By: William R. Adams

George Washington Law School, Class of 2020

Congress’ approval rating is at 20%,[1] but the re-election rate in 2016 was 95%.[2] How do politicians with such low approval ratings continue to get re-elected? One word: Gerrymandering. For centuries, voters have not been choosing their politicians, politicians have been choosing their voters.

Gerrymandering occurs for many reasons other than just protecting incumbents, but unfortunately for lawmakers drawing the districts and for voters challenging their constitutionality, the Supreme Court has been anything but clear in stating what is and is not a constitutional gerrymander.

In the last half-century, the Court has held: a bipartisan gerrymander to protect incumbents is constitutional (and occurs regularly, as proven by the statistics cited above), Gaffney v. Cummings, 412 U.S. 735 (1973); claims of partisan gerrymandering are justiciable, but no standard of review was agreed upon, Davis v. Bandemer, 478 U.S. 109 (1986); in a plurality decision, the Court later said that partisan gerrymandering claims are non-justiciable and no standard exists to resolve partisan gerrymandering questions, Vieth v. Jubelirer, 541 U.S. 267 (2004); on racial gerrymandering, the Court has held that redistricting based predominately on race must pass the highest level of scrutiny, strict scrutiny, Miller v. Johnson, 515 U.S. 900 (1995); and finally later ruled that racially focused gerrymandering is allowed without having to pass strict scrutiny, as long as partisan gerrymandering is the main goal, Hunt v. Cromartie, 526 U.S. 541 (1999).

Back and forth the Court has gone, ruling one way and then amending, or even changing, their ruling years later, which brings us to today. In Cooper v. Harris, --- U.S. --- (2017), the Court recently affirmed in a 5-3 decision a district court’s ruling that two highly controversial congressional districts in North Carolina were unconstitutionally drawn based on race, not partisanship, and that the state did not show it drew the districts to comply with the Voting Rights Act (VRA).

This is a win for voting-rights activists who have been challenging the constitutionality of these two districts for twenty-five years. The Court’s ruling also opens the door for challenges from other districts that appear to have been unconstitutionally drawn based predominately on race. However, the decisive fifth vote in Cooper was Justice Thomas, who wrote a concurring opinion explaining, “§ 2 of the Voting Rights Act does not apply to redistricting and therefore cannot justify a racial gerrymander.” If, in the future, the state uses a defense other than § 2 of the VRA, they may be able to convince Justice Thomas that a racial gerrymander is necessary and passes strict scrutiny. Assuming Justice Gorsuch’s views on the issue align with the more conservative justices, that could result in future 5-4 votes in favor of the states. Yet, if the past is any indication, the Court could very well change its mind again down the road.

Where does that leave lawmakers and voters? Surely challenges will continue to arise, so why doesn’t the country work towards a permanent solution to the gerrymandering problem?

Last year two Professors at the University of Illinois Urbana-Champaign, Wendy K. Tam Cho and Yan Liu, proposed that we move the process of redistricting into the twenty-first century and consult with computers. They used the Blue Waters supercomputer to generate 800 million voter district maps. These maps showed the averages and extremes of how many districts could be controlled by each political party, race, religion, or other group. By using their results, lawmakers and courts could compare the current districts to the millions of maps generated by the supercomputer. If the current map is within or close to the average, it should be considered constitutional. If it is an outlier too heavily favoring one party or race, the court should strike it down as unconstitutional.

The biggest counter-argument to using technology to draw districts is that computers do not vote, people do. This proposal, however, maintains the human element of drawing districts and ruling on their constitutionality. Consulting with computer generated maps simply provides the lawmakers and the courts with a reliable baseline to start their respective processes. Ideally this would simplify the re-districting process and move us towards a country not where politicians choose their voters, but where voters choose their politicians.



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