"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;" - Constitution of the United States
When you and I read this fragment from the Constitution, it may not occur to us that it prohibits gerrymandering, but it doesn't authorize gerrymandering either. A small group of creative lawyers is challenging gerrymandering in Pennsylvania, based on the theory that this "Elections Clause" is meant to authorize only even-handed procedural provisions for facilitating elections. There are other, parallel challenges to gerrymandering proceeding through courts in several states, including Pennsylvania, but because of the way the political cards fall, this odd theory has a chance the others don't. In any case, after more than 200 years of historical gerrymandering, the subject has opened the question for discussion, both political and legal. We may hope that this challenge becomes the wedge that forces this issue, ultimately reversing one of the oldest ways in which American democracy has been subverted.
Gerrymandering's long history
Gerrymandering is the manipulation of political boundaries for the purpose of affecting electoral outcomes. It's a well-established American tradition:
Before the term "gerrymander" was coined and even prior to the U.S. Constitution taking effect, redistricting was already being employed for political gain. Late in 1788, just after Virginia voted to ratify the Constitution and join the union, former Governor Patrick Henry persuaded the state legislature to remake the 5th Congressional District, forcing Henry's political enemy James Madison to run against the formidable James Monroe. The ploy failed and Madison won anyway, eventually becoming the nation's fourth president. Monroe's career wasn't over, though: He succeeded Madison as president.
The origin of the word "gerrymander" was a combination of "salamander" and the last name of Elbridge Gerry, who as governor of Massachusetts in 1812 signed into law a redistricting plan designed to benefit his political party. The term was put into print for the first time by the Federalist-leaning Boston Gazette on March 26, 1812. Printed alongside this cartoon, it described a newly formed district in Essex County, said to resemble the shape of a salamander. [ Emily Barasch, writing for The Atlantic ]
Beginning after the 2000 census, the Republican-dominated state legislature took gerrymandering to a new level in Pennsylvania. With databases that know the past voter performance of every precinct in the state, and a computer program that can draw lines in microscopic detail, they had the tools they needed to optimize the system to get the most House seats with the least number of voters. Pennsylvania is the posterchild for this practice. Most of the state's voters are in the Philadelphia,Pittsburgh, and smaller city metropolitan areas, where they trend Democratic, while most of the state's land area is in the farms and hills in between, which trends Republican.
Historically, statewide elections tend to turn out D more often than R. But by computerized gerrymandering, the Republican legislature (also gerrymandered) has managed to divide the state into 13 solidly Republican districts and 5 Democratic districts (72% of the representation, with less than 50% of the votes).
In the Philadelphia suburbs, all of the available Republicans from three separate regions are rounded up to make a single district, connected by land bridges. Without this extreme contortion, the whole region would be Democratic territory,
One of the completely predictable outcomes of this practice is that it practically guarantees re-election prospects for Congressional representatives. Every seat is engineered to be secure against challenge. Designated Democratic CDs in Pennsylvania have up to 90% registered Democrats. Republican CDs have 55-60% Republican voters, which is just enough to make the incumbent un-challengeable, while spreading the Republican voters out for maximum impact.
Thus, even though the map favors Republicans to a maximum extent, Democratic incumbents are ultra-secure in their seats. Rep Bob Brady is a long-time political powerhouse in the PA Democratic party, and he approved the 2011 Republican redistricting on condition that his own CD be mapped with a solid white majority, insulating him against challenge in the primary by a candidate of color.
Challenges in State courts, based on 14th Amendment
Last month, the Public Interest Law Center and League of Women Voters, sued in PA state court, challenging gerrymandering based on a provision in the state Constitution that says counties and municipalities should not be broken up unless absolutely necessary. For example, Montgomery County could have one CD all its own, and the rest of the county could be combined with Philadelphia or Bucks to form a second; but instead, Montgomery is carved out and parceled among 5 CDs, largely along partisan lines. The law seems clear and the logic appears straightforward and explicit. It requires no inference or interpretation. Furthermore, the PA State Supreme Court now has a majority of Democrats. The fly in the ointment is that a similar court case is ongoing in Wisconsin, and it is currently on appeal, waiting for decision in the US Supreme Court. Defendants in the PA suit argued that trial should be delayed until SCOTUS makes a decision, to avoid having to go back and try the case over again with new rules that SCOTUS might lay out. The real motive is delay. SCOTUS often announces its decisions for the year in June, and if the PA suit can be held off until then, it will be too late to change the map for the 2018 primary and general elections. Last month, the PA Supreme Court said the trial should go forward expeditiously, so that an order for a new map could be issued as early as January. But if the order is issued, it may still be appealed to the Federal Supreme Court, which could order the new map be put on hold during the appeal, which would again be too late for the 2018 election. [I'm not sure that the defendants have an automatic right of appeal to the U.S. Supreme Court in the state Court case, since it doesn't implicate any federal rights.]
Challenge in Federal court based on Times, Places, and Manner
A second lawsuit was brought in parallel in Federal court, and was tried last week. It is the brainchild of Tom Geoghegan, a labor lawyer from Chicago. The idea is that the Constitution intended to give power to states about how to administer elections procedurally, but the idea that the states would use this power to rig the elections and determine the outcome demographically was never envisioned and never intended in the wording of the Constitution. Geoghegan teamed up with Alice Ballard, a Philadelphia employment lawyer, to bring his case in Pennsylvania, because of the combination of especially egregious gerrymandering and favorable political climate in the Executive branch. According Geoghegan and Ballard's complaint,
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