If Congress’s approval rating was so low (10%) going into the 2012 election, why did over 90% of the incumbents in the House races win re-election? It starts with the fact that over 80% of the seats are considered safe—districts so disproportionately favoring one party as to virtually insure that the nominee from that party, incumbent or not, will be elected. That the Republican advantage of 33 safe seats proved to be exactly their margin of victory is no coincidence. While Democratic House candidates across the nation outpolled the Republicans by 49% to 48%, the Republicans nonetheless retain a 54% to 46% advantage in the number of representatives.
Why, you may ask, do the Republicans have so many more safe seats? Congressional districts are determined at the state level, and to the extent that a party can wield the power to draw the districts, it can parse them in a favorable manner. Take Pennsylvania, for example. Obama took the state, despite 50.9% of the electorate voting for the Republican House candidates compared to the 48.1% voting for Democrats. Close? Not really. That’s all it took for the Republicans to capture 14 of the 18 House seats (78%). The same was true in neighboring Ohio, the Republican House candidates gaining 51% of the vote but capturing 75% of the congressional seats. In both states, district boundaries were drawn by Republican legislatures with no effective input from the Democrats. On the other hand, two states over in Illinois, the Democratically-controlled legislature redrew the boundary lines to produce a +4 gain for them and a –5 for the Republicans, the state having lost one of its 19 seats due to the 2010 census. In Illinois, though, the Democratic total vote was 57% statewide, not so drastically different from the 67% of the available seats they won.
Some states have established commissions to draw districts in an effort to limit partisan control. In Arizona, for example, the nine districts were drawn to provide Republicans with four and Democrats with two safe districts. The remaining three were made competitive, and indeed they were. Although the Democrats did manage to take all three in 2012, the difference was only 3% in two of them and less than 0.5% in the other. The Republicans candidates received about 54% of the vote across all nine districts, but won only four of the nine seats (44%). In 2014 Republicans managed to pull out the close contest in District Two, now claiming five (55%) of Arizona's nine seats.
Ohio, Pennsylvania, and Illinois demonstrate the effectiveness of political gerrymandering, the drawing of districts designed to maximize the electoral advantage of one’s own party while marginalizing that of one’s perceived foes. As old as the republic itself, gerrymandering immortalizes Massachusetts Governor Elbridge Gerry, who signed off on the 1812 partisan redistricting by fellow Republicans (Democrats of the day) in which one of the districts bore some resemblance to a salamander.
Enter the Supreme Court.
The historical problem with gerrymandering is that the courts long considered it a political question that should not be addressed by the judicial branch. The Supreme Court ultimately found the 14th Amendment equal protection clause to require a one-person one-vote standard for districts and to enforce federal law regarding efforts to marginalize the voting power of various protected classes. Political gerrymandering, however, refers more directly to partisan efforts by one party against other electoral competitors.
That the Supreme Court is divided on the issue of political gerrymandering is no better illustrated than in this summary of the distribution of opinions written in the League of United Latin American Citizens v. Perry, a 2006 Texas case. It reads:
Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II–A and III, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, an opinion with respect to Parts I and IV, in which Roberts, C. J., and Alito, J., joined, an opinion with respect to Parts II–B and II–C, and an opinion with respect to Part II–D, in which Souter and Ginsburg, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Roberts, C. J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Alito, J., joined. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, J., joined, and in which Roberts, C. J., and Alito, J., joined as to Part III.
It should come as no surprise that the Court breaks along partisan lines. The conservative bloc attempts at every opportunity to declare political gerrymandering as a nonjusticiable matter, overruling a previous case that established otherwise (Davis v. Bandemer, 1986). Their initial effort came in Vieth v. Jubilier (2004) in which Pennsylvania Democrats claimed Republican-controlled redistricting marginalized Democratic voters and ensured a disproportionate Republican congressional delegation, not unlike that found in the 2012 election. Scalia, writing for only four of the justices, argued that the 18 years since Bandemer had failed to produce any “judicially discernible and manageable standards” for addressing political gerrymandering, justifying the conclusion that such claims should not be considered by the federal courts.
Justice Kennedy, as the fifth justice who agreed with the disposition of the case at hand, nonetheless rejected Scalia’s argument, claiming that just because a standard had not emerged in this case did not mean none might emerge in future cases. So, while Scalia attempts to claim political gerrymandering is nonjusticiable, only four justices say so. Five claim such gerrymandering may well be justiciable. In dissent, Justice Breyer was more explicit,
“. . . political gerrymandering that so entrenches a minority party in power violates basic democratic norms and lacks countervailing justification. For this reason, whether political gerrymandering does, or does not, violate the Constitution in other instances, gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution’s Equal Protection Clause [Vieth at 361-2].”
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