A Cure For Gerrymandering?

I recently received a provocative email from James Allison, a retired Professor of Psychology, suggesting an approach to the elimination of gerrymandering that I had never contemplated.

After noting the Supreme Court’s unconscionable refusal to find extreme gerrymandering a constitutional violation (ruling 5/4 that partisan gerrymandering was a “political question” best left to the political process!), Allison quoted a recent proposal for just such a political solution.

In a recent op-ed in the Washington Post, Lee Hamilton, William S. Cohen and Alton Frye served notice: Although partisan gerrymanders may lie beyond the reformist reach of federal courts, and beyond the conscience of gerrymandering statehouse legislators, they are well within the grasp of Congress (July 17, 2020). Specifically, the House can “refuse to seat a state delegation achieved through excessive gerrymandering.” They propose to gauge the amount of gerrymandering in terms of the difference between the number of districts won by each party and its share of the statewide popular vote. They take the example of North Carolina’s 2018 elections, where Republicans won 50% of the popular vote for House members, but 77% of the state’s 13 seats. And the gerrymandering authors of those maps came right out and confessed proudly that their motive was to guarantee their party’s supermajority control.

The constitutional basis for direct Congressional oversight is in Article 1, Section 5, which says that “each House shall be the judge of the Elections, Returns and Qualifications of its own Members.” It has been used, albeit rarely, to exclude representatives chosen under questionable election procedures. And it was used after the Civil War against state intimidation of black voters and unconstitutional election laws.

There are a couple of obvious problems with this solution. One of those– political abuse of the power to deny delegations a seat–can probably be prevented by carefully crafted legislation. The other, as Allison points out, is how a determination is made that extreme gerrymandering has occurred.

For a number of years, the lack of a reliable “standard”–that is, a tested and dependable method for determining that disproportionate results were attributable to partisan redistricting and not simply to the voting sentiments of constituents–was the Supreme Court’s excuse for not addressing the issue. In the most recent case, however, that excuse no longer applied; in Rucho v. Common Cause, the Court was supplied with statistical tests developed by scholars for just that purpose. One test–called the “efficiency gap” was based on a calculation of “wasted votes.”  Wasted’ votes are those cast for a losing candidate or for a winning candidate beyond what he or she needed — divided by the total number of votes cast.

I personally prefer the tests developed by Sam Wang at Princeton. Be that as it may, there are now indisputably accurate statistical tests available to determine whether the number of votes cast translate fairly into the number of seats won.

Allison cites Robert X. Browning and Gary King, “Seats, Votes and Gerrymandering: Estimating Representation and Bias in State Legislative Redistricting.” Law and Policy, Vol. 9, No. 3, July, 1987 for the proposition that this approach to determining the fairness of electoral results isn’t new. I have personally done a fair amount of research into partisan redistricting, and written a couple of academic articles on the subject, and I can confirm the accuracy of this assertion.

The virtue of this approach, as Allison notes, is that– if adopted by Congress– its potential threat alone could create a powerful incentive toward nationwide redistricting reform.

If America truly cares about fair and equal representation–an open question in a country that makes it hard rather than easy to cast a ballot–this is an approach worth considering. It should be one more agenda item to be taken up by a (fingers crossed!) Democratic House and Senate.


  1. GREAT News Prof K. Thank you. Yet one MORE reason to get behind the Democrats at every level this year. Lets HOPE this can be changed. Thanks again.

  2. “…the Supreme Court’s unconscionable refusal to find extreme gerrymandering a constitutional violation (ruling 5/4 that partisan gerrymandering was a “political question” best left to the political process!)”

    Aren’t all cases brought before the Supreme Court, at their foundation, a “political question” based in the Constitution through one of the three Legislative branches of our government? Even those cases based on state laws ultimately go to the question, are they in violation of their State Constitution and the Constitution of the United States of America? Gerrymandering in Indiana is a blatant political question regarding the right of one party to include or exclude areas of counties for political power, NOT to work for the constituents who elect them. Indiana’s voucher laws (based on a blatant lie to pass) violates both the Constitution of the State of Indiana and the Constitution of the United States of America.

    All roads lead to a “political question” and those pesky loopholes best used by the Republican party, such as Citizens United, to enhance their power. A “political question” which has been controlling this country beginning during President Obama’s administration…how is Mitch McConnell so easily and openly ignoring his duties and responsibilities by ignoring his Oath of Office to uphold the Constitution?

    “If America truly cares about fair and equal representation–an open question in a country that makes it hard rather than easy to cast a ballot–this is an approach worth considering. It should be one more agenda item to be taken up by a (fingers crossed!) Democratic House and Senate.”

  3. It looks like a great way to ignite the next civil war, which would not last a day provided that the US Armed Forces remained loyal to the Commander-In-Chief. However, if said CIC were to be sympathetic to the rebel governors he could order the military bases and personnel located in those state to defend them. At that point we could only pray for a military junta in Washington and martial law nationwide, with an eventual return to a democratically-elected government. Or not.

    The most ridiculous aspect of this scenario is that after the last 3.5 years, it’s actually not all that ridiculous anymore.

  4. Sheila writes, “If America truly cares about fair and equal representation…”.

    American voters and citizens genuinely care about this, but the political class, owned by the Oligarchy, does not. Both abuse their powers when able but only to benefit themselves and the Oligarchs.

    That essentially is the problem.

    It’s the basal rot of our society. The stench can be traced right back to this fundamental truth.

    The Democratic Party only pretends to give a shit about the people, but truth be known, their allegiance is to party first, and those who control the party. At the national level, this would be Wall Street forces.

    My question for Sheila would be, “Do any of these academic papers or studies, determine the ‘lost vote’ due to gerrymandering?”

    In Indiana, especially in my congressional districts, many people don’t bother registering to vote because they “know it doesn’t matter.”

    There are also registered voters who take a pass each May and November because of gerrymandering. I’m sure many in North Carolina feel the same way and simply stop visiting the ballot box.

    How do we measure the so-called opportunity cost to our democracy from votes not even cast or citizens passing on registering to vote because the political system itself is rotten to the core?

    This is all about the distribution of power, and neither party wants the power to be in the hands of the people, or we’d already have a system that represents this belief. We don’t!

    Political party power is not the same as people’s power. Until this corrupted practice is reverse, we’ll continue seeing these lost causes being debated in front of guess what?…a corrupted SCOTUS who has been set up to represent, guess who??

  5. As JoAnn so accurately states, everything that comes before the court has political implications. Why else are the Republicans so energetic about installing their right-wing extremist judges to the federal bench? It IS all about retaining power for Republicans; I have stopped calling them conservatives years ago, because all the Republican party has become is a vehicle for corporate/banking America to grab as much power and money to ensure their fascist status.

    It should be noted that every Republican president who has nominated a SCOTUS Justice has picked someone ever-so-friendly to the corporate/banking America and rather hostile to the vast majority of the working people who keep making the moguls richer. Beginning with the horror show of Antonin Scalia and now through the “confirmation” of an even more egregious ideologue, Kavanaugh, the court continues to vomit on its robes when it comes to real jurisprudence and the intent and letter of the Constitution. Throw in the fundamentally corrupt Thomas and the man with only a right-thinking brain, Alito, and you have exactly what the sponsors of the Republican party have wanted since the day FDR was inaugurated: a purposefully biased judiciary that finds ONLY for the rich and powerful. Every since Congress rolled over after Citizens United, it’s been a steady attack on the UN-powerful majority.

    These events, and the ones that will follow until the court is once again balanced will continue. Wisconsin is a perfect example of the the power play Republicans pulled with gerrymandering. It would be laughably corrupt if it weren’t so obviously un-Constitutional.

  6. I wonder what the results would be if every eligible voter did vote? We hear so often about people who don’t vote because their votes don’t matter. Why not test that proposition and ask everybody to vote. What might we see if only 50.1 percent of a red district were actually blue? I can guarantee you don’t count if you don’t vote.

  7. This is a terrible idea. Imagine a Newt Gingrich, Paul Ryan or Mitch McConnell wielding this power, an AOC might be refused a seat for some bogus reason.

  8. One of the benefits of a House-managed review of partisan gerrymandering is simply the threat of such a review. Redistricting conducted solely by one political party has no “political” check or brake. The fear that an entire state’s delegation would not be seated or be unseated could be helpful to more competitive elections. At some point, the Democratic Party must confront the damage created by Republican packing in “majority minority” districts versus the benefit. Perhaps the best or most hurtful practice of “wasted votes.”

  9. After 2020, a number of state legislative chambers are going to go to Democratic control, along with the power to redistrict. (The Ds have already won back a number of governorships in the Trump era.) Let’s see if gerrymandering reform remains at the top of the D’s agenda. My guess is it’s going to start fading as Democrats take over more and more state legislative bodies. Then suddenly Republicans will suddenly discover redistricting reform. I’ve seen this movie before.

    Let’s not forget it wasn’t too long ago the Democrats controlled the Indiana House for a number of years because of a skillful gerrymander they pulled off following the 1990 census.

    Gerrymander has its limits. The current Indianapolis city-county council map that has produced 20 out of 25 council seats held by Democrats was drawn by Republican political activist David Brooks. Democrats screamed about Brooks’ gerrymander, but as I noted at the time, Brooks’ had to cut the GOP margins so narrowly to get a then majority that it would come back to haunt the Republicans, given the voting trends, in the elections that followed. Indeed, that’s happened. Today, Republicans do not have a single council seat north of Washington Street.

    I’m not sure how to get rid of partisan gerrymandering. Every solution seems to involve politics, in one form or another. (Not at all convinced refusing to seat legislators elected via excessive gerrymandering would work and I would think might backfire big time.) Probably the best solution is some of the statistical formulas that measure the fairness of gerrymandering and for the court to adopt that as the standard, sort of like they did in Baker v. Carr.) I think even originalists could say equal protection or other constitutional provisions support such an approach.

  10. Could this be the same James Allison who taught psychology at IU Bloomington in 1967-68? If so, he was one of the best professors ever.

  11. To follow up, I realize the SCT rejected adopting these statistical approach because it was a “political question.” I have never bought into the “political question” doctrine.

  12. My father often posed the question as to why, rather than jury trials, evidence from prosecution and defense and all evidence be entered into a computer program and the computer decides the verdict. Why can’t population fluctuations be entered into a computer program, removing political parties and officials, and use Artificial Intelligence to decide redistricting…IF redistricting is needed? Just a thought! Politics and politicians don’t seem to be doing a good job of making these decisions.

  13. After looking in detail at the Princeton Gerrymander Project page and Indiana passed all of their tests in 2016 and 2018, I am not sure how much good this might do. It will obviously cause problems for Ohio.

    Maybe the gerrymandering in Indiana is focused around urban vs rural, but I doubt it. When it comes to the state legislature, the districts around Indianapolis obviously suffer from “packing and cracking”. We have one or two districts that concentrate at the core of the city, and then 6 districts that take a slice of the city and then stretch 60 miles to the north, south, east, or west.

  14. The Supreme Court has long had an easy way out in re “a political question;” just shed jurisdiction by labelling the issue political. Statutes don’t work, an independent commision has a nice ring to it but its findings are subject to litigation (and the hope of plaintiffs that courts will find – irrespective of commission imprint – that the issue is political). Even an attempted constitutional amendment would have rough sailing since Madison plumed that (in a bone to the states righters and before adoption of the 10th Amendment two years later) elections (even federal elections) were given to the states, and one can only imagine that the requisite number of states necessary for such amendment would voluntarily give over such powers to the federal government (kinda like Wyoming agreeing with California that the number of federal senators should be based, as in the House, on population – won’t happen).

    However, and that said, one of the undergirding principles of democracy is majority rule, and gerrymandering lays ruin to such an idea in practice, so what to do? Pass a law establishing an independent commission to do the redistricting chore and hope for the best in lieu of convincing House and Senate leadership to use their constitutional rule making power to disenfranchise those elected by gerrymandering (which would wind up in interminable litigation as well). It’s not a perfect solution but given the context, no perfect solution exists. When first is not available we should go with second or third best, and by the way, the upcoming election is the decennial one where we (whether we know it or not) we are electing gerrymanderers to and including 2030, so let’s be sure to vote for ours.

  15. This remains the number one political issue. But the media refuse to focus on it because there are no bleeding bodies. Without media attention, the politicians can hide. Is it legal to protest in front of the homes of members of the legislature?

  16. Gerald, I remember being taught that one of the beauties of the US Constitution was protection from tyranny by the majority, and that the checks and balances would protect us.

    I will have to agree that that Mitch McConnell and the rest of his Republican coconspirators has proven that if you just ignore your constitutional duty, majority rules is the order of the day.

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