Counting those who do not count. Prison-based gerrymandering in Granville County, NC: a case study and more.

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(1)University of Amsterdam, Graduate School of Humanities.. Counting those who do not count Prison-based gerrymandering in Granville County, NC: a case study and more. Wijnand Frederik Kuijs Student number: 10658351 Email address: Supervisor: Dr. G. Blaustein.

(2) Preface When I started with this project I was looking for a topic within the realm of partisan politics. While I did not know immediately what exactly I was looking for, I knew one thing; the topic had to be approachable from a policy perspective too – rather than solely a historical perspective. After endless brainstorming and preliminary research I got to gerrymandering, after which I started focusing on prison-based gerrymandering. This is probably the point where I should write how much I enjoyed the process and how much I learned from it all, but that wouldn’t be the complete truth. While the latter is certainly true; I learned a lot about prison-based gerrymandering, and with so few people actively involved with research into this political phenomenon I would almost want to go as far as considering myself an expert now – almost. Enjoyment however was often overshadowed by lots of stress these last couple of weeks. The research itself was certainly interesting and enjoyable, and the same could even be said about most of the writing, but with the deadline approaching stress certainly took over at times. I can imagine I haven’t been the most fun to be around while working on this project at times, especially the last few weeks. Therefore I have to thank those that have chosen to live their daily lives with me – my girlfriend and my cat – for their patience and support during this period. Academically speaking there are two people I would like to thank. First and foremost Dr. George Blaustein, my supervisor during this project. While I realize that feedback and guidance are part of why a supervisor is there to begin with, I still benefited from it greatly and am therefore thankful. However, I am actually most thankful for the fact that you know how to make me think and work outside of my comfort zone; the learning experience wouldn’t have been half as great without these questions that arise where two ideologically different people meet. Secondly I would like to thank Peter Wagner; not only did he manage to make time for an interview and help me find various sources, but his work as a pioneer against prison-based gerrymandering formed the heart and soul of why I ended up working so passionately on a project about prison-based gerrymandering.. 1.

(3) Table of contents Introduction. 3. Chapter 1: Gerrymandering Section 1.1: The various types of gerrymanders Section 1.2: The historical context Section 1.3: Gerrymandering: good or evil? Section 1.4: Home is where the heart is. 8 9 14 18 25. Chapter 2: Men lie, women lie, numbers don’t Section 2.1: Granville County, NC Section 2.2: Prison impact within Granville County, NC Section 2.3: Prison impact in the Tar Heel State. 32 32 36 44. Chapter 3: Talk is cheap, but it’s still important Section 3.1: Into the wild Section 3.2: Doing wrong & losing rights Section 3.3: Counting prisoners or counting money?. 49 50 53 56. Conclusion. 59. Bibliography. 62. Appendices Appendix A: Selected articles from The Atlantic, The Economist, The New Yorker, Newsweek, and Time Appendix B: Map of Granville County commissioner districts Appendix C: Own calculations: North Carolina prison data and SPCOP Appendix D: Transcription of Peter Wagner interview by Wijnand Kuijs. 2.

(4) Introduction Somerset County, MD never used to have voting districts for its county commission, until a Voting Rights Act lawsuit needed to be settled.1 One district was then drawn as a majority-minority district to enable the African-American community to elect a candidate that represents them. Due to bad luck for the African-American community a white representative finds himself elected. Not much later a prison is opened in the district, then the Census is taken and it becomes necessary to redistrict again. This ends up splitting the black community in two pieces; neither of them large enough to elect a candidate from their own community and leaving them in a false majority-minority district where the white incumbent stayed in office over the next 20 years.2 The irony is that in the district with the prison there are actually enough African-Americans, sadly enough far from all of them are eligible to vote; the African-American resident population is too small, but the African-Americans who are locked up in said prison increase the number for the Census and therefore qualify it as a majority-minority district.3 Had the prison population not been included in the Census data used for redistricting the group of black voters that was now split up would have been large enough to form a legit majority-minority district, and would therefore had had a legitimate chance of electing a representative from their own community.4 The problem at hand is known as prison-based gerrymandering – one of the possible tools within gerrymandering. While carving up voting districts in a way that is favorable for the party in charge of redistricting to an unfair extend can be done in several ways, prison-based gerrymandering is the “art” where one uses prisoners to increase the voting power of a certain district. By counting prisoners in the district where their prison cell is located rather than where they lived before their incarceration, the district that includes the prison suddenly increases their population with the inmates who are all not eligible to vote. Said district will then need less actual residents to meet the district size criteria, which means that the votes of its actual voters are stronger than those of residents that live in districts without a prison.5 This is a dilution of voting power, and one that causes harm twice actually. First it inflates the population numbers and therefore voting power of districts that include a prison, but it also decreases population numbers and voting power in the districts. 1. Peter Wagner, “Somerset County Says No to Prison-based Gerrymandering”, Prison Policy Initiative, February 4, 2010, accessed June 29, 2015, http://www.prisonersofthecensus.org/news/2010/02/04/somersetvote/. 2 Peter Wagner, interview by Wijnand Kuijs, interviewed via Skype, May 1, 2015. 3 Wagner, “Somerset County Says No to Prison-based Gerrymandering”, accessed June 29, 2015, http://www.prisonersofthecensus.org/news/2010/02/04/somersetvote/. 4 Peter Wagner, interview by Wijnand Kuijs. 5 Peter Wagner, “Breaking the Census: Redistricting in an Era of Mass Incarceration”, William Mitchell Law Review 38:4 (2011-2012) 1241-1242.. 3.

(5) where the prisoners used to live prior to their sentence.6 Scholars have labeled prison-based gerrymandering in various ways; from a historical mistake to a violation of the fundamental principles of equality.7 Authors also point out the racial element involved; with racial minorities disproportionately overrepresented in prison, prison-based gerrymandering does most harm to these communities – since they lose residents to other districts relatively more often.8 The unfair nature of prison-based gerrymandering is the main reason why this research is focused on the phenomenon. Whilst not claiming that a single research paper will make a difference, not addressing the issue does not help for sure. And this research sides itself with the calls for reform. The focus and purpose of this thesis is twofold: first it seeks out to prove that the impact of prison-based gerrymandering on larger districts such as Congressional districts can potentially still be meaningful – although it strongly confirms the opinion that its influence on smaller districts and the county level are much stronger. It has been argued that the impact of prison-based gerrymandering can be witnessed predominantly in smaller districts, because a relatively small non-voting bloc can still make a significant contribution towards voting dilution there.9 A case study conducted in this research about prison-based gerrymandering in North Carolina will demonstrate that while the former is correct, prison-based gerrymandering can also shape voting dilution at the Congressional level. Secondly, I will aim to broaden the perspective of the debate about prison-based gerrymandering by addressing related issues that have not seen the coverage they deserve until now. As a relatively new subject in the discourse on gerrymandering, the debate about prison-based gerrymandering has for a large part been focused on how large the impact of prison-based gerrymandering is in several case studies. While these research outcomes are certainly valuable, raising questions that are broader than the statistical impact of prison-based gerrymandering can hopefully ignite a new discourse within the debate that reaches new readers too. Raising awareness and public debate might eventually even increase the call for reform. The way this research paper seeks to achieve these purposes is through three chapters. The first chapter will provide the background information, historical context, and academic debate on prison-based gerrymandering and gerrymandering itself. Among the difficulties in reaching people with their message – which calls for reform – Peter Wagner of Prison Policy Initiative mentions that 6. Dale E. Ho, “Captive Constituents: Prison-based Gerrymandering and the Current Redistricting Cycle”, Stanford Law and Policy Review 22:2 (2011) 391. 7 Ibid, 355-356. & Wagner, “Breaking the Census”, 1254-1259. 8 John C. Drake, “Locked Up and Counted Out: Bringing an End to Prison-based Gerrymandering”, Journal of Law & Policy 37 (2011) 246-47. 9 Jason P. Kelly, “The Strategic Use of Prisons in Partisan Gerrymandering”, Legislative Studies Quarterly 37:1 (2012) 120, 128-131.. 4.

(6) since many people do not know what gerrymandering is, or how redistricting works, it is hard to explain prison-based gerrymandering and what is wrong with it.10 It is therefore of importance to address this first. Chapter 1 will address what defines gerrymandering and how it works, its historical context, the different methods of gerrymandering, the pros and cons of gerrymandering according to both academic as well as popular work, and concludes by specifying prison-based gerrymandering. This should provide any reader with enough knowledge on the topic at hand to understand the following two chapters, and the discussion of the results. Chapter 2 will use the concluding section of chapter 1 as its starting point; where the debate about prison-based gerrymandering set the framework for this research, the second chapter will use that framework for follow-up research in the form of a case study. This case study examines prisonbased gerrymandering in North Carolina, by focusing on the correctional facilities in the small town of Butner. First it will examine its impact at the county level – as a means to confirm previous research. Then it will examine the impact at the Congressional level to illustrate that, while significantly smaller, prison-based gerrymandering can actually potentially influence districts of these sizes too. I will argue that the influence of prison-based gerrymandering on Congressional districts can be meaningful, although it must be added immediately that one may hold a different opinion on what should be considered “meaningful” exactly. What I consider meaningful in this context is when the allocation of prisoners is done in such an orderly fashion that certain regions obtain a disproportionately large number of prisoners as “residents”. The third and final chapter will take on a different form; rather than providing a new argument I seek out to add new perspectives to the debate about prison-based gerrymandering. Moving away from the statistical impact prison-based gerrymandering may have on districts and their voting power, this chapter will incorporate more qualitative than quantitative questions into the debate. “Quality of life questions” is how I would describe these myself. By examining the possible relation between prison-based gerrymandering on one side and homelessness, human rights, and the false illusion of economic development on the other, this chapter aims at providing an additional humanities or philosophical point of view to the debate – in addition to the legal point of view and the political science point of view. The reason that I have incorporated both quantitative and qualitative research together is because I think that prison-based gerrymandering as a political tool also finds itself at the crossroads between quantitative and qualitative issues. On one hand there are reform groups who act on behalf of equality and fairness, two very qualitative words – that can expressed in a very quantitative way too actually. Or with false majority-minority districts – which again can be quantified too – one could 10. Peter Wagner, interview by Wijnand Kuijs.. 5.

(7) ask if it is right that minority communities are not able to elect a representative that is in their interest. On the other hand there is the decennial population count by the U.S. Census Bureau, which is quantitative in its very essence. With the Census being a part of the U.S. Constitution it could even be argued that the Constitution itself is both qualitative and quantitative by nature.11 It is therefore important that this research covers both aspects as well. It is also important to know more about the sources. While reading this research paper one thing will undoubtedly pop out; the name Peter Wagner is mentioned several times in the references. That is because Peter Wagner and his work have served as both a source as well as an inspiration for this thesis. I would almost argue that this research would not have been complete without the incorporation of Wagner’s work and knowledge on prison-based gerrymandering. Wagner was one of the pioneers that awakened a national movement for prison-based gerrymandering reforms, and was of help during this project both by supplying source material as well as serving as source himself through an interview via Skype. A profile on Peter Wagner and the transcription of the entire interview can be found in appendix D.12 It also worth making a few remarks on the sources used for the quantitative analysis. First and foremost it needs to be understood that all calculations were made using the data of that specific day. With inmate populations changing on a daily basis – due to releases or new arrests – the outcomes of said calculations would slightly change if a calculation was made on another date with the data available on that specific date. Secondly, it is important to note the obstacle that was encountered obtaining this data; namely, the difference in data availability between federal prisons and state prisons. While the federal prisons in Butner, NC publicly list their inmate populations, the North Carolina state prisons only publicly list their inmate capacities and the total number of inmates incarcerated in the system at a specific date. This calls for calculations of the average usage rate for the state prisons’ capacities, which – due to the earlier mentioned argument about daily changes in inmate population – would be different if the calculation was done again on a different date. Finally it is important to note that calculations could only be made for a scenario in which prisoners were excluded entirely from districting purposes, and not for a scenario in which the prisoners would be counted at their last known addresses. The simple reason is that neither federal prisons or state prisons were willing to share to required information for those calculations. While this paper may be on the side of calls for reform of prison-based gerrymandering, its purpose is not necessarily to win readers over for this same point of view. If anybody, upon reading the argument made in this paper and in previous research, feels supportive of prison-based gerrymandering that is their right. What this paper does aim for is to increase the debate about 11 12. U.S. Constitution Art.1, S.2, C.3. See appendix D.. 6.

(8) prison-based gerrymandering; also about related matters that have not been discussed much – if at all – before, and among scholars and others from disciplines that have not been actively involved in the debate about prison-based gerrymandering yet.. 7.

(9) CHAPTER 1: GERRYMANDERING This first chapter will focus on the emergence and development of the various types of gerrymandering, their implications for the regions that are struck by gerrymanders and the people residing in these areas, and the current debate regarding gerrymandering – and redistricting in general – examining both the arguments in favor of gerrymandering as well as those opposing it. Section 1.1 will explain the differences and similarities in strategies used and their impact between partisan gerrymanders and incumbent gerrymanders. The chapter will open with this theoretical section for its importance to understanding how gerrymanders work and what their potential upsides and threats are to both politicians and the people they represent. Next I will address the historical context and development of gerrymandering in section 1.2; since checks and balances to redistricting plans such as the ‘one-person, one-vote doctrine’ and the Voting Rights Act have not always been around to protect equal voter representation, states had a largely free pass in the beginning in how and when they wanted to redistrict – if they even chose to patch up their state in districts rather than electing their House representatives through statewide at-large elections, known as the “general ticket”.13 This part will examine how – and why – redistricting evolved from being free of any interference for politicians to the current era in which the courts supervise redistricting plans in order to uphold equal representation as much as possible. Section 1.3 will focus on the current debate regarding gerrymandering. Although redistricting is a necessity following every Census year, this can’t be said about gerrymandering too; opinions on the positive and/or negative impact that gerrymanders have still vary, therefore the various arguments in favor of gerrymandering and those opposing it will be addressed in this part. The first chapter will conclude by focusing on a specific type of gerrymandering in section 1.4 – prison-based gerrymandering to be precise. Although prison-based gerrymanders have little to no impact on national elections such as those of House representatives – due to the large districts that elect those representatives and the small impact a few thousand prisoners have on the composition of these districts – they can have an enormous impact on local districts and counties, and on philosophical questions about equality. In this part I will explain what prison-based gerrymandering is exactly, what its implications are for counties in which prisons are located and for the counties that supply most of the inmates to these correctional facilities, and will conclude by addressing the racial element that is at large with these prison-based gerrymanders. This will serve as a bridge to chapter 2, which will feature a case study on prison-based gerrymandering in North Carolina and its impact at both the county level as well as the Congressional level. 13. Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy (Ann Arbor 2013) I, 16.. 8.

(10) 1.1: The various types of gerrymanders Article 1, Section 2, Clause 3 of the U.S. Constitution requires that: ‘Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers’ and that this “actual Enumeration” shall be made ‘every subsequent Term of ten Years’.. 14. This decennial headcount of American residents, known as the U.S. Census, forms the foundation for the reapportionment of U.S. Congressional seats among the states, based on increases and decreases in residents. States that have seen an increase in their population might gain seats in the House of Representatives, states that have seen a decrease in their population might possibly lose seats.15 Naturally states that have gained a Congressional seat will have to create an additional Congressional voting district, whereas states that have lost a Congressional seat will naturally lose a Congressional voting district. However, to ensure that all voting districts are roughly the same size – and therefore the votes of the residents in those districts have more or less the same weight – redistricting is necessary in general in the wake of a Census year; even if the total population of a state would remain relatively stable, there could have still been significant shifts in population within the state from district to district or county to county, theoretically speaking. Therefore not all redistricting is considered gerrymandering.16 The American Heritage Dictionary of the English Language defines gerrymandering as the act of ‘dividing a geographic area into voting district so as to give unfair advantage to one party in elections’.17 Redistricting plans are in the hands of the state legislators and requires the approval or veto of the governor; the ideal scenario for a successful gerrymander is therefore when one party controls both the state legislature and governorship.18 And once in control, the party in control could maintain their dominance quite effectively by carving out future redistricting plans in a way that it would not return any seats to their opponents.19 Gerrymandering therefore presents those who control it a great opportunity to shape political outcomes, at that moment and in the future. 20. 14. U.S. Constitution Art.1, S.2, C.3. J. Gerald Hebert & Marina K. Jenkins, “The Need for State Redistricting Reform to Rein in Partisan Gerrymandering”, Yale Law & Policy Review 29:543 (2011) 543. 16 Samuel Issacharoff, “Gerrymandering and Political Cartels”, Harvard Law Review 116:2 (2002) 602. 17 Dictionary in: Jonathan K. Hodge, Emily Marshall and Geoff Patterson, “Gerrymandering and Convexity”, The College Mathematics Journal 41:4 (2010) 312. 18 Hebert & Jenkins, “The Need for State Redistricting Reform”, 544. + Kenneth W. Shotts, “The Effect of Majority-Minority Mandates on Partisan Gerrymandering”, American Journal of Political Science 45:1 (2001) 123. 19 Hodge et al, “Gerrymandering and Convexity”, 312. 20 Adam B. Cox & Richard T. Holden, “Reconsidering Racial and Partisan Gerrymandering”, The University of Chicago Law Review 78 (2011) 557. 15. 9.

(11) President Barack Obama even wrote that ‘these days, almost every congressional district is drawn by the ruling party with computer-driven precision to ensure that a clear majority of Democrats or Republicans reside within its borders. Indeed, it’s not a stretch to say that most voters no longer choose their representatives; instead, representatives choose their voters’. 21 Figure 1 illustrates the potential impact of a gerrymander.. Figure 1: gerrymandering example.. 22. This example shows a fictitious map of a state – which holds five Congressional seats – in which the center is dominated by Democrats, and the outskirts by Republicans. The total ratio of voters within this state is 13:12 in favor of the Democrats, which under normal – non-gerrymandered circumstances – would most likely give the Democratic Party the win in this state. The illustration on the left displays a scenario in which there would be no Congressional districts; here the Democratic Party would win the entire state by a 13 to 12 margin, therefore handing them all the Congressional seats available in this state. At large elections – without voting districts – are not a possibility anymore, this example however is there to show that districting itself is not necessarily bad. Better yet, while Democrats outnumber Republicans 13 to 12 in this fictitious state it would be a highly unfair and inaccurate representation if the Democrats would obtain all the Congressional seats and the Republicans would obtain none. The illustration in the middle shows the same fictitious state, but then with geographically similar voting districts. In this situation the Democrats would win three voting districts, while the Republicans would win two; both parties would be represented in the House of Representatives on behalf of this state, with a minor advantage to the Democrats – just like they have a minor overweight on a statewide level.23 The true, potential, impact of gerrymandering is shown in the 21. Hodge et al, “Gerrymandering and Convexity”, 312. Own calculations. 23 Although the 3:2 ratio does not fully represent the statewide 13:12 ratio, this is the “most fair” representation possible in this example. Any other way of splitting up the five Congressional seats would result in a bigger deviation from the statewide ratio of Democrats:Republicans. 22. 10.

(12) illustration on the right; by drawing the district lines in such a way that many Democratic votes go to waste the Republican Party could actually end up winning four out of five voting districts. In this scenario the Republicans would be the successful ones in elections, sending four representatives to the U.S. Congress in comparison to one Democratic representative, even though the Republican Party is in fact the minority party in this state. This specific strategy is known as “packing”; the party in control of the gerrymander concentrates as many of their opponent’s voters in as few “unwinnable” districts as possible.24 Although this – or these – district(s) will surely be lost, it will also waste many of the opponent’s votes since all votes within that – or those – district(s) over the minimum amount of votes to win are over-abundant.25 Take for instance a hypothetical scenario of a state with four voting districts, each comprising of 100.000 residents and a total of 200.000 residents that vote Republican and 200.000 that vote Democrat. If a Republican gerrymander would pack 100.000 Democratic votes in one district that would already waste 49.999 of the total number of Democratic votes – since each district only requires 50.001 out of 100.000 votes to win. By spreading out the remaining Democratic votes amongst the three remaining districts – 100.000 / 3 would come down to approximately 33.333 Democratic votes per district – the Democrats would lose all other three districts; after all, the 33.333 votes per district would not be enough to reach the minimum of 50.001 votes to win. The result would be that in a state that is completely balanced between Democrats and Republicans as far as popular vote, the Republicans would end up with three Congressional seats versus one Democratic Congressional seat by wasting a large amount of the Democratic popular vote in one voting district. A real life example of successful packing can be found in Michigan where, in the wake of the 2000 Census, a Republican redistricting plan packed the Democrats in five out of fifteen districts, while making the other ten districts “safe districts” for the Republican Party. The redistricting plan was drawn in such a way that the Republican Party would only require 47% of the statewide vote for the majority of the Congressional seats, whereas the Democratic Party would require 58% of the statewide vote for the same result. All because of how the Democrats were packed together, and thus many Democratic votes were “wasted”.26 One group that is hit by packing strategies in particular is minority voters; either through (affirmative action) gerrymandering or even majority-minority mandates, minority voters are often packed into majority-minority districts.27 Majority-minority mandates are federally imposed 24. John N. Friedman & Richard T. Holden, “Optimal Gerrymandering: Sometimes Pack, But Never Crack”, American Economic Review 98:1 (2008) 113-114. 25 Cox & Holden, “Reconsidering Racial and Partisan Gerrymandering”, 561-562. 26 Matthew J. Streb, Law and Election Politics. The Rules of the Game (Boulder and London, 2005) 164-166. 27 Shotts, “The Effect of Majority-Minority Mandates”, 120-121.. 11.

(13) constraints that require the creation of majority-minority districts – districts in which racial minorities form a majority of the population – following the presumption that this helps the racial minorities in those districts to elect the representative that is most in their interests. Following the commonly acknowledged presumption that racial minorities are overwhelmingly Democratic voters this also means that Democrats will see their constituents being packed in districts, and thus see votes going to waste.28 These majority-minority districts can be found throughout many states; an example of which is the 1st Congressional District in Missouri which includes the St. Louis City and much of northern St. Louis County – including Ferguson.29 A different, potential strategy in gerrymandering – that can be used either opposed to packing or as a complementary strategy to it – is “cracking”; this strategy is also illustrated in the example in Figure 2 alongside the packing strategy. Cracking is when the party in control of redistricting spreads out small majorities of their own voters among remaining districts, giving them a high probability of winning these districts while wasting as little votes as possible, while breaking up the remainder of the opponent’s votes.30 In the example in Figure 2 this strategy is implemented by the Republican Party who, after creating one unwinnable district through packing, create three winnable districts by spreading out their voters among these districts in majority numbers and breaking up the remaining Democrats in minority groups among these districts. One could also think of examples of cracking without packing one’s opponents first: if for instance Republicans would have a relatively safe majority in one district – 65% for instance – and would be a minority in bordering districts by only a margin, they could opt to spread out some of their abundant votes in their “safe” district among the bordering ones in order to win these by small margin rather than losing them by a small margin. The flipside of a strategy like this is that the “safe” district will include a smaller majority than before, and the increased competition in the other districts would only be an absolutely guaranteed success if all voters could be defined as either guaranteed Republican or guaranteed Democrat. In reality however this can’t be said for many voters; although some voters can be qualified as diehard Republicans or Democrats – voters that would nearly certainly never vote for a candidate of the opponent – a great share of the voters show less loyalty to one of the parties, and might be tempted to vote for different parties on different occasions. The closer voters can be found to the middle of the political spectrum – rather than to the far left or the far right of it – the more unpredictable voter behavior will be, therefore making these voters quite a threat to. 28. Cox & Holden, “Reconsidering Racial and Partisan Gerrymandering”, 553. & Shotts, “The Effect of MajorityMinority Mandates”, 120-121. 29 st Missouri’s 1 Congressional District has a total population of 739.775 residents, of whom 414.489 are nonwhite. Source: Census, accessed November 14, 2014, http://www.census.gov/fastfacts/. 30 Cox & Holden, “Reconsidering Racial and Partisan Gerrymandering”, 561-562.. 12.

(14) redistricting plans that are drawn for partisan gain.31 Which leads us to the different types of gerrymandering that are often distinguished: incumbent gerrymandering and partisan gerrymandering. This however does not mean there is no partisan advantage to incumbent gerrymandering at all, the aim of both types of gerrymandering is simply different. Incumbent gerrymandering happens when redistricting plans have an incumbent protection incentive; in other words, districts are drawn in such a way that they will form “safe districts” for the current representatives (of the party in control of the gerrymander) that are up for reelection.32 An alternative type of gerrymandering that can be categorized is partisan gerrymandering, where the partisan incentive prevails. Here the party in control of redistricting tries to maximize the number of seats it wins in future elections, by creating as many districts where it will hold a majority as possible.33 This type of gerrymandering leads to an increase in competitive districts, and the more aggressive the partisan gerrymander the less “safe” it will be for the majority party, which makes sense since the voters that are redistricted to help win over districts currently held by the other party will have to come from somewhere else – most likely districts that are held by the party in control of the redistricting plan.34 Raising the competitiveness of voting districts through partisan gerrymandering aims to work against incumbents – of the other party of course. An example where redistricting was used to weaken the incumbency advantage can be found in Georgia during the 2006 midterms. While Democrats across the nation swept away their Republican opponents, changing a 15-seat disadvantage to a 31-seat advantage over the Republican Party in Congress, there were two Democratic incumbents in Georgia that only got reelected by the slightest margin. 35 Both representatives found themselves representing newly drawn districts, that had changed a great deal from the districts they used to represent and included a higher percentage of white, Republican, voters. Although both representatives managed to get reelected, they accounted for the only two Democratic incumbents that nearly lost during the 2006 midterms, and this was facilitated by the redistricting of Georgia’s Congressional districts.36 While the reelection of both Democratic incumbents, as marginally as it may be, may seem like the impact of a partisan gerrymander on the incumbents of the other party is not that large – after all, the Republicans did not flip these two. 31. Cox & Holden, “Reconsidering Racial and Partisan Gerrymandering”, 565-567. Nolan McCarty, Keith T. Poole and Howard Rosenthal, “Does Gerrymandering Cause Polarization?”, American Journal of Political Science 53:3 (2009) 667. 33 McCarty et al, “Does Gerrymandering Cause Polarization?”, 667. 34 Ibid, 667-668. 35 Jim Marshall (GA 8) and John Barrow (GA 12) secured their Congressional districts only by a 1752 and a 864 vote margin: M.V. Hood III & Seth C. McKee, “Gerrymandering on Georgia’s Mind: the Effects of Redistricting on Vote Choice in the 2006 Midterm Election”, Social Science Quarterly 89:1 (2008) 60-61. 36 Hood III & McKee, “Gerrymandering on Georgia’s Mind”, 61. 32. 13.

(15) districts into Republican districts in 2006 – one can hardly make this statement anymore considering the average incumbency rate in the U.S. momentarily; the average probability of any incumbent getting reelected stands at nearly 95%, while during the four Congressional elections up to 2004 more than 97,9% of the incumbents who ran again got reelected.37 Taking these numbers into consideration, the near losses of both Democratic incumbents - especially against the backdrop of a national resurgence to power by the Democratic Party – go to show the potential impact a partisan gerrymander can have. A third type of gerrymander that could possibly be categorized would be a “bipartisan gerrymander”. This is the term that political scientist Bruce Cain attributed to a redistricting plan in which the two parties come to a negotiated division of power – much like a cartel in the private sector. Bipartisan gerrymandering stays under the radar in most cases however, which, according to Samual Issacharoff, is because ‘the bilateral cartelization of political markets neither tramples individual right to participate in the political process nor disadvantages one political party relative to another’.38 However, if one harks back to the citation of President Barack Obama about representatives choosing their constituents rather than the other way around, that is still applicable to bipartisan gerrymandering as well. 1.2: The historical context If there has been one constant factor in American electoral politics since the founding days of the republic it is that end-oriented manipulation of district lines has been around, and still is.39 The ways by which this end-oriented manipulation has gone about have changed drastically over time however. In the early days from 1789 leading up to the 1840s elections were either held under voting districts, or under the “general ticket” – with the latter being used in more than a quarter of the states during that period. General ticket elections were statewide at-large elections in which all eligible voters were given as many votes as there were Congressional seats to fill, and with all the candidates on one single ballot.40 If for instance a state had four Congressional seats, the four candidates with the most votes would get elected to those seats. As fair as this may sound at first, this also meant that if one party had over 50 percent of the statewide vote it could expect to win all of the Congressional seats – as those voters would presumably use all four of their votes on representatives of their party.41 Where the usage of voting districts often leads to a division of the. 37. John N. Friedman & Richard T. Holden, “The Rising Incumbent Reelection Rate: What’s Gerrymandering Got to Do With It?”, The Journal of Politics 71:2 (2009) 593. 38 Issacharoff, “Gerrymandering and Political Cartels”, 598-600. 39 Ibid, 595. 40 Engstrom, Partisan Gerrymandering and the Construction of American Democracy, 22-23. 41 Ibid, 23.. 14.

(16) available seats, general ticket elections would normally mean all or nothing for participating parties.42 This is illustrated in Figure 2.. Figure 2: General ticket elections versus district elections.. 43. Throughout the nineteenth century politics became less and less based on personal, family, and clan ties, and more on collective behavior; a trend from diversity to uniformity. And with this “quiet revolution” in the development of American politics and electoral laws also came an end to general ticket elections.44 But why did general ticket elections come to an end? Because, referring to its legal nature, during the 1840s Whigs had the means, motive, and opportunity to “kill” the general ticket elections. The means were simple: a bill we now know as the 1842 Apportionment Bill. The motive for the Whigs was that after the 1840 Census it had become clear that among the states that were holding elections under the general ticket the states where Democrats were strong would be gaining seats, whereas the states where Whigs were strong would be losing seats. Elections under voting districts would hand the Whigs the opportunity to win some seats in Democratic states, and minimize their losses; quite an important task since the two-party system had reached full steam and nationwide politics had become the focus point for each party. At this moment Whigs, for the only 42. Between 1800 and 1840 over 95% of the elections held as general ticket elections resulted in all or nothing for the participating parties, whereas a party sweep only occurred on 28% of the elections held under voting districts during that same period. Engstrom, Partisan Gerrymandering and the Construction of American Democracy, 23-24. 43 “General Ticket Elections versus District Elections”, image source: Engstrom, Partisan Gerrymandering and the Construction of American Democracy, 25. 44 Engstrom, Partisan Gerrymandering and the Construction of American Democracy, 16, 42-43.. 15.

(17) time in their history, had control of both Congress and the presidency, giving them the opportunity to put an end to general ticket elections. Which they did; the bill passed the House and, after modifications, the Senate, and required that ‘every state with more than one representative divide its seat allotment into geographically contiguous, single-member districts’.45 Obviously, voting districts are necessary for redistricting, and thus gerrymandering, to take place. The term gerrymandering can be traced back to a description, or depiction for that matter, of a redistricting plan crafted by Massachusetts’ Governor Elbridge Gerry in 1812; though this does not imply that ends-oriented manipulation of redistricting did not occur before this date.46 Elbridge Gerry will always be remembered for the term gerrymandering; a legacy that does not seem to credit him for all of his accomplishments. He signed both the Declaration of Independence and the Articles of Confederation, and served as Vice President until his death under James Madison’s tenure as President.47 Despite all these accomplishments Elbridge Gerry is best remembered for his time as Governor of Massachusetts, during which he oversaw the redrawing of Congressional districts following the 1810 Census. Through end-oriented manipulation of district lines he sought to maximize the partisan advantage of Jeffersonian Democratic Party over the Federalists; a practice which became known as gerrymandering ever since.48 While states are obliged to redistrict every ten years now, in response to the U.S. Census and to within-state mutations, redistricting throughout the nineteenth century was largely unfettered. Reapportionment of Congressional seats could be a reason for states to undergo necessary redistricting, but other than that states were free to choose how often they would redistrict – if they would redistrict at all.49 Famous examples of this are Ohio, who’s legislature redistricted a remarkable six times between 1878 and 1892, and Connecticut, which was at the absolute other end of the spectrum by not redistricting once between 1842 and 1910.50 In 1872 Congress granted those in control of redistricting an even greater amount of freedom; in a provision to the Apportionment Act Congress now allowed states that gained Congressional seats to keep their old districting plan intact and elect any newly acquired seats through statewide, at-large elections. This eventually remained in force until 1967.51 States’ freedom regarding how, when, and how often they chose to redistrict became. 45. Engstrom, Partisan Gerrymandering and the Construction of American Democracy, 43-46. Streb, Law and Election Politics, 155-156. & Engstrom, Partisan Gerrymandering and the Construction of American Democracy, 28. 47 Cal Jillson, American Government. Political Development and Institutional Change (New York and London, 2013) 265. 48 Ibid, 265-266. 49 Engstrom, Partisan Gerrymandering and the Construction of American Democracy, 63-65. 50 Ibid, 69-73. 51 Ibid, 64. 46. 16.

(18) impaired by a series of court cases during the 1960s, which have come to be known as the “Reapportionment Revolution”. By the hands of politicians that chose not to redraw their districts, which – looking at the incredibly high incumbency reelection rates – often resulted in creating safe districts for them, malapportionment and, with it, the dilution of voting power among residents of various districts grew.52 In one of the defining court cases, Wesberry vs. Sanders in 1964, the court found Georgia’s Fifth Congressional district to be unconstitutional on the grounds that its population size was twice, or even three times, the size of the other Georgia districts. This meant votes from those living in Georgia’s Fifth Congressional district had half, or even one-third of, the power that voters from the other districts had.53 Upon this the court determined that, in accordance with the U.S. Constitution, ‘as nearly as is possible one man’s vote in a congressional election is to be worth as much as another’s’.54 The outcome of the 1960s “Reapportionment Revolution” was the one-person, one-vote doctrine, striving for each person’s vote to be weighted equally under both Article 1, Section 2 of the U.S. Constitution and the Fourteenth Amendment.55 One group that is hurt by gerrymandering in particular are racial minorities. Ever since the Fifteenth Amendment was ratified in 1870 it sought to protect minority voters by forbidding states from passing any laws which would deprive a citizen of his vote because of his race. 56 In reality however, African Americans were still deprived of their votes, particularly in the South; literacy tests, understanding of the Constitution, or tests to prove one was of “good character” were no unordinary voting prerequisites here. The Voting Rights Act (VRA) of 1965 was designed to put a stop to these practices, and enfranchise African Americans throughout the country, and in the South in particular.57 The former disenfranchisement of African Americans, and the end the VRA aimed to put to it, helped shaping gerrymandering. The Mississippi Delta region, with the densest concentration of African Americans in the country, used to form one district which was majority black, but controlled by white Mississippians through the disenfranchisement of the black population in that district. With the VRA signed into law a new redistricting plan divided the Delta region among three different districts – running east to west, therefore covering more than just the Delta region – in which none of the districts had an African American voting-age population greater than 44%.58 The original VRA of 1965 was an attempt to expunge racial discrimination from redistricting plans and electoral law, aimed at racial gerrymandering – among other aforementioned practices – that diluted black voting power. The 1982 extension of the VRA however, restored discriminatory 52. Hebert & Jenkins, “The Need for State Redistricting Reform”, 545-546. Ibid. 54 U.S. Constitution in: Hebert & Jenkins, “The Need for State Redistricting Reform”, 545-546. 55 Ibid, 545. & Engstrom, Partisan Gerrymandering and the Construction of American Democracy, 196-197. 56 Issacharoff, “Gerrymandering and Political Cartels”, 607. 57 Streb, Law and Election Politics, 156. 58 Ibid. 53. 17.

(19) result rather than intent as the legal standard for the evaluation of governmental actions – such as redistricting plans.59 As a result, state legislatures took the outcome of the 1982 extension, in combination with several court cases during that time, as means to uplift minority representation through the creation of majority-minority districts.60 With the general requirement of a path wise, geographically connected district, this led to oddly shaped – but “brilliantly” gerrymandered – districts, such as the former North Carolina 12th Congressional district which connected the two major cities of Durham and Charlotte into one single district – even though the cities are more than 150 miles apart. To adhere to the requirement of a geographically connected district, the gerrymander connected the two cities by including stretches of Interstate 85 into the district. 61 Therefore, while it may be true that those in control of modern redistricting plans have technological tools to their disposal which make gerrymandering easier than ever, they also encounter far more legal and political constraints than their nineteenth century counterparts did. With courts overseeing the redistricting process to ensure equal representation as much as possible, gerrymandering might have lost the enormous potential impact it had during the days when federal interference and constraints were yet to be implemented. With opinions on gerrymandering in this current age varying between those who support it, downplay its impact, and oppose it strongly, part 1.3 will shed some light on this current debate regarding gerrymandering. 1.3: Gerrymandering: good or evil Compared to its popular counterpart the academic debate in regard to gerrymandering is not as fierce, dense, and/or focused as one might think, or hope. The quantity of academic work on gerrymandering up until now has been smaller than expected, and gerrymandering remains a fairly underexposed subject within the sphere of political science and/or American studies. Moreover, the debate within academics is not very focused, but is rather split between legally framed scholarly debates – debating the constitutionality of gerrymandering and/or federal intervention – and debates within the frame of political science – many of which are of a more mathematical nature. Among these political/mathematical models the subjects – although related to gerrymandering – vary quite a lot. Kenneth Shotts for instance analyzes the policy effects of racial redistricting (by the means of majority-minority districts) through a game-theory model to disprove the “perverse effects. 59. Richard Forgette & John W. Winkle III, “Partisan Gerrymandering and the Voting Rights Act”, Social Science Quarterly 87:1 (2006) 157-158. 60 Engstrom, Partisan Gerrymandering and the Construction of American Democracy, 197-198. 61 Ibid, 198. & Hodge et al, “Gerrymandering and Convexity”, 314. & Forgette & Winkle III, “Partisan Gerrymandering and the Voting Rights Act”, 158.. 18.

(20) claim” on a policy-level.62 Rather than focusing on election prospective, incumbency rates, or House representation, he focuses on the policy outcomes of majority-minority mandates and claims these mandates move policy outcomes to the left ‘because it forces rightist gerrymanderers to elect liberal minority representation but does not constrain leftist gerrymanderers as they seek leftist representatives’.63 In some of his other work Shotts analyzes the effects of majority-minority mandates on partisan representation, and claims – through mathematical formulas – that majorityminority mandates actually work against Republican representation when Republicans are in control of a gerrymander, and Democratic representation would only take a blow whenever supermajorityminority mandates would be in place.64 John Friedman and Richard Holden have used a gametheoretic model to formulate the optimal gerrymandering strategy (to maximize the number of seats won by the party in control of the gerrymander), and conclude that “cracking”-strategies are actually suboptimal; the optimal strategy – under ideal conditions that is – would require the creation of a district that matches the extreme supporters of both parties, and works towards the middle from thereon.65 The interesting arguments from the debate in current academic work for this research are those that focus on why gerrymandering is a good or bad thing, in particular in relation to minority votes. The first thing that stands out is the relatively large number of scholars that don’t think too highly of gerrymandering as a practice; several deeming it unconstitutional even (Issacharoff, Lee, Balinski).66 Others don’t mention the term unconstitutional, but choose to label gerrymandering as an undemocratic practice for it allows representatives to choose their constituents rather than the other way around (Hebert & Jenkins, Whitman).67 McCarthy, Poole and Rosenthal claim that gerrymandering has favored Republicans and increased their share of the House seats, kills electoral competition, and that – even though gerrymandering doesn’t impact the increasing polarization – something needs to be done against gerrymandering.68 The belief that gerrymandering kills electoral competition is not shared by all scholars. While incumbency rates have definitely increased significantly, not all scholars belief this is due to gerrymandering. Friedman and Holden point out that while it is common among legal scholars and 62. Kenneth W. Shotts, “Gerrymandering, Legislative Composition, and National Policy Outcomes”, American Journal of Political Science 46:2 (2002). 63 Shotts, “Gerrymandering, Legislative Composition, and National Policy Outcomes”, 407. 64 Ibid, 120. Supported by Cox & Holden, “Reconsidering Racial and Partisan Gerrymandering”, 603-604. 65 Friedman & Holden, “Optimal Gerrymandering”, 113-115, 134-135. 66 Issacharoff, “Gerrymandering and Political Cartels”, 601. & Andrew William Lee, “Political Gerrymandering: Outside the Aegis of Equal Protection”, University of Florida Journal of Law and Public Policy 18 (2007) 249, 256-257. & Michel Balinski, “Fair Majority Voting (or How to Eliminate Gerrymandering)”, The American Mathematical Monthly 115:2 (2008) 97-98. 67 Hebert & Jenkins, “The Need for State Redistricting Reform”, 544. & Alex J. Whitman, “Pinpoint Redistricting and the Minimization of Partisan Gerrymandering”, Emory Law Journal 59 (2009-2010) 212-213. 68 McCarty et al, “Does Gerrymandering Cause Polarization?”, 666-667, 678-679.. 19.

(21) public intellectuals to blame the rising incumbency rates on gerrymandering, their research shows that gerrymandering has actually become less incumbent-friendly with time.69 Others take a more moderate standpoint; Engstrom claims that gerrymandering generally speaking is more bark than bite, while Forgette & Winkle III acknowledge the decreasing competition among representatives but ask themselves if that is necessarily a bad thing.70 The solution to the problems that gerrymandering poses – no fair representation, representatives choosing their constituents instead of vice versa – would be to take redistricting away from partisan hands, according to scholars who oppose the current situation.71 Others point to the lack of standard that is currently available for determining the unconstitutionality of a redistricting plan, and argue that such a standard should be created.72 A creative solution comes from Michel Balinski who opts for what he calls “fair majority voting” (FMV). In the FMV-method voters still cast ballots in single-member districts, however the votes go the candidates’ parties. The parties then receives a number of representatives elected based on the statewide number of votes; if for instance Republicans get approximately 40% of the popular vote in a state with five Congressional districts, they will receive two Congressional seats no matter where within the state those votes were casted. Balinski’s list of arguments in favor of this system is elaborate: there would be no more gerrymandering, majority-minority districts can exist without favoring any involved party, no longer will a party that received a smaller portion of the popular vote hold a majority of the representatives, in all probability there will be no more single-party states, no votes will be wasted anymore through “packing” strategies, and the House of Representatives will actually be real miniature of the electorate. The flaw in this system however is that it is possible for the losing candidate in a certain district to become the representative of that district, based on the party’s share of the statewide vote. Since Balinski’s logic behind the FMV-method is that representatives are both representing their party and their state this obviously doesn’t make any sense, since it could easily be argued then that representatives should also represent their district – and how is the loser in a certain district a good representative of that district?73 However, current gerrymandering is also downplayed, defended or even supported by some. Engstrom is very mild in this, but downplays the significance of the impact gerrymandering has. 69. Friedman & Holden, “The Rising Incumbent Reelection Rate”, 593-595. Engstrom, Partisan Gerrymandering and the Construction of American Democracy, 12-14. & Forgette & Winkle III, “Partisan Gerrymandering and the Voting Rights Act”, 171. 71 Issacharoff, “Gerrymandering and Political Cartels”, 647-648. & Hebert & Jenkins, “The Need for State Redistricting Reform”, 551-557. & Charles H. Backstrom & Leonard Robins, “The Supreme Court Prohibits Gerrymandering: A Gain or a Loss for the States?”, The Journal of Federalism 17 (1987) 109. 72 Lee, “Political Gerrymandering: Outside the Aegis of Equal Protection”, 254-256. & Mitchell N. Berman, “Managing Gerrymandering”, Texas Law Review 83 (2004-2005) 853-854. 73 Balinski, “Fair Majority Voting”, 99-103. 70. 20.

(22) nowadays due to legal constraints on gerrymandering and due to the fact that a Republican gerrymander in one state is often cancelled out by a Democratic gerrymander in another.74 Forgette & Winkle III argue that federal intervention would be ‘unnecessary if states are able to establish redistricting principles and processes that assure less party- and incumbent-based redistricting’.75 The strongest support for gerrymandering however comes from Franita Tolson in her article ‘Partisan Gerrymandering as a Safeguard of Federalism’. While Tolson acknowledges that gerrymandering can be used for both good and evil, she urges that it should be supported more. 76 Not only does she argue that the Election Clause doesn’t deem gerrymandering illegal, and provides this the possibility to use all electoral rules in an outcome determinative way, she argues that partisan gerrymandering protects the states from federal overreaching. 77 The increasing polarization in politics and the middecade redistricting will make sure politicians within a party will be involved at every level; the need for reelection makes Congressmen listen more to state and local needs, and gerrymandering creates ideologically cohesive delegations. Therefore Tolson argues that although partisan gerrymandering is not necessarily good; it can be – and should therefore be supported for the value it can have.78 Strong opinions on gerrymandering can also be found in the debate held among authors in popular media – perhaps even easier than among scholars. To examine the “popular” arguments against, and in favor of, gerrymandering one could choose to have a look at commentary magazines. For this thesis five of the most important commentary magazines have been selected – The Atlantic, The Economist, The New Yorker, Newsweek, and Time – and undergone a selection of all their articles focused on gerrymandering since 2010.79 A total of 22 articles was featured within this timeframe, nineteen of which argued against gerrymandering. Table 1 displays a simple overview of the featured articles, a more detailed overview of the content of the articles can be found in Appendix A. The sample size makes it difficult to do a proper quantitative analysis, so instead the articles are examined for the their arguments and table 1 serves simply as an overview of the sources that were used.. 74. Engstrom, Partisan Gerrymandering and the Construction of American Democracy, 12-14. Forgette & Winkle III, “Partisan Gerrymandering and the Voting Rights Act”, 170-171. 76 Franita Tolson, “Partisan Gerrymandering as a Safeguard of Federalism”, Utah Law Review 3 (2010) 861, 864, 908. 77 Tolson, “Partisan Gerrymandering as a Safeguard of Federalism”, 859-860, 877-881. 78 Ibid, 862-864, 891-898. 79 To incorporate only the debate that reflects on the current threats/benefits of gerrymandering – in its current state – I have chosen to only use the articles published since 2010, since articles before 2010 reflect on earlier Census statistics and thus redistricting plans. Additionally two Newsweek articles from the 1990s have been included for two reasons. Firstly because Newsweek did not publish any articles on gerrymandering in the selected timeframe, yet the articles were edited online during the selected timeframe. Secondly because the articles voice their complaints against gerrymandering from an entirely different perspective, which I considered an interesting addition to the debate. 75. 21.

(23) Media source. # of articles. Positive. Neutral. Negative. The Atlantic. 6. -. -. 6. The Economist. 8. -. 1. 7. The New Yorker. 1. -. -. 1. Newsweek. 2 (2). -. -. 2 (2). Time. 5. 1. 1. 3. Total. 22 (2). 1. 2. 19 (2). Table 1: articles about gerrymandering in commentary magazines.. 80. With so many articles on the negative end of the gerrymandering debate we now focus on some of the reasons why these authors argue against gerrymandering – or place it under a negative scope.81 Legal scholar Garrett Epps wrote an article in The Atlantic named ‘Will the Supreme Court Let Arizona Fight Gerrymandering?’ in which he argues that the Courts’ ineffectiveness/refusal to stop gerrymandering does not mean that the people themselves can’t take steps to put an end to partisan redistricting.82 Also, unlike authors McCarty, Poole, and Rosenthal he argues that gerrymandering does indeed cause polarization.83 Interesting are also the opinions on the VRA in The Atlantic: Garance Franke-Ruta argues that while the VRA offered a solution to empowerment of African-Americans halfway through the 20th century, it works against the Democratic party – and in large black voter interests – nowadays. She argues that the VRA – and the creation of majorityminority districts – is one of the reasons that there are now more minority House representatives with less power.84 This is because packing all black votes in majority-minority districts leads the Republican party to throwing these districts away, therefore losing the incentive to compete for the black vote; subsequently losing the need to represent black voter interests. 85 Steven Hill agrees that the VRA hurts Democrats and minorities, calling the current situation a ‘footrace with a 10 yard advantage’ favoring the Republicans.86 His solution would be replacing single seat, winner-takes-it-all districts by multi-seat ballots with proportional representation; also due to the geographic 80. Own calculations. All articles can be found in Appendix A, this here is a selection of arguments deemed most relevant on the basis of their connection to the literature. 82 Garrett Epps, “Will the Supreme Court Let Arizona Fight Gerrymandering?”, The Atlantic, September 15, 2014, accessed December 18, 2014, http://www.theatlantic.com/politics/archive/2014/09/can-the-voterstake-politics-out-of-redistricting/380150/. 83 Ibid. 84 Garance Franke-Ruta, “How Gerrymandering Has Created a Segregated House”, The Atlantic, August 26, 2013, accessed December 18, 2014, http://www.theatlantic.com/politics/archive/2013/08/howgerrymandering-has-created-a-segregated-house/279041/. 85 Ibid. 86 Steven Hill, “How the Voting Rights Act Hurts Democrats and Minorities”, The Atlantic, June 17, 2013, accessed December 18, 2014, http://www.theatlantic.com/politics/archive/2013/06/how-the-voting-rightsact-hurts-democrats-and-minorities/276893/. 81. 22.

(24) overconcentration of Democrats in general.87 The argumentation at Newsweek against the VRA is different to say the least; they compare the VRA to racial gerrymandering, and that it promotes the idea that racial groups are homogeneous – also in their beliefs and voting preferences. This “threatens” a core tenet of the nation according to Newsweek, because ‘the right to vote inheres in individuals and not in groups’.88 Both articles also stress that the VRA means that minorities are ‘entitled to certain results’ and get representation ‘based on the virtue of race’. 89 While sharing criticism towards the VRA, the rhetoric used by Newsweek labels the VRA as favorable towards minorities rather than a limitation to Democratic and minority representation. One would almost assume Newsweek is still living in the 1970s. Solutions to the problems that gerrymandering is held accountable for are also covered; The Economist praises the effort made in California to take redistricting out of the hands of the representatives themselves.90 Instead a, partly lottery-selected, non-partisan commission is responsible for redrawing districts. Californians had hoped this would make elections more competitive again – batting the rising incumbency rate that has been linked to gerrymandering – and it did. Figure 3 shows those results. However, the article does also note that this system does not eradicate all issues related to gerrymandering – it leads to fairer voting influence for constituents still: ‘political extremism has many causes, not just gerrymandering. One only needs to look at the US Senate, whose members are all elected statewide, and therefore not gerrymandered at all, to see that. But at least from now on voters are a bit more likely to feel that they had a genuine choice, and that they deserve what they chose’ .. 91. 87. Hill, “How the Voting Rights Act Hurts Democrats and Minorities”, accessed December 18, 2014, http://www.theatlantic.com/politics/archive/2013/06/how-the-voting-rights-act-hurts-democrats-andminorities/276893/. 88 Unknown author, “Districting by Pigmentation”, Newsweek, July 11, 1993, accessed December 18, 2014, http://www.newsweek.com/districting-pigmentation-194474. & George F. Will, “The Voting Rights Act At 30”, Newsweek, July 9, 1995, accessed December 18, 2014, http://www.newsweek.com/voting-rights-act-30184584. 89 Ibid. 90 Unknown author, “No More Packing or Cracking”, The Economist, June 16, 2011, accessed December 18, 2014, http://www.economist.com/node/18836108. 91 Paul Mitchell, cited in: Unknown author, “No More Packing or Cracking”, accessed December 18, 2014, http://www.economist.com/node/18836108.. 23.

(25) Figure 3: California’s competitive electoral districts.. 92. Also remarkable is Heather Ann Thompson’s criticism of gerrymandering in The Atlantic, for it is aimed at a very specific type of gerrymandering: prison-based gerrymandering. Thompson claims that prison-based gerrymandering has a detrimental influence on the balance of power in the United States; steadily increasing the political power of the overwhelmingly white and Republican rural districts in which prisons can be found while decreasing the political power of those districts which overwhelmingly supply those prisons with inmates.93 Thompson not only notes that prison-based gerrymandering is therefore in conflict with the “one person – one vote” principle, but highlights the racial element involved by claiming that the “War on Crime” and prison-based gerrymandering have been ‘socially devastating and economically destructive’ for particularly ‘those areas of America inhabited by people of color’, and have empowered those that benefit from this carceral state.94 She traces this outcome back to an existing tradition of disenfranchising minorities. Johnson places it in a trajectory that started with the post-Civil War intimidation and legal maneuvers that African Americans faced such as poll taxes or “Grandfather clauses” – which had left only 5% of all African Americans able to vote by the 1940s. Then, she notes, the Voting Rights Act of 1965 was countered by the Law Enforcement Administration Act (LEAA) of the same year; ‘a piece of legislation that, well before crime rates across America hit record highs, created the bureaucracy and provided the funding that would enable a historically and internationally unparalleled war on crime’.95 The war on crime (and subsequently the war on drugs) were far from color blind, Thompson notes, and the damage this did to the political power of areas hit hardest by the war on crime, ironically, lays in what was designed to protect African Americans from disenfranchisement: the 14 th Amendment. Section of the 14th Amendment allowed for the disenfranchisement of citizens that had participated. 92. “California’s Competitive Electoral Districts”, image source: Unknown author, “No More Packing or Cracking”, accessed December 18, 2014, http://www.economist.com/node/18836108. 93 Heather Ann Thompson, “How Prisons Change the Balance of Power in America”, The Atlantic, October 7 2013, accessed December 18, 2014, http://www.theatlantic.com/national/archive/2013/10/how-prisonschange-the-balance-of-power-in-america/280341/. 94 Ibid. 95 Heather Ann Thompson, “How Prisons Change the Balance of Power in America”, accessed December 18, 2014, http://www.theatlantic.com/national/archive/2013/10/how-prisons-change-the-balance-of-power-inamerica/280341/.. 24.

(26) in rebellion or other crime – instigated to prevent those still in rebellion with the Union to have any power in the Southern states – and former Confederates used this almost immediately to charge African Americans with all kinds of new crimes.96 With the war on crime still being far from color blind, this led to the disenfranchisement of many incarcerated citizens of color – all of whom still count towards the Census numbers. The latter is exactly why Thompson argues that prison-based gerrymandering has such a negative effect on the balance of power: most prisons are built in overwhelmingly white, Republican districts which would barely (or not at all) meet federal minimum population requirements if it weren’t for those that are incarcerated. This in turn means that the people that are eligible to vote in these districts wield much more power than those in districts without a prison facility – and those which “supply” most of the prison population. And, as Thompson argues, these voters that benefit from their increased voting power due to prison-based gerrymandering also get to vote about criminal justice issues, therefore sustaining prison-based gerrymandering too.97 1.4: Home is where the heart is Scholarly work has not left the unique branch of prison-based gerrymandering untouched either. Several authors have criticized the practice of prison-based gerrymandering and have called for reforms. Peter Wagner, while dubbing prison-based gerrymandering a ‘historical accident’ rather than a modern tool of evil, urges for reforms to counter the damage done by the practice. 98 The first problem Wagner underlines is that prisoners are counted in the Census as residents, but are not eligible to vote. Moreover, they are counted as residents of the district in which they are incarcerated rather than where they lived before incarceration. This, according to Wagner, leads to the dilution of votes and voting power. He goes on by pointing out that the impact of prison-based gerrymandering is most notably felt at the county or municipal level, due to the relatively small sizes of districts and the large share prisoners can form in these districts if they are all counted in the district where they are incarcerated.99 A perfect example of a case in which the impact of prisonbased gerrymandering can be felt on voting power dilution is the city of Anamosa, Iowa. City Councilman Danny Young was able to obtain the seat with only two votes – his wife and neighbor – due to the incorporation of the Anamosa State Penitentiary in his district; out of the 1379 residents. 96. Heather Ann Thompson, “How Prisons Change the Balance of Power in America”, accessed December 18, 2014, http://www.theatlantic.com/national/archive/2013/10/how-prisons-change-the-balance-of-power-inamerica/280341/. 97 Ibid. 98 Wagner, “Breaking the Census”, 1254-1259. 99 Ibid, 1241-1245.. 25.

(27) counted in the district 1321 were incarcerated – leaving only 58 true residents.100 This left those 58 true residents with as much voting power as approximately 1300 residents in the other city wards.101 It is safe to say that the balance of power was heavily distorted due to the practice of prison-based gerrymandering here. So why does Wagner label it a historical accident? The explanation is that upon the introduction of the census it did not matter where prisoners were counted, because the sole purpose of the census statistics was to calculate the number of representatives each state would get in Congress. The only thing that mattered in these days was the number of residents per state, not the in-state distribution of those residents.102 Dale E. Ho does not comment on prison-based gerrymandering as a historical accident, but rather as a violation of the fundamental principles of equality.103 The first reason here as well is that prison-based gerrymandering distorts political power both by inflating the population numbers in prison districts (and therefore the voting power of the true residents of those districts) and simultaneously decreasing the population numbers in districts that are the actual (previous) home of the incarcerated individuals counted. 104 A second argument against prison-based gerrymandering that can be found across the board of scholarly work is the racial (and therefore perhaps partisan) element involved. This is both true for the imprisonment details itself as for the geographical distribution of those prisoners and its impact on political districts. Racial disparities are no new phenomenon when it comes to the imprisonment of American men; in 1923 African Americans were incarcerated at a rate four times higher than white Americans. By the year 2000 that rate had almost doubled.105 Statistics from 2006-2007 proved that 38.7% of the prison population nationwide was black and 31.4% was Hispanic; three and two times the representation of those respective groups in the U.S. population during that period. 106 The same disparities can be found for the distribution of prisoners. Take the state of New York as an example: while New York State is roughly 68% white, its prison population is 77% minority. However, 98% of prison cells in New York are located in disproportionately white State Senate Districts.107 One of those representatives – Republican state Senator Dave Volker – described part of the problem perfectly when he stated to be glad that these approximately 9000 inmates are not allowed to vote because “they would never vote for him”.108 The larger problem at hand however is 100. Leah Sakala, “Census Bureau Contributes to Prison-based Gerrymandering”, Race, Poverty, and the Environment 18:2 (2011) 39. 101 Sakala, “Census Bureau Contributes”, 39-40. 102 Wagner, “Breaking the Census”, 1242. 103 Ho, “Captive Constituents”, 355-356. 104 Ho, “Captive Constituents”, 391. 105 Wagner, “Breaking the Census”, 1243. 106 Drake, “Locked Up and Counted Out”, 246-47. 107 Ho, “Captive Constituents”, 361. 108 Wagner, “Breaking the Census”, 1244.. 26.

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