Highlight on Gerrymandering and the Right of the People to Vote Fairly and Equally

by Diane Rufino, March 17, 2022

The term “Gerrymandering” refers to the act of manipulating the boundaries of voting districts to achieve some political advantage. The term was coined during Massachusetts Governor Elbridge Gerry’s tenure, who, in 1812, redrew the voting districts for the Massachusetts State Senate to favor his own party. One district caught the attention of the Boston Gazette, who published a political cartoon likening the district’s shape to that of a salamander and labeling the phenomenon “The Gerry-mander” – after the Governor.

Judicial Watch made headlines when it sued the state of Maryland over its “extreme gerrymandering” of congressional districts and got a favorable ruling by the U.S. Circuit of Anne Arundel County last week.

Tom Fitton, the head of Judicial Watch, made an excellent point in the case his group brought against the state of Maryland on behalf of 12 voters in each of Maryland’s congressional districts representing each of its congressional districts, challenging the state’s recent re-districting maps. Plaintiffs claim that the new maps are the product of extreme gerrymandering and violate and diminish their right to vote and their ability to have their vote fairly recognized (and their “voice” fairly heard). Fitton emphasized that the right at stake is (always is) the RIGHT OF THE PEOPLE TO VOTE AND TO BE HEARD EQUALLY and NOT the right of ambitious politicians and political parties to scheme and be successful at using their authority to attain political power and control.

The lawsuit originally filed by Judicial Watch against Maryland’s state administrator of elections and the chair of the state board of elections, Linda Limone (case name: Parrott et al. v. Lamone) in U.S. District Court for Maryland alleged that the controversial redistricting plan is unconstitutional because it transferred “the power to select congressional representatives from Maryland’s voters to legislators.” Judicial Watch also alleged that “to obtain an electoral advantage, mapmakers need to arrange both their own partisans and those of their electoral opponents in particular district configurations…. But voters do not choose where to live so as to suit the purposes of legislators trying to draw gerrymandered districts…. This is why legislators must distort district boundaries to create districts that contain the mix of voters that best achieves partisan goals.”

That complaint also alleged that the Maryland’s congressional district maps are “the most distorted and confused” in the country and were drawn in a way that violates the U.S. Constitution, especially the provision that “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…” (Article 1, Section 2) as well as Article 1, Section 2 and the Due Process Clause of the 14th Amendment to the U.S. Constitution (which addresses the remedy for a violation of an individual right).

Judicial Watch argued that “the gerrymandering of Maryland’s congressional districts allows Maryland legislators to steal for themselves a significant portion of power to select congresspersons, which power should only be exercised ‘by the People’,” and that “gerrymandering is not something that Democrats and Republicans do to each other. Gerrymandering is something that legislators and other state actors do TO voters.”

According to the lawsuit, the 2011 redistricting plan unfairly, and in an intentionally-partisan fashion, uprooted millions of Marylanders from their previous congressional districts. In fact, the congressional districting plan greatly and confusingly reconfigured Maryland’s congressional districts.  Specifically, the new plan removed approximately 1.6 million Marylanders from their previous congressional district and placed them in a different district. In total, 27 percent of all Marylanders were removed from their previous congressional district and placed in a different congressional district. As the complaint alleged: “Maryland’s gerrymander produces split counties, county fragments, and split precincts,” resulting in the arbitrary political fragmentation of the state.”  The lawsuit argues that the new plan harms not only Republicans, but also Democrats and Independent voters.

Maryland’s recent history of partisan gerrymandering is no secret. It’s 2011 congressional district map, for example, remains one of the most notorious intentional partisan gerrymanders in U.S. history. A federal district judge even openly doubted that it could provide “fair and effective representation for all citizens.” 

The lawsuit relates that a bipartisan commission recommended a map to Maryland Governor Larry Hogan on November 5 that he approved, but the legislature passed a different proposal in a straight party-line vote. On December 9, 2021, Hogan vetoed this proposal, and on the same day, the state legislature overrode his veto again along a party line vote.

As Fitton explains: “Maryland’s gerrymandered congressional district map treats voters like cattle, herding them into districts that defy sense. Traditionally, it has been accepted that the people select their elected representatives.  But currently in Maryland, it’s the legislators who are selecting their constituents. The Supreme Court should address the unconstitutional corruption of gerrymandering, beginning with Maryland.”

Consequently, the plaintiffs asked the district court, among other forms of relief, to declare the Maryland maps unlawful and require Maryland to redraw the maps.

Unfortunately, the U.S. District Court for the District of Maryland ruled for the state in dismissing the plaintiffs’ claims.

Judicial Watch appealed the ruling. (Fitton has already filed an appeal with the US Supreme Court). The appeal is unique in that it presented a “judicially manageable remedy” necessary to resolve clear cases of political gerrymandering, specifically the Polsby-Popper scale, which is one of the most widely used measures of electoral district compactness. Robert Popper, co-creator of the Polsby-Popper scale, is the lead Judicial Watch attorney in this lawsuit and directs the organization’s Election Integrity Project.

Compactness measures have been widely used to assess geographic gerrymandering. Although it is generally accepted that legislative districts should be “compact,” as is often the case, that definition has become something malleable in the hands of ambitious politicians. Numerous, sometimes conflicting, measures of compactness across a number of theoretical dimensions have been proposed in the academic literature, and Judicial Watch prefers the use of the Polsby-Popper scale.

The Polsby-Popper (PP) scale (measurement) is a straightforward application of a mathematically-derived compactness measure which looks at the ratio of the area of the district (AD) to the area of a circle whose circumference is equal to the perimeter of the district (PD). A district’s Polsby-Popper score closest to 1 indicates a more compact district. This scale can be used as a judicially manageable, discernable, and non-arbitrary standard with which to measure, and deter, excessive partisan gerrymandering.     

The formula is  PP = 4 x AD / PD

Maryland’s congressional districts have an average Polsby-Popper compactness score of 11.3.  This is the lowest (ie, the worst) average compactness score for congressional districts of any state in the nation. Outside experts agreed that the plan was flawed, with the nonpartisan Princeton Gerrymandering Project giving it a grade of “F” for fairness and geographic compactness. In 2020, Republicans accounted for approximately 35% of Maryland’s congressional votes, but they’re unlikely to win even a single seat under this plan. This outcome wouldn’t and couldn’t be possible without political gerrymandering.

The congressional map drawn by Democrats would have most likely guaranteed them at least seven of Maryland’s eight House seats, or 87 percent of the state’s seats.

Luckily, and wisely, the appellate court, the U.S. Circuit Court of Anne Arundel County, agreed with the Plaintiffs and Judicial Watch.

On March 25, senior Maryland judge Lynne A. Battaglia of the Circuit Court for Anne Arundel County ruled that Democrats in the state had drawn an “extreme gerrymander” and finally threw out the state’s new congressional map, drawn up by its Democrat-majority legislature. The judge’s ruling found that the map drawn by Democrats had “constitutional failings” and ignored requirements of focusing on “compactness” and keeping similar communities together. In her opinion, she wrote: “All of the testimony in this case supports the notions that the voice of Republican voters was diluted and their right to vote and be heard with the efficacy of a Democratic voter was diminished.”

“With regard to Article 7 of the Maryland Declaration of Rights, Judge Battaglia continued, “the Plaintiffs, based upon the evidence adduced at trial, proved that the 2021 Plan was drawn with partisanship as predominant intent, to the exclusion of traditional redistricting criteria, by the party in power, to suppress the voice of Republican voters. The right for all political participation in Congressional elections … was violated by the 2021 Plan.”

Concluding, Judge Battaglia ordered the gerrymandered district plan to be permanently enjoined (ie, unenforceable) and ordered the Maryland General Assembly to redraw the map by March 30. A hearing for the new map has been set for April 1.

Judicial Watch president Fitton was happy that the appellate court has ordered Maryland to go back and re-draw district maps that respect Maryland voters and don’t make a mockery of common sense and the rule of law. In a public statement, he said: “This key court victory against abusive partisan gerrymandering by Democrats in Maryland could set a national precedent.”

What can all states do in light of this ruling?

First, let’s acknowledge what is going on in the scheming dens of Democratic politicians. Democrats across the country have taken a much more aggressive tack this redistricting cycle than they have in the past, seeking to counteract what they have long denounced as extreme Republican gerrymanders from the 2010 cycle. Democratic state legislatures in New York, Illinois and Oregon drew new maps this year that would have given them a significant advantage over Republicans — and congressional delegations at odds with the overall partisan tilt of each state.

Voters do not choose where to live so as to suit the intentions and purposes of legislators and ambitious (desperate) political parties. They should not have to be used as pawns in political gamesmanship.

The right to vote and for each citizen to be heard equally and fairly is the foundation of this country. It supports the founding notion that it is the people’s country and the people’s government, as outlined in the Declaration of Independence and organized under the social compact, the US Constitution.

There should never be a conscious and intentional effort to re-draw (that is, “gerrymander”) for partisan gain. As Fitton explains, such gerrymandering dilutes and diminishes a voter’s right to cast a fair and equal ballot. Every voter has the rightful expectation that his or her vote will count equally and has not been co-opted and manipulated.


So….  What is the solution? 

Again, extreme gerrymandering violates and diminishes the right of the PEOPLE to vote on an equal basis with all other voters and to be able to be fairly heard through their vote. In the lawsuit he filed on behalf of disgruntled Maryland voters who believed they have been manipulated solely for political purposes, Fitton emphasized that the right at stake is (always is) the RIGHT OF THE PEOPLE TO VOTE AND TO BE HEARD EQUALLY and NOT the right of ambitious politicians and political parties to scheme and be successful at using their authority to attain political power and control.

In 2019, in the case Rucho v. Common Cause, the US Supreme Court opined that the states (North Carolina and Maryland named specifically) are allowed to gerrymander, explaining that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” Chief Justice John Roberts wrote in his majority opinion that states and Congress could pass laws to prevent politically oriented districts but asking the courts to do so would be “an unprecedented expansion of judicial power.”  In other words, the case restates a simple principle based on the separation of powers. Of course, there is also the notion of federalism which (as the Tenth Amendment and Federalist No. 45 clearly explain) which leaves the administration and regulation of elections to the states.

Re-districting always involves some partisan benefit. It can’t be helped. It’s the nature of politics. But what about “extreme gerrymandering”?

The solution I believe is for the state legislature to draft amendments to our NC State Constitution, to be adopted by voters in a ballot initiative. There MUST be an amendment or amendments outlining a precise formula (such as the Polsby-Popper measurement) or procedure that protects and preserves the PEOPLE’S right to vote fairly and with transparency and forever prevents and forbids the ability for intentional partisan re-districting (intention to be inferred from the re-districting plans). There must never be extreme gerrymandering in redistricting maps.

State leaders have to stop playing politics with the people and do what is right. We must always remember that the first priority of government is always to protect, respect, and secure the rights of the people, including the right to vote.

Resources:

Miller v. Johnson  515 U.S. 900 (1995)   [Supreme Court prohibits gerrymandering]

“Judicial Watch Files Voter Lawsuit Challenging Constitutionality of Maryland Gerrymandering Plan,” Judicial Watch, March 24, 2022

“Judicial Watch Victory: Court Rules against Democratic Partisan Gerrymander in Maryland.” Judicial Watch. March 25, 2022

Judicial Watch Continues Fight against Maryland Gerrymandering in US Supreme Court, Judicial Watch, January 5, 2017.  https://www.judicialwatch.org/judicial-watch-continues-fight-maryland-gerrymandering-us-supreme-court/

Pete Williams, “Supreme Court Upholds Gerrymandering in North Carolina, Maryland, NBC News, June 27, 2019.  Referenced at: https://www.nbcnews.com/politics/supre me-court/supreme-court-allows-gerrymandering-north-carolina-maryland-n1014656    [The case – Rucho v. Common Cause]

Polsby Popper scale – https://fisherzachary.github.io/public/r-output.html

Polsbey Popper Scale, analysis for district mapping (presentation) – https://uirc.utah.gov/wp-content/uploads/Map-Grading-Presentation.pdf Ruling, Rucho v. Common Causehttps://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf

About forloveofgodandcountry

I'm originally from New Jersey where I spent most of my life. I now live in North Carolina with my husband and 4 children. I'm an attorney
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