On the American Political Problem of Partisan Gerrymandering

Table of Contents

List of References

I. Introduction

II. A Typically American Problem? Origins of Gerrymandering in the United States
1. Setting Constituency Boundaries for Congressional and State Elections
a) Prerequisites of Redistricting
b) The Power of Redistricting
2. First Past the Post – a Factor Favoring Gerrymandering

III. Common Practices of Gerrymandering – “Packing and Cracking”

IV. The Legal Realm of Gerrymandering
1. The Justiciability of Voting
2. Racial Gerrymandering
3. The Struggle of Finding a Legal Standard for Partisan Gerrymandering
a) Nonjusticiability of Partisan Gerrymandering Before Davis v. Bandemer
b) The Two Prong Test Established in Bandemer
c) The Justice’s Continued Search for a Standard in Vieth v. Jubelirer
d) Measurement of Fairness in LULAC v. Perry
e) The Continued Search after Gill v. Whitford and Benisek v. Lamone

V. Suggested Standards and Solutions to Counteract Partisan Gerrymandering in Science and Literature
1. Using Geography
a) The Shortest Split-line Method
b) Measurement of Compactness
c) Geography as an Indicator for a Map’s Unconstitutionality
2. Minimizing or Eliminating Intent to Gerrymander
a) Commissions instead of Politicians
b) Using Big Data – the Right Way
aa) Redistricting through Nonpartisan Computer Technology
bb) Standard of Maximum Neutrality
3. Reviewing Adverse Effects on One Party Through Social Science
a) Simulating Nonpartisan Principle Conforming Districts on the Computer
b) The Symmetry Standard
c) The Efficiency Gap Measurement
4. Conclusion: None of the Suggested Standards will Fix the Problem of Unintentional Gerrymandering Caused by the Urban-Rural Divide

VI. Why only a Standard of Maximum Proportionality can fix Partisan Gerrymandering in the Long Run
1. Reasons for the Decline of Proportional Representation in the American Voting System
2. The Constitutional Requirement of Maximum Proportionality
3. Suggested Proportional Representation Systems
a) Mixed Member Proportional Voting
b) Party List Voting
c) Ranked Choice Voting
4. Proportional Representation in State and Municipal Elections

VII. Conclusion

List of References

Essays and Books

The American Heritage Dictionary of the English Language(5th ed.). Boston:Houghton Mifflin Harcourt. 2014.

Amy, Douglas J. 2000. Behind the Ballot Box: A Citizen's Guide to Voting Systems .

Amy, Douglas J. 2002. Real Choices / New Voices, How Proportional Representation Elections Could Revitalize American Democracy. Columbia University Press.

Barnes, Richard and Justin Solomon. Mar 9, 2018. Gerrymandering and Compactness: Implementation Flexibility and Abuse.

Barrow, John. 2018. A Way out of the Political Thicket: The Simple Solution to Partisan Gerrymandering, 55 Harvard Journal on Legislation 1-21.

Best, Robin E. and Michael D. McDonald. 2015. Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 Election Law Journal 312-330.

Cain, Bruce E. 2012. Redistricting Commissions, A Better Political Buffer?, The Yale Law Journal, Vol. 121, No. 7, 1808-1844.

Chen, Jowei and Jonathan Rodden. 2015. Cutting through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders. Election Law Journal 14(4): 331–345.

Chen, Jowei and Jonathan Rodden. 2013. Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Quarterly Journal Political Science 239-269.

Colton, Robert. 2017. Back to the Drawing Board: Revisiting the Supreme Court’s Stance on Partisan Gerrymandering, 86 Fordham Law Review 1303-1329.

Diller, Paul A. 2016. Reorienting Home Rule: Part 1—The Urban Disadvantage in National and State Lawmaking, 77 Louisiana Law Review 287-360.

Dixon, R. 1968. Democratic Representation: Reapportionment in Law and Politics. Oxford University Press.

Geary, Grant. 2017. Partisan Gerrymandering: Maryland’s Attempt at Reform and Steps Towards Proportional Representation, 86 UMKC Law Review, 443-465.

Gelman,Andrew and Gary King. 1994. A Unified Method of Evaluating Electoral Systems and Redistricting Plans. American Journal of Political Science 38: 514–54.

The Gerrymandering Index – Using geospatial analysis to measure relative compactness of electoral districts, Azavea White Paper, October 2006.

Grofman,Bernard and Gary King. 2008. The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry. Election Law Journal 6: 2–35.

Grofman, Bernard, Lisa Handley, Redistricting in Comparative Perspective, Oxford University Press, 1st edition 2008.

Kolkmann,Michael, Die Wahlen zum US-Kongress 2012: Nichts neues auf Capitol Hill ?, Zeitschrift für Parlamentsfragen, 1/2013, 3-21.

Liu, Yan Y., and Wendy K. Tam Cho. 2016. Toward a Talismanic Redistricting Tool: A Computational Method for Identifying Extreme Redistricting Plans. Election Law Journal 15(4): 351 – 366.

Low-Beer, John R. 1984. The Constitutional Imperative of Proportional Representation, The Yale Law Journal, Vol. 94, No. 1, 163-188.

Matakos, Konstantinos, Orestis Troumpounis and Dimitrios Xefteris. 2016. Electoral Rule Disproportionality and Platform Polarization, American Journal of Political Science, Vol. 60, 1026-1043.

Rodden,Jonathan. 2009. Why did Western Europe Adopt Proportional Representation? A Political Geography Explanation, Stanford University, 1-55.

Stephanopoulos, Nicholas O. and Eric M. McGhee. 2015. Partisan Gerrymandering and the Efficiency Gap. University of Chicago Law Review 82: 831-900.

Statistics of the Presidential and Congressional Election from Official Sources for the Election of November 8, 2016, compiled by the Office of the Clerk Karen L. Haas, Published Feb 22, 2017.

Tufte, Edward R. 1973. The Relationship Between Votes and Seats in Two-Party Systems, 67 American Political Science Review 540-554.

Wang, Samuel S.-H. 2016 . Three Practical Tests for Gerrymandering: Application to Maryland and Wisconsin, Election Law Journal Volume 15, Number 4, 2016, 367-384.

Wright v. Rockefeller and Legislative Gerry-Manders: The Desegregation Decision Plus a Problem of Proof, The Yale Law Journal, 1963, Vol. 72, No. 5, 1041-1061.

Cases and Briefs

Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015).

Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

Baker v. Carr, 369 U.S. 186 (1962).

Benisek v. Lamone, 585 U. S. ____, 138 S. Ct. 50 (2018).

Bethune-Hill v. Virginia State Board of Elections, 137 S. Ct. 788 (2017).

Bush v. Vera, 517 U.S. 952 (1996).

Colegrove v. Green, 328 U.S. 549 (1946).

Davis v. Bandemer, 478 U.S. 109 (1986).

Easley v. Cromartie, 532 U.S. 234 (2001).

Fortson v. Dorsey, 379 U.S. 433 (1965).

Gaffney v. Cummings, 412 U.S. 735 (1973).

Gill v. Whitford, 585 U. S. ____, 137 S. Ct. 2268 (2018).

Gray v. Sanders, 372 U.S. 368 (1963).

LULAC v. Perry, 548 U.S. 399 (2006).

Mahan v. Howell, 410 U.S. 315 (1973).

Miller v. Johnson, 515 U.S. 900 (1995).

Mobile v. Bolden, 446 U.S. 55 (1980).

NAACP v. Alabama, 357 U.S. 449 (1958).

Reynolds v. Sims, 377 U.S. 533, 578 (1964).

Shaw v. Reno, 509 U.S. 630 (1993).

U.S. Term Limits v. Thornton, 514 U.S. 779 (1996).

Vieth v. Jubelirer, 541 U.S. 267 (2004).

Wesberry v. Sanders, 376 U.S. 1 (1964).

White v. Regester, 412 U.S. 755 (1973).

Whitford v. Gill, 218 F.Supp.3d 837 (2016).

Brief for Various States as Amici Curiae in Support of Appellants in Gill v. Whitford, No. 16-1161.

Brief of California Citizens Redistricting and Fair Districts Now, Inc. as Amici Curiae in Support of Appellees in Gill v. Whitford, No. 16-1161, September 5, 2017.

Brief of Gary King et al. as Amicus Curiae in Support of Neither Party in Jackson v. Perry, No. 05-204.

Brief of the League of Women Voters as Amicus Curiae in Support of Appellees in Gill v. Whitford, No. 16-1161, September 5, 2017.

Newspaper Articles

Salam, Reihan and Rob Richie, How to Make Congress Bipartisan, Jul 7, 2017, New York Times.

Rosenberg, Matthew, How Trump Consultants Exploited the Data of Millions, Mar 17, 2018, New York Times.

Rosenberg, Tina, Putting the Voters in Charge of Fair Voting, Jan 23 2018, New York Times.

Partisan Gerrymandering – How to Fix a Typically American Problem

I. Introduction

The right to cast an effective, meaningful vote in fair elections is at the core of every democratic system of government around the world. Even though this right has been embedded in the U.S. Constitution more than 200 years ago, the United States is now struggling more than ever before to provide this exact right to voting citizens.

Partisan gerrymandering – the division of geographic areas into voting districts in a way that gives one party an unfair advantage in elections¹ – increasingly poses a threat to the constitutional integrity of U.S.-American elections.

Recently, the United States Supreme Court once again refused to set out a standard on the constitutionality of partisan gerrymandering in two cases pending before it,² delaying a clear answer to this perennial problem for another few years. This continues to leave lower courts, political scientists and legal scholars second-guessing the Supreme Court’s possible approach in the future. At the same time, redistricting after the 2020 census will leave the United States with unprecedented gerrymandering issues, as party polarization, increasing urban-rural divide, and data exploitation keep diminishing citizens’ rights to “fair and effective representation”³, the original goal that redistricting sought to remedy. Instead, the reality is distorted through practices deemed legitimate, substantially changing U.S. politics, demonstrated by the present overwhelming majority of Republicans in the U.S. House of Representatives which is inconsistent with the actual number of American voters supporting the party.⁴

In response to the urgency of solving the problem of partisan gerrymandering, this paper depicts the origins of gerrymandering, followed by a comparison of suggested standards and solutions which have been proposed in light of recent court decisions, and an analysis of why none of them can satisfactorily solve the problem. Therefore, this body of work proposes a standard of maximum proportionality, which requires a revision of the American voting system. This constitutionally required reform will first, properly address the problems arising through gerrymandering and second, provide for a fair voting system in the long run and is demonstrated to be the only feasible and lasting solution.

II. A Typically American Problem? Origins of Gerrymandering in the United States

Gerrymandering has not always been as prevalent in the American system as it currently is. The term originally goes back to Massachusetts’ governor Elbridge Gerry, who in 1812 became famous for shaping a voting district resembling a salamander in order to give his own party an advantage. The term developed as a portmanteau of the terms “Gerry” and “salamander”⁵ and is defined as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power”⁶. It is also used to describe districts with irregular boundaries due to such practices.⁷

1. Setting Constituency Boundaries for Congressional and State Elections

In the U.S., the idea of redistricting in the individual states goes back to the Constitution of the United States. Therein, it was laid out that the House of Representatives, one of two houses of Congress, was originally intended to assure proportional representation of the States, as opposed to equal representation which can be seen in the U.S. Senate.⁸

a) Prerequisites of Redistricting

To assure such proportional representation, every 10 years, a census of citizenry became required to apportion the number of available seats, currently set at 435,⁹ among the states, often followed by a new assessment of district boundaries to reflect the census results.

For state districts, the U.S. Supreme Court did not set out specific time within which redistricting had to take place but stated that redrawing them less frequently than every ten years “would assuredly be constitutionally suspect”.¹⁰ In a series of landmark cases in the 1960s,¹¹ the Court interpreted Article 1 Section 2 Clause 1 of the Constitution, stating that representatives shall be elected “by the people,” to require that states have equally sized federal districts with roughly the same number of voters in them – a principle known as “one person, one vote”.

In subsequent decisions, the Court added additional districting principles, by which small deviations from equal population can be justified. Such principles are compactness and contiguity.¹² Furthermore, the interest in maintaining the integrity of political subdivisions¹³ and the competitive balance among political parties¹⁴ may be considered.

In regard to state elections, the Court found the redistricting process to be different from federal redistricting by allowing more constitutionally permissible flexibility.¹⁵ According to Reynolds v. Sims, 377 U.S. 533 (1964), state legislative apportionments are generally governed by the Equal Protection Clause of the 14th Amendment and the requirement of equally populated districts and can vary considerably among the individual states.

b) The Power of Redistricting

The power to conduct redistricting differs from state to state, but it is remarkable that the choice to allocate this power belongs to the state legislatures for both federal and state constituency boundaries. Article 1, Section 4 of the U.S. Constitution states that “(t)he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations (…).” (emphasis added). Congress thus only has the power to “make or alter” federal districts initially drawn by the states. An example of a federal procedural rule is 2 U.S.C. § 2 c, which mandates single-member districts for congressional elections.

Currently, 13 out of the 50 states have chosen to install bipartisan or non-partisan commissions for congressional and mostly also for state redistricting. Ten additional states use commissions as advisors or as a backup.¹⁶ Unlike all other states, Iowa has nonpartisan staff determine maps which the state legislature then votes on.¹⁷ In all other states, the state’s legislature sets out new district lines autonomously. As partisan gerrymandering is meant to give one party an advantage over the other, it will naturally occur most frequently in states where the biased legislature is in charge of it. But bipartisan and nonpartisan commissions alike will have difficulties fully avoiding gerrymandering in their redistricting processes.

2. First Past the Post – a Factor Favoring Gerrymandering

When the foundations for electing representatives in the United States were laid out, First Past the Post (hereinafter ‘FPTP’) became the preferred voting method. FPTP, also called “winner takes all”, is a voting system in which a person is elected by attaining more votes than anyone else in the area that they want to represent.¹⁸ In contrast, many other countries, including the majority of western European countries¹⁹ favor a different method of election known as proportional representation, defined as “an electoral system in which the number of seats held by a political group or party in a legislative body is determined by the number of popular votes received.”²⁰

While FPTP has shown to foster less diverse outcomes, proportional representation favors more diverse candidates. While a lack of representational diversity is not a problem in societies with less ethnic and cultural diversity, the U.S. has emerged as a unique melting pot of such with varying political interests. Accordingly, it is not possible to depict this pluralistic society through FPTP. As a result, a continued polarization of the society continues to take place with the political center disappearing and the clash between the two major parties’ views expanding.²¹

Additionally, election outcomes are increasingly predetermined before taking place with so-called safe seats, eliminating electoral competition. As the New York Times reported, in 2016, “98% of House incumbents were re- elected, and 402 of 435 races were won by more than 10 percent.”²²

All these factors contribute to gerrymandering, especially given the power of states’ legislatures to redistrict, which is often directed by underlying partisan interests. In a comparison of redistricting between 60 countries, only one other country allows its legislature to determine voting district boundaries for majoritarian districts.²³ This shows that gerrymandering is a typically American problem entrenched in its current voting and redistricting system.

III. Common Practices of Gerrymandering – “Packing and Cracking”

Now that the origins of Gerrymandering have been carved out of the structural foundations of the United States system, the next question arising is how Gerrymandering is conducted. Gerrymandering operates through the use of “packing” and “cracking”. Packing refers to putting a lot of voters voting for the other party in one district, whereas cracking means splitting opposing voters up in order to prevent them from gaining a majority in any district. Packing and cracking work best if combined.

Abbildung in dieser Leseprobe nicht enthalten

The image above shows a hypothetical example of packing Democratic voters in district 6 and cracking these voters in districts 1 to 5. Because of the way the districts are drawn, the Republican Party gains 5 out of 6 available seats, despite the fact that there is an equal number of voters for each party, fifteen apiece. In other words, the Republican party gets 83.3% of the available seats with 50% of votes because of the way the districts were drawn.²⁴ It is notable that this outcome could have resulted by coincidental as well as by intentional districting, and no “bizarre shapes” are required to produce this result, all of which makes gerrymandering incredibly difficult to classify and distinguish from normal redistricting. It has accordingly been said that “all districting is gerrymandering.”²⁵

IV. The Legal Realm of Gerrymandering

1. The Justiciability of Voting

When Mr. Gerry first used his redistricting power to favor his own party, he could be very sure that it would work, as for many years, courts took the standpoint that voting was a matter they should better not interfere with, refusing to enter into the “political thicket”²⁶ of Congress and thereby dismissing claims. It wasn’t until the beginning of the 1960s until the highest American court granted federal courts jurisdiction to hear constitutional challenges to redistricting plans,²⁷ realizing the importance of judicial oversight on the matter. The decision was followed by a series of cases espousing the principle of “one person, one vote”.²⁸

In 1964, the same year as the one person, one vote principle and the resulting requirement that districts must have an equal number of voters in them entered into public discourse, the U.S. Supreme Court started to address racial gerrymandering.

2. Racial Gerrymandering

Entering unknown territory, the Court was at first very careful to provide guidelines for proving racial gerrymandering,²⁹ making it difficult to pursue such claims.

Racial gerrymandering is governed by the Voting Rights Act of 1965, enacted at the height of the civil rights movement to prevent the discrimination of minorities through voting and to enforce their constitutional rights.³⁰ Under § 2 of the Act, and the standards set out in Thornburg v. Gingles, 478 U.S. 30 (1986), citizens were given the right to a majority-minority district, so to a district in which a majority of voters belonged to a minority group, under certain circumstances.

Shaw v. Reno, 509 U.S. 630 (1993), Miller v. Johnson, 515 U.S. 900 (1995) and Bush v. Vera, 517 U.S. 952 (1996) established a strict scrutiny test for racial gerrymandering claims. According to these cases, actions under § 2 VRA must satisfy a compelling government interest and be narrowly tailored to achieve that goal.³¹ Protecting minority voting power was found to be a compelling government interest under the test,³² but the court nevertheless determined that redistricting in Reno was unconstitutional racial gerrymandering because it “was so extremely irregular on its face that it could rationally be viewed only as effort to segregate races for purposes of voting, without regard to traditional districting principles and without sufficiently compelling justification.”³³ In more general terms, the Court determined that race must not be the “overriding, predominant force”³⁴ behind redistricting.

Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) confirmed the rather procedural requirement of standing that recently caused the Court to reject the partisan gerrymandering claim in Gill v. Whitford – gerrymandering claims must be brought by proving an injury on a district by district basis, and not by challenging the state map as a whole.

3. The Struggle of Finding a Legal Standard for Partisan Gerrymandering

a) Nonjusticiability of Partisan Gerrymandering Before Davis v. Bandemer

The reason why the U.S. Supreme Court decided against declaring extreme partisan gerrymandering unconstitutional in Davis v. Bandemer, 478 U.S. 109 (1986) and Vieth v. Jubelirer, 541 U.S. 267 (2004) is understandable in a way: the court simply could not agree on a standard detecting such. The first difficult question the Supreme Court had to agree on was the one of justiciability. Before Davis, the court did not accept partisan gerrymandering claims out of fear that it might “become bogged down in a vast, intractable apportionment slough”.³⁵ In other words, it did not want to interfere with an issue so deeply intertwined with politics. In Bandemer, the Supreme Court for the first time expressly held political gerrymandering claims to be justiciable under the 14th Amendment’s Equal Protection Clause.³⁶ Even though the Court did not find this specific instance of redistricting to be unconstitutional, it set out a two-prong test for political gerrymandering claims. The two prongs are a good foundation for establishing a claim, but unfortunately the burden of proof was impossible to fulfill, which is why no plan was ever struck down based on Bandemer until the test was abandoned after Jubelirer.

b) The Two Prong Test Established in Bandemer

According to the majority in Bandemer, a successful gerrymandering claim requires “a showing of discriminatory intent”³⁷ as well as proof that the electoral system “will consistently degrade a voter's or a group of voters' influence on the political process as a whole”.³⁸ In other words, the discriminatory effect must be the very reason behind which the plan was drawn. Even though the test is no longer applied, referring to discriminatory intent and discriminatory effect remain a persuasive basis when dealing with political gerrymanders.

c) The Justice’s Continued Search for a Standard in Vieth v. Jubelirer

In 2004, almost 20 years later, the search for a standard took a completely new turn in Jubelirer. While the outcome of the case did not bring any changes – once again, the Court declined to strike down the plan in question – the case would have been the end of partisan gerrymandering challenges had it not been for Justice Kennedy. While four of the five justices in the majority declared that they did not believe a standard for proving the unconstitutionality of a politically gerrymandered district existed nor would ever exist (in effect rendering gerrymandering a nonjusticiable political question³⁹ ), Justice Kennedy concurred in the judgment, stating that in his belief partisan gerrymandering could be justiciable. While the majority agreed that the Bandemer’s standard “has proved unmanageable in application”,⁴⁰ Justice Kennedy suggested a test under the 1st Amendment and its Freedom of Association established in NAACP v. Alabama, 357 U.S. 449 (1958). According to Kennedy, the main difference between racial and political gerrymandering claims is that while racial claims are decided by sorting permissible from impermissible districting classifications and controlling which have been applied in the case in question, political gerrymandering addresses the more abstract principle of fairness in representation of voters.⁴¹ As a result, Justice Kennedy made the continued search for a discernible standard possible.

d) Measurement of Fairness in LULAC v. Perry

In LULAC v. Perry, 548 U.S. 399 (2006), effort was made to find a reliable measurement of fairness which can be applied to partisan gerrymanders. The case was concerned with the redrawing of districts in the middle of two censuses, thereby replacing a court ordered plan with one decided by the legislature. The Supreme Court held that the sole reason that this plan was drawn with political intent to advantage one political party was not sufficient as long as no “burden, as measured by a reliable standard, on the complainants’ representational rights”⁴² could be shown.

In other words, precedent was set that the mere fact that redistricting is done with partisan intent is not enough in order for it to be unconstitutional.⁴³ Nevertheless, the majority in Perry took on an interesting concept – the one of symmetry of votes – out of a brief by Gary King and others.⁴⁴ While the court notes that this standard alone is not enough to compensate for the missing fairness standard, it also concludes that it could potentially serve as a useful tool in districting planning and litigation, rendering it the closest to an actual standard announced by the court ever since.⁴⁵ This statement therefore took the search for a standard one step further in the direction of symmetry of votes.

e) The Continued Search after Gill v. Whitford and Benisek v. Lamone

In June 2018, the U.S. Supreme Court once again decided to postpone a clear decision on partisan gerrymandering claims to another day by turning down the two cases before it because of procedural issues.

Gill v. Whitford, 585 U. S. ____, 137 S. Ct. 2268 (2018) was concerned with the 2011 state assembly map of Wisconsin which was drawn by Republicans in a fashion favoring their own party. By the way the districts were drawn, the Republican Party was able to assure 63 out of 99 available seats, so more than two thirds, with only 52 % of the overall statewide vote.

The Wisconsin District Court found that the map had been unconstitutionally gerrymandered, applying a measure of partisan symmetry called the “efficiency gap”.⁴⁶ The court reasoned that the unconstitutionality resulted from violations of the 1st Amendment right to political assembly and freedom of speech and the Equal Protection Clause of the 14th Amendment. In order to determine whether a redistricting map unconstitutionally discriminated against voters, the court established a three-pronged test, requiring (1) intent to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) a resulting discriminatory effect, and (3) lack of justification on other, legitimate legislative grounds.⁴⁷

[...]

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¹ "gerrymander".The American Heritage Dictionary of the English Language(5th ed.). Boston: Houghton Mifflin Harcourt. 2014.

² Gill v. Whitford, 585 U. S. ____, 137 S. Ct. 2268 (2018); Benisek v. Lamone, 585 U. S. ____, 138 S. Ct. 50 (2018).

³ Reynolds v. Sims, 377 U.S. 533, 578 (1964).

⁴ Statistics of the Presidential and Congressional Election from Official Sources for the Election of November 8, 2016, compiled by the Office of the Clerk Karen L. Haas, Published Feb 22, 2017.

⁵ The map was first referred to as a “Gerry-Mander” in the Boston Weekly Messenger.

⁶ Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 135 S. Ct. 2652, 2658 (2015).

⁷ Supra note 2.

⁸ This division of powers in Congress goes back to the Connecticut Compromise, which tried to preserve both small and big states’ powers in Congress.

⁹ The number was set through the Apportionment Act of 1911.

¹⁰ Reynolds v. Sims , 377 U.S. 533 , 583-83 (1963 ).

¹¹ Gray v. Sanders, 372 U.S. 368 (1963); Wesberry v. Sanders, 376 U.S. 1 (1964); Sims, 377 U.S. 533 (1964).

¹² Shaw v. Reno, 509 U.S. 630, 647 (1993).

¹³ Mahan v. Howell, 410 U.S. 315, 328, (1973).

¹⁴ Gaffney v. Cummings, 412 U.S. 735, 752 (1973).

¹⁵ Howell, 410 U.S at 321.

¹⁶ National Conference of State Legislatures (NCSL). Jan 25, 2018. Redistricting Commissions: State Legislative Plans. Avail. on http://www.ncsl.org/research/redistricting/2009-redistricting-commissions-table.aspx. Retr. May 28, 2018.

¹⁷ “Redistricting in Iowa”. Iowa Legislature. Retr. May 28, 2018.

¹⁸ Definition of “first-past-the-post” from the Online Cambridge Advanced Learner's Dictionary & Thesaurus, Cambridge University Press. Retr. Jun 18, 2018.

¹⁹ Rodden, Jonathan. 2009. Why did Western Europe Adopt Proportional Representation? A Political Geography Explanation, Stanford University.

²⁰ Merriam-Webster Online Dictionary, Definition of “Proportional Representation”. Retr. Jun 19, 2018.

²¹ Kolkmann, Michael, Die Wahlen zum US-Kongress 2012: Nichts neues auf Capitol Hill?, p. 13; Matakos, Konstantinos, Orestis Troumpounis and Dimitrios Xefteris. 2016. Electoral Rule Disproportionality and Platform Polarization, Am. J.of Pol. Sc., Vol. 60, 1026-1043.

²² Salam, Reihan and Rob Richie, Jul 7, 2017, How to Make Congress Bipartisan. https://www.nytimes.com/2017/07/07/opinion/how-to-make-congress-bipartisan.html. Retr. Jun 19, 2018.

²³ Grofman, Bernard, Lisa Handley, Redistricting in Comparative Perspective, Oxford University Press, 1st edition 2008.

²⁴ Numbers are rounded for simplicity.

²⁵ Dixon, R. 1968. Democratic Representation: Reapportionment in Law and Politics, 462.

²⁶ Colegrove v. Green, 328 U.S. 549, 556 (1946).

²⁷ Baker v. Carr, 369 U.S. 186 (1962).

²⁸ First mentioned in Sanders, 372 U.S. at 382.

²⁹ Wright v. Rockefeller and Legislative Gerry-Manders: The Desegregation Decision Plus a Problem of Proof, The Yale Law Journal, 1963, Vol. 72, No. 5, p. 1042.

³⁰ See Mobile v. Bolden, 446 U.S. 55 (1980).

³¹ Reno, 509 U.S. at 643.

³² Id . at 674.

³³ Id . at 642.

³⁴ Miller v. Johnson, 515 U.S. 900, 909 (1995).

³⁵ Cummings, 412 U.S. at 750.

³⁶ Davis v. Bandemer, 478 U.S. 109, 118 (1986).

³⁷ Id. at 126.

³⁸ Id. at 132.

³⁹ Vieth v. Jubelirer, 541 U.S. 267 (2004).

⁴⁰ Jubelirer, 541 U.S. at 268.

⁴¹ Id . at 269.

⁴² LULAC v. Perry, 548 U.S. 399, 404 (2006).

⁴³ Id. at 483.

⁴⁴ Id . at 419-20; Brief of Gary King et al. as Amicus Curiae in Support of Neither Party in Jackson v. Perry, No. 05-204, 3 – 17.

⁴⁵ See Perry, 548 U.S. at 419 – 20; Wang, Samuel S.-H . 2016. Three Practical Tests for Gerrymandering: Application to Maryland and Wisconsin, El. L. J. Vol. 15, No. 4, 2016, 367 – 70.

⁴⁶ See Stephanopoulos, Nicholas O. and Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, the University of Chicago Law Review Vol. 82:831, 831–900.

⁴⁷ Whitford v. Gill, 218 F.Supp.3d 837 (2016).