Election Law and Democratic Theory by David Schultz

Author:David Schultz
Language: eng
Format: epub
Publisher: Routledge
Published: 2014-03-14T16:00:00+00:00

Redistricting and the Federal Courts

State politics dating back to the earliest days of the republic reveal twin characteristics: first, continued efforts to gerrymander; second, responses to control those gerrymanders.21 As is often forgotten, the term “gerrymander” is an amalgam of Elbridge Gerry and salamander.22 Gerry was a second-term governor of Massachusetts in 1810 when his political party attempted (much like Tom DeLay in Texas nearly 200 years later) to redraw district lines to their advantage in order to retake control of the state legislature.23 The resulting shape of one of the districts looked like a salamander to some, leading Gilbert Stuart to label it and other similarly-shaped districts a “gerrymander.”24 Besides giving birth to a new word, this incident confirmed that efforts to control the districting process for partisan or other reasons has a long history in the states.

Alan Tarr25 and Jim Gardner document many of the ways that state constitutions historically have tried to address gerrymandering. Provisions such as requiring that districts be contiguous or compact are often constitutionally mandated,26 or that the districts have equal or near equal populations.27 Other states also stipulate that local governments cannot be divided in some situations,28 while others such as Iowa express criticism regarding the capacity of legislators to draw district lines, entrusting the duty instead to a non- or bi-partisan redistricting commission.29 Overall factors referred to as “traditional districting principles” used for apportionment in Shaw v. Reno30 along with structural requirements such as commissions were legislated as responses to gerrymandering.

But beyond more naked efforts to gerrymander districts by cutting them into irregular geographic shapes or sizes, another type of malapportionment became more common in the late nineteenth and early twentieth centuries. This was the failure of states to redraw boundaries or allocate representatives based upon the shift in population from rural to urban areas and efforts to carve up districts to disempower freed slaves and African-Americans after the Civil War. Thus, drawing lines in ways that either did not reflect population changes or which used race in discriminatory ways were two frequent tools employed to gerrymander and compromise the effectiveness of representation. One measure involved the dilution of voting power, the other ranged from diminished to perhaps even no voice in the selection of representatives.

As immigration and an exodus of people from farms swelled the number of city dwellers, once populous rural districts saw a corresponding decline. Had normal redistricting followed the decennial census, political power and representation would have flowed to the urban centers with more members of Congress (House of Representatives) and state legislators being apportioned to represent these areas. However, this was not the case. Rural legislators in control of reapportionment, refused to redraw district lines to reflect the demographic shifts in population. Often this failure to redistrict lasted decades.

In the second case, while the Fifteenth Amendment granted freed slaves (male ones, at least) the right to vote, many states, mostly in the South, undertook a variety of measures to ensure that they did not exercise this franchise.31

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