Posted by David O'brien on October 02, 2017
The upcoming Supreme Court case Gill v. Whitford has brought public attention to the threat partisan gerrymandering poses to our democracy.
Although modern technology and an era of hardened partisanship has made gerrymandering particularly ubiquitous and malignant, the problem is as old as American democracy itself. American courts and legislatures have been struggling to address it for nearly as long, as we found when looking into the congressional record from 1901, when Congress took action to try to stop gerrymandering.
The Constitution requires Congress to set the size of the House of Representatives and determine how many seats each state will have after every census. As time went on, Congress began including rules for drawing districts in these regular apportionments. The Apportionment Act of 1842 required that representatives be elected from single-winner districts and introduced the requirement that districts be “contiguous.” In the Apportionment Act of 1901, Congress added the requirement that districts be “compact.”
The legislative history of the Apportionment Act of 1901 reveals the compactness requirement was introduced for reasons that remain relevant over a century later: Congress wanted to prevent states from drawing districts that would unfairly favor one political party.
When the new requirement was first discussed on the floor, Representative Theodore Kluttz of North Carolina explained: “The language has heretofore been ‘contiguous.’ When the committee discussed it, I will say that the word ‘compact’ was added at the suggestion of one of the members, the object of it being to prevent shoe-string districts[.]” 34 CONG. REC. 606 (1901) (statement of Rep. Theodore F. Kluttz).
Representative William Ryan of New York elaborated:
[“Compactness”] was put in in order to give the Democrats of the North a fair opportunity to be returned. The legislatures in the Northern States are all Republican and if they were permitted to shoestring the districts, it would be impossible for the few Democrats from the Northern you have to get here. It was put in by the Democrats on the committee, with the consent of the chairman of the committee, to show that he intended to be fair with the Northern Democrats.
34 CONG. REC. 606 (1901) (statement of Rep. William H. Ryan).
At the time, Democrats still dominated the South, while the Northern and Western states were largely Republican. Both the House and the Senate were under Republican control. This concern for fairness to political rivals seems strange in today’s polarized environment, but the debate shows that partisan gerrymandering was a subject of concern even back then.
The discussion over the compactness requirement also revealed many of the practical issues about preventing partisan gerrymandering that continue to trouble reformers. Representative John Rixey of Virginia demanded to know “who is to be the judge as to when districts are sufficiently compact?” and predicted it would “give rise to contests[.]” 34 CONG. REC. 605-06 (1901) (statement of Rep. John F. Rixey).
Congress ultimately adopted the compactness requirement and the act’s “compact and contiguous” language remained in almost all subsequent apportionment acts. Even today, “compactness” is considered one of the traditional redistricting criteria almost everywhere in the United States.
But the issues raised in 1901 -- questions about when exactly a district plan becomes unacceptable and who gets to make that determination, regional and partisan concerns about losing seats, worries that the redistricting process could bogged-down in disputes over legality -- will all sound familiar to anyone who has followed the Gill case.
Despite the efforts of Congress in 1901, partisan gerrymandering has only grown more entrenched and sophisticated. Its persistence over a century later demands a new approach. It’s time to adopt a new method of electing our representatives. Partisan legislators should not be the ones responsible for drawing legislative districts. We should not have to choose our representatives through a process so vulnerable to partisan gerrymandering. Now is the time for fair representation.