Gerrymandering

illegal or legally required?

In 2024 Republicans won just under two-thirds of the vote in Tennessee. Yet they won eight of the state’s nine congressional districts. All else being equal, were Tennessee gerrymandered less severely, Republicans today would likely have a slim one-seat majority in the US House of Representatives rather than a five-seat advantage. (The Economist: At the state level, democracy in America is fracturing)

Two thirds of the voters getting eight congressional seats out of nine would be anomalous in a proportional representation system, but US congressional elections are first past the post. If the population of Tennessee were evenly distributed, with the same percentage of Republican and Democratic voters in each congressional district, the majority party would win all of them — even if the division of votes was 51/49. With a majority of almost two to one, the only way the Democrats get any seats is if their voters happen to be concentrated in one or a few districts.

I do not know whether Tennessee districts are actually drawn to favor the Republicans but the facts offered in the article are not evidence of it. Compare the outcome of the most recent UK elections, also under first past the post. Labor got 33.7% of the vote and ended up with 63% of the seats, 411 out of 650.

If democracy in the US is fracturing it must be completely smashed in the UK.

A commenter points out that Massachusetts is about 65% Democratic by voters and all nine of its congressional representatives are Democrats.

But I cannot be too hard on the mathematical incompetence of the author of the Economist article because US courts sometimes make the same mistake — with regard to race, not politics.

Section 2(a) [Of the Voting Rights Act], as amended, prohibits a State or political subdivision from imposing any voting qualifications or prerequisites to voting, or any standards, practices, or procedures that result in the denial or abridgment of the right of any citizen to vote on account of race or color. Section 2(b), as amended, provides that § 2(a) is violated where the "totality of circumstances" reveals that "the political processes leading to nomination or election . . . are not equally open to participation by members of a [protected class] . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice," and that the extent to which members of a protected class have been elected to office is one circumstance that may be considered. The District Court applied the "totality of circumstances" test set forth in § 2(b), and held that the redistricting plan violated § 2(a) because it resulted in the dilution of black citizens' votes in all of the disputed districts. (Thornburg v. Gingles on the Voting Rights Act)

The difficulty in the claim that the failure of a group to elect a number of representatives proportional to their share of the vote is nicely illustrated by the litigation, still ongoing, over Louisiana redistricting.

In June 2022, Chief Judge Shelly Dick, an Obama appointee to a federal court in Louisiana, determined that state’s congressional maps were an illegal racial gerrymander. Under the invalid maps, Black voters made up a majority in only one of the state’s six congressional districts, despite the fact that Black people comprise about a third of Louisiana’s population. (Vox)

As best I can tell, no evidence was offered by the court of actual gerrymandering beyond the fact that the percentage of districts with a black majority was less than the percentage of blacks in the population.

After some litigation, the Louisiana legislature drew a new map with two black majority districts — and a new set of plaintiffs sued on the grounds that the new map was a gerrymander drawn to create a black majority district, in violation of the Equal Protection guarantee of the Fourteenth Amendment. They sued in a different federal appeals court and won, a 2 to 1 majority verdict.

One court was insisting that Louisiana had to create a second black majority district to comply with the Civil Rights Act, the other that it could not create such a district, more precisely that it could not create it in the form the legislature had proposed, in order to comply with the Constitution. The case was appealed to the Supreme Court, which let the legislature’s map stand for the 2024 election, about to happen, but has not yet ruled beyond that.

Louisiana, in other words, is now subject to two competing court orders. The first, from Judge Dick, forbids it from using the old maps. The second, from the two Trump judges in the Western District, forbids the state from using the new maps it enacted to comply with Dick’s order. (Vox)

The Vox article gives a detailed if somewhat one sided account of the tangle, concluding that the first court was right and the second wrong, but it omits one essential fact — the map that the second court rejected:

District 6, pink on the map, is the second black majority district, a long thin diagonal, stretching about two-thirds of the width and height of the state. It is an obvious gerrymander, not unlike Elbridge Gerry’s original gerrymander:

If that is the only way of getting a second black majority district, then obeying Judge Dick’s ruling requires a racial gerrymander. But …

While plaintiffs in the Robinson case supported the Womack map, they preferred several others put forward by Black lawmakers that drew a substantially more compact majority Black district. This version was opposed by Republicans because it would likely have led to Letlow losing her 5th District seat, while U.S. Rep. Garret Graves, R-Baton Rouge, would likely be re-elected in the 6th District.

While no lawmaker outwardly said so, Graves was chosen as a sacrificial lamb, perhaps in part because he was widely viewed as insufficiently supportive of Scalise’s failed bid for U.S. House speaker. Graves also endorsed Stephen Waguespack, one of Landry’s opponents in the 2023 gubernatorial election, potentially putting him crosswise with a powerful governor whose interests drove the special session. (Federal court tosses Landry-backed Louisiana congressional map, Louisiana Illuminator)

Assuming that account is correct, it should be possible for Louisiana to obey both court rulings. The first requires a second black majority district, the second only forbids one way of getting it. There are probably others.

My own view is that, while Judge Dick may have correctly applied existing law, that law is based on a logical error, possibly a deliberate one. The fact that the percentage of majority black districts in a state is lower than the percentage of blacks in the state population is not evidence of racial gerrymandering, any more than the fact that the percentage of Democratic representatives in a state is lower than the percentage of Democratic voters is evidence of political gerrymandering. US congressional representatives are not elected under a proportional representation system.

So far as the Economist article is concerned, its claim is supported by neither logic nor current law. No court has interpreted the Voters Rights Act to justify forced redistricting to make the number of congressional representatives of each party proportional to the number of votes cast for that party.

If one ever does, the Libertarian Party, with .42% of the vote in 2024, should sue for its two congressmen.

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