutional requirements. It becomes the obligation of the federal court to devise a new plan only when the legislature does not respond to the court’s ruling or the imminence of a state election makes it impractical (Clarke).”
In the cases Shaw v. Hunt and Shaw v. Reno, the court made it clear that equal protection principles govern a state drawing of congressional districts and the Equal Protection Clause is violated when race is proven the predominant motive of the legislature in drawing district lines. In limited situations, the Court has taken the stand that political gerrymandering is justiciable under the Equal Protection Clause. For example, “the Bandemer case involved an equal protection challenge to the Indiana State legislature’s 1980 districting plan. The Supreme Court agreed with the District Court that in order to succeed, the Bandemer plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group (Clarke).”
The case Vieth v. Jubelirer, it was noted that the “availability of enhanced computer technology has allowed parties to redraw boundaries in ways that target individual neighborhoods and homes, carving out safe but slim victory margins in the maximum number of districts, with little risk of cutting their margins to thin (Altman).”
With so much corruption in our present political system, some critics have suggested a complete alteration of our representative system. Numerous critics of our one person, one vote system of representation suggest the alternative proportional system. This is an electoral system commonly used in European countries.
In this system, seats in the legislature are allocated to parties in proportion to the votes cast for the party. Each party offers a list of candidates. Hypothetically, if one party receives 25% of the vote, that party, starting with the first names on the list and working down, fills 25% of the legislative seats. The major criticism of the proportional system is that it hinders the formation of a clear governing majority (Weissberg).
The proportional system can take on many forms of representation. However, the main objective of this system is to assure that all citizens have an effective vote. The ability to produce fair representation for the majority and minority of our citizens has made this election system appealing to our European democracies. To date, nearly 100 jurisdictions have adopted proportional systems to settle voting rights challenges. Federal judges have used the proportional method as a direct means of remedying voting rights cases (Amy).
In spite of the well-intentioned efforts of our Founding Fathers, our political system does not give fair representation to all citizens. We can only continue to educate ourselves about our political system in the hopes that one day we can make a difference.
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Altman, Micah, MacDonald, Karin, McDonald, Michael. “From Crayons to Computers: Evolution of Computer Use in Redistricting.” Social Science Computer Review. Micah Altman. 2005. 1-30. http://data.fas.harvard.edu/micah_altman/papers/crayons.pdf. (6 Oct 2005.)
Bartleby.com. “Gerrymander.” 2005. www.bartleby.com. (7 Dec 2005).
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Caliper Corporation. Maptitude for Precinct & Election Management. 2005 www.caliper.com. (11 Dec 2005).
Clarke, Bruce M., and Reagan, Timothy Robert. “Redistricting Litigation.” Federal Judicial Center, 2002. www.fjc.gov/public/pdf.nsf/lookup/redistri.pdf/$file/redistri.pdf. (6 Oct 05).
Friedenberg, Daniel M. Sold to the Highest Bidder. NY: Prometheos Books, 2002.
History Central. “Gerry Eldridge.” 2005. www.historycentral.com. (9 Dec 2005).
Maryland General Assembly. “Redistricting and Reapportionment.” 2005.
http://redistricting.state.md.us/maryland. (6 Oct 2005).
National Conference of State Legislatures. “Shifting Sands of Redistricting Law.” 2005
www.ncsl.gov. (7 Dec 2005).
Poverty & Race. “Proportional Representation: A Tool for Empowering Minorities and the Poor.” Poverty & Race. Sep/Oct 1993. www.prrac.org. (13 Dec 2005).
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Constitution of Maryland. “Article III.” Legislative Department www.mdarchives.state.md.us.
United States Constitution. www.house.gov/constitution.html.
Amendments to the Constitution. www.house.gov/amendments.html