Well, this week we’re going to dive into another conundrum, and kick off another series. We’re bringing our focus back to the political realm again as we return to a topic we’ve covered a little bit before, because there’s just so much happening now with it, and, honestly, it has the potential to reshape the United States for the next decade or more. And it’s already begun.

But it’s not exactly happening in one place. Like many of the changes in the world, it’s happening in a hundred different ways across the US, but they’re all coordinated with the same goal in mind:

Make voting harder and winning an election easier.

Oh... and make overturning a potential loss easier.

At least, for one party.

Unnecessarily biased? Maybe.

But then, the ways these things are framed are meant to be sold in broad daylight, even packaged as part of campaign platforms and advertised. We’ll run through what’s happening, and why we think we can make this claim and still stick to the claim of wanting to cut to the truth of a matter without undue bias. It’s likely one of the most important discussions we’ve had on this show in a while, at least when it comes to long term impacts.

If you’re new to this show this week, understand that generally we don’t make sweeping claims about the nature of what we’re discussing, and try to save the issuing of our opinions for discussions that come near the end of the episode so we can get the information out first. Or at least flag when we’re giving our opinion unnecessarily.

We know this is a bit longer than our usual disclaimer at the beginning of a show, but we came out of the gates with a pretty bold claim on this one, and wanted to make it clear that we’re acknowledging that up front.

But we find the arguments pretty compelling. And think you will, too. And still, we promise to present as much of a balanced argument as we can find for what’s going on and why.

Broadly, this series is going to focus on the various pieces of legislation around voting both nationally and on the state and local levels. You’ve probably heard parts of some of the things we’re going to talk about, such as the new voting laws enacted by Georgia, but you probably haven’t heard of all of it. In fact, there are nearly 20 states in which voting restrictions have already passed at least one step of the legislative process, and over 300 voting restriction bills have been introduced in state legislatures this year. (Samuel et al., 2021)

This is part of a reactionary wave in Republican held legislatures across the nation. The constant refrain that the election was stolen has led to a push to rewrite election laws so that they benefit Republican candidates. These laws include efforts like new barriers to voting (especially mail in ballots), changing Electoral college and judicial election rules, restricting citizen-led ballot initiatives, outlawing private donations that provide resources for administering elections (Wines, 2021), and blocking legislation that would limit partisan districting.

 

Here’s where things get tricky, and where we acknowledge the reality that we frequently bring up: the effects of any particular action, law, or plan aren’t always easy to tease out, and there’s not a lot of evidence one way or the other that laws like those mentioned above are going to hurt one party or help another. (Cohn, 2021) Sometimes an action that makes things more difficult causes the intended target to work even harder to overcome the obstacle, ultimately backfiring.

 

But even if the laws don’t have the cataclysmic effects on voter turnout that some doomsday prophets foresee (and let’s be honest, things are rarely as bad as the most fearful would have us believe), the morally correct thing to do, we think, is to draw the potential problems out in the open so that they can be addressed. If a law does restrict voting access, even if real numbers of voters don’t go down, that law is still unjust. Put another way, it is wrong to allow things passed with ill intent, even if the end effect isn’t as bad as feared. Allowing the continuation of laws and rules that have disparate impacts on various population groups, no matter how small, is how we ended up with systems that systemically disadvantage massive portions of our population. 

Further, the context in which these changes are being passed does allow a glimpse at the reasoning behind the sudden concern for “election security.” Roughly half of the voting restrictions that have been introduced regulate absentee voting, the states being targeted are disproportionately swing states, and this surge in legislation has only occurred since the 2020 election. And, though some of the legislation has been introduced by Independents and Democrats, the overwhelming majority has been introduced by Republicans. (Frostenson et al., 2021)

We’ll get to many of the issues as we progress through this series, but today we’re going to focus on one specific aspect of election manipulation: gerrymandering.

Stupid name, serious topic

There’s a pretty specific reason we wanted to start here in our discussion of voting restriction and voter rights:  Gerrymandering is the underlying foundation that allows for the success - even the introduction - of much of the legislative work we’re going to talk about.  

You see gerrymandering, by definition, is the intentional manipulation of election districts with the goal of making it easier to get candidates from one party elected, and more difficult for candidates from the other (or another in the rare case that there is a viable third party presence). It is, essentially, a way for politicians to choose their voters instead of the voters choosing their representatives. 

There are a variety of ways that politicians engage in the practice of gerrymandering, minimizing or maximizing the political power of groups based on age, race, income, insert your favorite demographic here. But at the root of most of these things is the desire to gain power for one party or another, and that’s where we think the heaviest importance lies for this topic.  

You’ll hear us use the term “partisan gerrymandering” fairly often in this episode, and we’re doing that to clearly communicate that the motivation for manipulating these districts is to gain that partisan advantage, rather than to prop up prejudice or discrimination simply for their own sake. If we talk about politicians concentrating black voters into one district, or dividing Evangelical voters into many districts, it’s with the understanding that they are maneuvering for partisan advantage. 

We’ll get more into the technicalities of how parties gerrymander in a little bit, but to put it bluntly: The goal is to waste as many votes for the other party as possible. Sometimes this means dividing districts to diffuse strong support for one party, sometimes it means redrawing lines to maximize party support in one area. And it’s really, really effective.

As evidenced by the 2012 elections for the U.S. House of Representatives - referred to as the Great Gerrymander in one journal article I read - in which Democratic candidates across the country won 1.5 million more votes than Republican candidates, but Republican candidates won 33 more seats… thus giving them majority control of the House. It was the first time in 40 years that the party who won the most votes in the election did not also win the most seats in the House. 

This is particularly alarming, because while the Senate is meant to give equal representation to every state, despite population size, and the Presidency utilizes the electoral college to (poorly) attempt to level the playing field between smaller and larger populations, the House is pretty explicitly meant to represent the population demographics of the country a little more accurately. That’s why seats are allocated based on the US Census: more people means more representatives in the house. This is supposed to balance the outsize power sparsely populated states like Wyoming have in the Senate. In an ideal situation, legislation has to pass in both the more representative and less representative chambers. But when you have a 1.5 million vote disparity between the majority and the minority parties in Congress… well, there’s something rotten in Denmark.

And this process would be concerning if it only applied to federal elections, but the most troubling part is that it applies to state legislature elections as well. This means that when these lines are drawn to favor one party or another, the effect on representation for a state population can be far reaching.  (Engstrom) But more on that in a little bit. Right now, it’s time for a history lesson.

A Brief History of Gerrymandering (Little)

Picture with me, if you will, a mythical creature. Its body: similar to a dragon, long and lithe with taloned toes and a barbed tail. Its neck: long like a sea serpent of sorts. Its head is small, almost an extension of its neck, but with a hooked beak. If your preferred listening platform supports our episode art, you will have seen its likeness already. This fearsome creature is none other than the Gerry (pronounced GARY) Mander.  Though now we’ve taken to using the softer “j” sound 

*man, this just feels like a natural point to open discussion on the gif vs jif debate… but no, we’ll just have to leave that for another day.* 

It is this very same creature that gave rise to the topic of today’s discussion. 

In March of 1812, the Boston Gazette ran this image as a political cartoon depicting a “new species of monster” created from the outlines of a strangely contoured MA voting district that Jeffersonian Republicans had drawn to benefit their party. Then governor, and future vice president, Elbridge Gerry signed off on the plan and accidentally tied his future legacy to one of the hallmarks of shifty political shenanigans. (Brittanica) I mean, thankfully for him, at least we’ve mispronounced it for so long that he could probably claim plausible deniability. 

But long before good old Elbridge lent his last name to the process, manipulating voting districts for political advantage was standard practice. In 18th-century England, political operatives created “rotten boroughs” that housed only a few eligible voters so that politicians could effectively buy their votes and gain parliament seats. Once colonists laid their claim to the United States, the same practices influenced their early voting districts. There’s evidence that politicians in late 18th and early 19th century Virginia, North Carolina, and South Carolina drew districts to benefit some candidates over others. 

Still, the district drawn in that 1812 Massachusetts map was the most egregious documented up to that point. Politicians were much bolder than they had been before, contorting districts into strange shapes in pursuit of their party’s gain.  It worked pretty damn well, too. In that election the Jeffersonian Republicans received roughly 49% of the vote but won 29 of the 40 available seats in the state Senate. 

Interestingly enough, their plan did essentially backfire on them though. There was some pretty substantial backlash, and the very next year the Federalists regained control of the state legislature.  Ironically, it was the Jeffersonian Republicans’ thinly drawn districts that allowed them to lose control with just a small shift in political opinion. And then, of course, the Federalists redrew the districts. 

Though gerrymandering continued after the situation in Massachusetts, its popularity really ebbed and flowed based on the intensity of two-party competition in any given area at any given time. That is, until Black men won the right to vote after the Civil War. Then it was time to take things “up a notch” (to quote Thomas Hunter, political science professor at the University of West Georgia), especially in southern states where districts were drawn to maximize the advantage for the Democratic Party which was supported by most white southern voters. Which is such a weird sentence to say these days. 

The most popular way to do this was to concentrate as many black voters as possible into one district so that the rest of the districts in the area would have white majorities and win more seats. For example, in 1882 South Carolina created a long “boa constrictor” district into which it concentrated its Black voters - who made up the majority of the state’s population at the time - so that every other district had a white majority.

Gerrymandering in the US South faded for about 60 years, thanks to the effectiveness of poll taxes, lynchings, threats of violence, and other forms of oppression for keeping Black people and immigrants away from the polls. In fact, some states didn’t change their districts at ALL during that time. But then came the “redistricting revolution” under SCOTUS Chief Justice Warren. That’s when the Court ruled that all state voting districts should have roughly equal populations, and that states must adjust their federal congressional districts after each Census so that each of the members of the House represents roughly the same number of people. 

There was a brief period after that time when legislation and Court rulings helped ensure that voters were more evenly represented in their state legislatures and the House. But then came the advent of personal and popular computing technology and, well, it got really easy for political movers and shakers to strategically map out districts to benefit whichever party was paying the bills while still staying inside the lines of “representation”. Like the I-85 district, officially NC’s 12th district, which essentially ran along the interstate highway and at one point was narrower than the highway itself. 

Perfecting your Gerrymandering Technique

You know that old saying, “It takes a whole village to redraw an election district”, right?  No?  Well, let us enlighten you.  Oh boy does it ever.  When district lines are redrawn, it often takes a computer, redistricting consultants, political cartographers, and legislative staff just to account for the increases or decreases in population in each area.  Though the U.S. Supreme Court requires that districts representing each chamber of a state legislature, and for the House of Representatives, be roughly equal in population - with an expressed purpose of trying to provide the people with “fair and effective representation” - the drawing of districts is rarely ever focused solely on how many people live where.  (Engstrom)

According to political science professor Richard Engstrom, the primary interest of many of the people participating in the redistricting process is much more - maybe even blatantly - political. Though they do technically satisfy the one person, one vote rule established by SCOTUS, these “equipopulous gerrymanders” do more to hinder that fair and effective representation idea than they do to support it. 

Ideally, when NON-PARTISAN experts and analysts look at districts within a state to determine whether partisan gerrymandering is an issue, they’re looking for a sort of baseline called proportionality, or proportional representation. Explained simply, proportional representation exists when each party wins a percentage of the seats up for grabs that roughly matches the percentage of votes their candidates received. To illustrate this idea using completely made up math (my favorite kind)... If there were 100 seats at issue in an election, and each party received 50% of the votes, then each party should win 50 seats. If one party won 83% of the votes, they should win 83 of the seats - give or take a few. 

The idea of proportional representation has long been held up as a standard of measurement for redistricting.  One of the earliest and most authoritative scholars on the topic made the assertion that when political parties “win seats in legislatures roughly proportional to their share of the popular vote, that ideal is the very core of the term fair representation.” And, SCOTUS upheld that idea in the 1973 decision Gaffney v Cummings, when they held that it’s acceptable to enact a “political fairness principle” in redistricting that achieves a rough approximation of the state-wide political strengths of the two major parties. In other words, if a state wants to draw a redistricting plan that reflects the political affiliations of the people, the Court is cool with it.  (Engstrom)

Surprisingly (to me, at least) the techniques used to accomplish these manipulations are pretty simple in concept. Are you ready for a rundown of modern gerrymandering tactics? (ProPublica)

First up, we’ve got Cracking.  This technique splits a community into multiple districts so that the community can’t have a significant effect on a candidate or party’s success. For example, when racially motivated redistricting was more common, Black communities were often divided across districts to reduce the likelihood that they would elect Black or sympathetic candidates. Today, this technique is often used in densely populated urban areas (which tend to vote fairly homogeneously) to divide support for Democratic candidates. When you look at a district map, you can spot cracking by looking for the convergence of multiple districts in a small, densely packed area. 

Another common tactic for professional gerrymanderers is Packing, which takes all those troublesome voters and wraps them up into one district instead of splitting them up.  Packing minimizes the “losses” for one party by concentrating the other party’s wins into just a few districts. This keeps the voters they do want in the rest of the districts and allows the preferred party to win those. Voters in packed districts lose out on representation because no matter how many voters are in that district, they only have control over one representative seat. If the population were spread across more districts, they could potentially influence multiple seats.  

When you’re looking for packed districts on a map, look for densely packed areas, often with odd shaped areas, surrounded by sparsely populated districts. Sometimes these packed districts are urban centers, but oftentimes they are concentrated areas of one non-explicitly-political demographic or another. Like immigrants, Black Americans, or Hispanic and LatinX voters. Bonus vocabulary word: When race is involved in packing efforts, the pros call it “bleaching”.

Hijacking allows redistricting gurus to take out incumbents they don’t like by redrawing districts to pit them against a stronger candidate, or weaken their support by separating them from former constituents.  Are there two incumbents causing problems?  Pit them against each other in their own district forcing a costly primary race and guaranteeing that one of them is removed from the race. 

When hijacking won’t work, operatives might just resort to kidnapping. But not in the actual physical sense. Most politicians draw their support  - like allies, donors, and even simply name recognition - from the geographic political bases in which they built their careers. So, if redistricting operatives want to weaken their political influence, they might just redraw the representative’s district to remove them from their support base.  

Oh, and we can’t forget about the sweetheart gerrymander!  When incumbent candidates of different parties are just plain happy with the way things are, sometimes they’ll work together to draw districts that help ensure that everyone who’s already in office stays there. How romantic. 

Any one of these techniques alone counts as partisan gerrymandering, but you can imagine how effective they might be collectively for swinging partisan power in one direction or another. And, whenever you have consultants and operatives and politicians manipulating representation for the purpose of gaining political control, it’s only logical that the will of the people will be much more difficult to express. 

How it affects voters/voter suppression/election results

And that’s precisely why we felt the need to break this down at the beginning of our series on voter rights and representation. Because we believe that research-based evidence supports the assertion that partisan gerrymandering interferes with the democratic process in the United States in a way that should be considered unacceptable. 

Gerrymandering is completely against the ideals of democracy. It discourages competition, because why would anyone run for an office in a district where they have at an extreme disadvantage? Running for public office is time consuming, exhausting, and very expensive. It would be a Sisyphean task for a ruby red Republican to run for office in the sapphire electorate of Washington, for example. Now imagine if Washington had been sliced up so that there were two blue voters for every one red voter in a given district (that would be the “cracking” we talked about earlier). If the task seemed hard before, that would make it downright impossible.

And that means that gerrymandering leads to bad representation for US citizens. What if, in our hypothetical example, Washington were drawn fairly, and it turned out a Republican stood a chance of winning? The resultant government would be more democratic, then, because the constituents would have an actual representative in the government. But gerrymandering trades a “more perfect union” for cynical calculus with an end-game of controlling as much power as possible.

How we’re seeing it in these battleground states

The impact of gerrymandering cannot be overstated, I don’t think. Currently, it's most prevalent in states under Republican control, due to the fact that Republicans cleaned house in the 2010 election. Why was this particular round of elections so important? 2010 was the year of the previous US Census. So when Republicans took control of several state legislatures that year, that means that they took control of the reins to draw the redistricting maps. And the national Republican Party poured a lot of money, expertise, and time into state level races with the explicit purpose of gaining control over redistricting, something the national Democratic Party had not prioritized. (Wines, 2019)

As of 2019 the most gerrymandered House maps were in North Carolina, Michigan, Ohio, and Texas. Notice how they are all currently Republican held states that are often considered swing states. On the flip side, Maryland and Illinois (and, to a lesser degree, California) are considered the most gerrymandered Democratic controlled states. (Wines, 2019) On a strategic note, this highlights the results of the specific push by Republicans to control the map redraw in 2018: none of the Democratic controlled “most gerrymandered” states were battlegrounds in 2020. All of the Republican held ones were, and the election essentially hinged on the Wisconsin outcome at one point. I’m not sure I need to remind any listeners of the days of post election drama after last November’s elections, but for the historians listening to this in 3025, basically the entire world was watching what happened in Wisconsin for what might be the first time… ever. Sorry to any Cheese Heads in the audience.

And that was part of the plan. Wisconsin State Assembly members are all elected every two years. Historically, Wisconsin has pretty reliably swung back and forth from Republican to Democratic control in statewide elections for governor, US Senator, and other offices. But, the Republicans controlled Wisconsin in 2011, when the district maps were redrawn. In the next election, which would usually see a minor shift in power, or modest gains at best, the Republicans won a supermajority. (Wines, 2019)(A supermajority means that Republicans held far more than half the seats in the Assembly. A standard benchmark is two-thirds of the assembly, but there’s no hard and fast ratio. Often it’s used when one party doesn’t need any support from the other to pass legislation, but this isn’t necessarily the definition.)

That, in and of itself, was odd. Obviously, swing states usually don’t find the power division to be so off balance, or they wouldn’t really be swing states. They’d be Alabama. But what really makes this particular instance stand out is that Democrats won every. Single. Statewide office that year. (Wines, 2019) On a statewide level, Democrats had more support. But the districts had been drawn such that Republicans were winning local elections, which means that Republicans ended up controlling the “Congress” of Wisconsin, despite the election of a Democratic everything else.

Oh, and before we go… 

(BallotPedia, Payne-Riley)

We’ve spent the last hour or so outlining the negative effects of Gerrymandering on voter representation and the people’s ability to express their will. But we have not addressed whether or not there are any pro-gerrymandering positions.  And, that’s because in all of the research we’ve done for this episode, we only found one.  And it’s really not a pro-partisan manipulation argument, it’s more of a “sometimes you redraw districts with specific intention and that’s not a bad thing” argument. But, understanding this perspective is important for rounding out the conversation and avoiding misunderstanding, so here’s the premise:

Gerrymandering can guarantee representation for an otherwise under-represented group. 

The basis of this argument relies on the packing technique we talked about earlier, where significant numbers of supporters for one party are packed into a single district to concentrate their influence. But for the purposes of this argument - and what’s really crucial - is that the goal is not to dilute their influence elsewhere. The goal is to guarantee them consistent representation by concentrating enough members of this group into a district to effectively guarantee that they have a majority vote and that their interests will be represented as a result of their votes.

One such use for this concept is the majority-minority district. The Equal Protection Clause and the Voting Rights Act of 1965 both prohibit the redrawing of districts in a way that would improperly dilute the votes of racial or language groups (provided that there is significant enough cohesion that they would vote collectively). This means that in areas where populations of minorities are high, districts may need to be drawn in such a way as they create an effective political majority in order to avoid diluting the votes of the minorities in the area. 

Another use for this idea is to concentrate members of a political minority into a singular district in order to allow them effective representation in states where they may not otherwise achieve it.  However, I could only find this used ideologically in conversation about the topic, I did not find any evidence of it actually occurring. 

But like we said just a few minutes ago, this kind of action really does not fit the definition of partisan gerrymandering that we’ve been discussing in this episode because the intent is not to angle for advantage over the other party. That manipulation is what we’re warning against, and what sets the stage for further conversation about voting rights. 

Good News

The U.S. Education Department on Wednesday expanded its interpretation of federal sex protections to include transgender and gay students, a move that reverses Trump-era policy and stands against proposals in many states to bar transgender girls from school sports.

In a new policy directive, the department said discrimination based on a student's sexual orientation or gender identity will be treated as a violation of Title IX, the 1972 federal law that protects against sex discrimination in education.

 

These protections carry the possibility of federal sanctions against schools and colleges that fail to protect gay and transgender students. Under the federal law, students who face sex discrimination can bring complaints to the Education Department or federal courts. Schools found to have violated Title IX can face a range of penalties as severe as a total loss of federal education funding, although the Education Department has never dealt that punishment. (Associated Press, 2021)

Also!

President Biden on Thursday signed a bill to recognize Juneteenth — the celebration to commemorate the end of chattel slavery in the United States — as a federal holiday.

Juneteenth is celebrated annually on the 19th of June to mark the date some of the last enslaved people in the Confederacy became free.

While Lincoln had signed the Emancipation Proclamation in 1862 to free enslaved people in Confederate states, it was not until two and a half years later that many Black people still held in bondage in Texas were told that the order had freed them.

Texas' isolation from the rest of the country and remote landscape kept Union soldiers from enforcing the message as quickly there as they had been able to elsewhere.

It was not until months later with the passage of the 13th Amendment that slavery was abolished on the federal level, not just in states that had aligned themselves with the Confederacy. (Wise, 2021)

 

Bibliography

Associated Press. (2021, June 16). Biden admin extends protections to transgender students. King5 National Politics. Retrieved June 17, 2021, from https://www.king5.com/article/news/politics/national-politics/biden-admin-extends-protections-transgender-students/507-f5c83933-febe-44b6-b491-30f526593641

BallotPedia. (n.d.). Majority-Minority Districts. BallotPedia. Retrieved June 17, 2021, from https://ballotpedia.org/Majority-minority_districts

Cohn, N. (2021, April 03). Georgia’s Election Law, and Why Turnout Isn’t Easy to Turn Off. The New York Times. Retrieved June 14, 2021, from https://www.nytimes.com/2021/04/03/upshot/georgia-election-law-turnout.html

Duignan, B. (2019, August 01). Gerrymandering. Brittanica. Retrieved June 16, 2021, from https://www.britannica.com/topic/gerrymandering

Engstrom, R. L. (2020, January). Partisan Gerrymandering: Weeds in the Political Thicket. Social Science Quarterly, 101(1), 23-37. EBSCOHost. Retrieved June 15, 2021, from http://web.a.ebscohost.com/ehost/pdfviewer/pdfviewer?vid=0&sid=a90567a8-5865-4282-9c31-8e74e83d4578%40sdc-v-sessmgr01

Frostenson, S., Rakich, N., Samuels, A., & Azari, J. (2021, April 07). Why We Are (And Should Be) Talking About Voting Rights Right Now. FiveThirtyEight. Retrieved June 14, 2021, from https://fivethirtyeight.com/features/why-we-are-and-should-be-talking-about-voting-rights-right-now/

Little, B. (2021, April 20). How Gerrymandering Began in the US. History.com. Retrieved June 16, 2021, from https://www.history.com/news/gerrymandering-origins-voting

Payne-Riley, L. (2017, August 1). A Deeper Look at Gerrymandering. Policymap.com. Retrieved June 17, 2021, from https://www.policymap.com/2017/08/a-deeper-look-at-gerrymandering/

Pierce, O., Larson, J., & Beckett, L. (2011, November 2). Redistricting, a Devil's Dictionary. ProPublica. Retrieved June 16, 2021, from https://www.propublica.org/article/redistricting-a-devils-dictionary

Samuel, A., Mejia, E., & Rakich, N. (2021, March 29). The States Where Efforts to Restrict Voting Are Escalating. FiveThirtyEight. Retrieved June 14, 2021, from https://fivethirtyeight.com/features/the-states-where-efforts-to-restrict-voting-are-escalating/

Wines, M. (2019, June 27). What Is Gerrymandering? And How Does it Work? The New York Times. Retrieved June 17, 2021, from https://www.nytimes.com/2019/06/27/us/what-is-gerrymandering.html

Wines, M. (2021, February 27). In Statehouses, Stolen-Election Myth Fuels a G.O.P. Drive to Rewrite Rules. The New York Times. Retrieved June 14, 2021, from https://www.nytimes.com/2021/02/27/us/republican-voter-suppression.html

Wise, A. (2021, June 17). Juneteenth Is Now A Federal Holiday. NPR. Retrieved June 17, 2021, from https://www.npr.org/2021/06/17/1007602290/biden-and-harris-will-speak-at-the-bill-signing-making-juneteenth-a-federal-holi