1.Jacobellis v. Ohio, 378 U. S. 184, 197 (1964).2.See Shaw v. Reno, 50 - PDF document

1.Jacobellis v. Ohio, 378 U. S. 184, 197 (1964).2.See Shaw v. Reno, 509 U. S. 630, 640 (1993).1 Figure 1.26th Senate DistrictDefining the Gerrymanderby Kent Scheidegger“I can’t define a gerrymander, but I knoWithid that aboutpornography,1 many people have felt this way about gerrymanders. Thiscynical form of political pornography treats people and communities asodities to be carved up at the pleasure of whoever holds thepolitical power to do so. The result is bizarrely drawn legislative districtsthat bear no relation tos. Yet despite the nearly revulsion fone except thepoliticians and their operatives, it has proven remarkably resistant toattempts to eradicate it.A. Background.The oldest form is the partisan gerrymander. Its purpose is to obtain for the party drawingthe lines a larger percentage of the seats in the legislative body than it would have in a districtingplan along community lines. This form goes back to the earliest days of American democracy. Thegerrymander takes its name from a salamander-shaped district drawn in Massachusetts during theadministration of Governor Elbridge Gerry, a signer of the Declaration of Independence. Voters whofavor the party out of power are packed into as small a number of districts as possible. Thosedistricts vote solidly for that party’s candidate, but a larger number of other districts lean toward theparty drawing the lines, although by narrower margins.The second form is the racial gerrymander. In a state where a racial majority votes solidlyagainst any member of the racial minority, the minority voters can be spread among districts to that they cannot elect a candidate by their own votes. Although this form is the mostrepugnant, it is also the least common today. Racial gerrymanderies the Fourteenth and the Voting Rights Act of 1965, and so there are judicial remedies.2 In addition, the of solid voting by racial majorities is no longer true in most of the country. Racial minoritycandidates often win election today.The third form, the kind in nt protectiongerrymander. All or most districts in the plan are deliberately engineered to have a heavypreponderance of one party or the other, making them “safe” for the candidate of that party. Sincets are nearly impossible to defeat in a primary and the general election is a foregoneconclusion, an incumbent has little to fear from any challenger. This type of gerrymander producesa legislature more partisan and less cooperative than would otherwise be elected. When a seat is 3.See Walters, Democrats’ Neat Trick in 1998 May Boomerang Next Time, Sacramento Bee(Dec. 1, 2004).4.478 U. S. 109 (1986).5.158 L. Ed. 2d 546 (2004).6.See Vieth, 158 L. Ed. 2d, at 557, n. 4.2open and the general election is expected to be close, each party has a powerful incentive tominate a candidate who will appeal to independent voters and to moderate voters of the otherparty. When a district is a “lock” for one party, on the other hand, the activists of that party are freeto nominate their most shrill, partisan, and divisive candidate.3Traditionally, the United States Supreme Court considered partisan gerrymandering“nonjusti meaning the courts would not interfere with it. In the 1986 case of Davis v.Bandemer,4 the high court seemingly opened the door to judicial challenges to gerrymandering, butestablished no standards for deciding such a challenge. The succeeding yearrelief for the citizenry. In the most recent case of r,5 the plurality opinion said thatno standards for a court to decide such a question existed, and the quest for them was hopeless. Afifth concurring justice said there were no standards yet, but the quest might not be hopeless. Thefour dissenters said standards could be established, but they had three different opinions as to whatthey were. Attacks on gerrymandering in the federal courts appear to offer extremely remote chancesof relief and high probability of protracted litigation and expense.Unlike the United States Constitution, the California Constitution specifically addresses thequestion of gerrymandering, but only in vague terms. Article XXI, § 1 of the California Constitutionlays down some basic requirements, such as single-member districts and reasonably equalpopulation, and then imposes this requirement: “(e) The geographical integrity of any city, county,or city and co geographical region shall be respected to the extent possible withoutviolating the requirements of any other subdivision of this section.” To say that the Legislature hasignored this requirement would be an understatement. Yet despite the ruthless carving of cities inthe 2001 reapportionment, there has to date been no judicial relief.The answer to gerrymandering is political and not judicial.6 The people in California havethe power to restrain their Legislature through the initiative. Reformers have several times asked thevoters to remove reapportionment from the Legislature and give it toon, but theseproposals have been uniformly defeated. Proposition 119 in 1990 went down by a landslide 36-64.The argument that this task should not be delegated to an unelected commission not responsible tothe people carried the day, notwithstanding the dismal record of the Legislature in carrying out the task. New proposals along the same lines are circulating today, but it would not be wise toplace all the eggs in a basket with such a history. 7.See Wilson v. Eu, 1 Cal. 4th 707 (1992).3An alternative and complementary approach is to define gerrymandering in precise, objective and then simply prohibit it by constitutional amendment. A straightforward prohibition ofbizarre-shaped districts is simple enough for everyone to understand and not subject to any legitimateopposition. If the definition is objective enough, courts will not be involved in subjective politicaljudgments. They will only be called upon to enforce the plain meaning of the law.B. Defining Eccentricity.The defining characteristic of a gerrymander is bizarre shape. If one compares a map ofCalifornias counties with a map of its present legislative districts, it is immediately apparent thatthe districts have much more irregular shapes than the counties. Of course, the districts are required be of equal population while the counties vary widely in population, so some difference is to beexpected. However, if we compare the 2001 reapportionment enacted by the Legislature with the1992 reapportionment decreed by the California Supreme Court, the irregularity of districts in theLegislature’s plan remains obvious. The 1992 court plan was promulgated when the Legislature andthe Governor deadlocked,7 and it is clearly a much superior plan. It provides us with an example ofwhat can be done when partisanship and incumbent protection are not the motives, compared withwhat is done when they are.The eccentricity, or irregularity, of shapes can be defined mathematically. One measure isto take the perimeter, square it, and divide by the area. This ratio is dimensionless. That is, it is the for a given shape regardless of the scale and regardless of the units used to measure it, as longas the units are consistent. That is, if miles are used for perimeter, square miles must be used forarea, or kilometers and square kilometers, etc.A square has a perimeter of four times the length of one side, S. The perimeter squared is16S2. The area is simply S2. The eccentricity factor, as defined above, is:E = P2/A = 16S2/S2 = 16E is 16 for of any size, measured in any units. The least eccentric figure is a The E for any circle is (2BR)2/BR2 = 4B, which grows with irregular shape the square with a long, skinny rectangle, 1 x 5 units.The perimeter is 12, the area is 5, and the E factor is 144/5, or 28.8.C. Application to the Real World.Real-world legislative districts are, of course, more complex than these simple shapes, and eccentther, however, varies dramatically betweengerrymandered and nongerrymandered apportionment plans. To demonstrate the difference and todetermine a practical limit, we downloaded the 1992 and 2001 apportionment maps from the statereapportionment database, http://swdb.berkeley.edu/index.html. 8.The boundary runs along the 120 degree meridian from 42 degrees north to 39 degreessouth, a distance of 180 geographic miles = 207.5 statute miles. It does not matter if thisscaling is not exact, since the units drop out in calculating the eccentricity factor.9.A major factor in the Supreme Court’s apportionment was compliance with the VotingRights Act of 1965, 42 U. S. C. § 1973. See Wilson v. Eu, 1 Cal. 4th, at 714-717.4These maps were used to calculate eccentricity factors for the 40 Senate districts in both the1992 and 2001 reapportioments with the following procedure. The downloaded ArcView shapefileswere converted to AutoCAD 2000 DWG files with the Arcv2CAD program. The resulting files haddiffering scales. For convenience, both maps were scaled to miles by measuring the distance fromthe northeast corner of the state to the corner in Lake Tahoe, and scaling the map so that this distancewas 207.5 drawing units.8The AutoCAD program was then used to create “regions” from the district boundaries in thefile. AutoCAD then computes perimeter and area for the regions. For this purpose, the portion ofany district including a Pacific island was disregarded, and only the mainland portion of the districtwas used. The perimeters and areas were then entered in a spreadsheet, which calculated theeccentricity factor for each district and statistics of eccentricity factors for the plan as a whole. SeeTable 1.The difference in the two plans is immediately apparent from these numbers. The averagedistrict in the Legislature’s 2001 plan is more eccentric than maximum in the Supreme Court’s 1992plan. The 1992 plan has a large cluster of districts in the 40s and 50s, and a fairly small spread ofeccentricities, as indicated by the standard deviation of 12.0. The 2001 plan has a wide range ofeccentricities, as indicated by its large standard deviation of 33.0. The range goes all the way up to174.8 for the exceptionally bizarre 26th Senate District, shown in Figure 1.The results are also illustrated with a histogram in Figure 2. The eccentricity factor is plottedon horizontal axis. The height of each bar represents the number of districts in a range of teneccentricity factors. For example, the seven-unit high bars at 60 for both plans means that both planshave seven districts with eccentricity factors between 60 and 69.9. The dotted bars are the 1992plan, and the cross-hatched bars are the 2001 plan. The higher eccentricities and broader range forthe 2001 plan are apparent. D. Realistic Limits.The numbers from the 1992 plencumbering good faith efforts to meet federal requirements or the present requirements of theCalifornia Constitution. If we take the numbers from the 1992 plan and add some padding to allowfor changing conditions, we can define a real constraint that will inhibit illegitimate gerrymandering allowing all legitimate objectives to be met. For example, we could write into the CaliforniaConstitution that a valid apportionment plan must have a mean eccentricity factor of districts lessthan 60, and it must not have any district with an eccentricity factor over 85. 10.Id., at 719.5These restrictions would not completely eliminate the black art of gerrymandering. Withinthe constraints, there will s room to maneuver. There will be far less than at present,however, and the extreme distortions of the political process will be curbed.Courts have long indicated that districts should be drawn with “compactness.”10 We nowhave a precise, mathematical definition of what that means. If we write this definition into theCalifornia Constitution, we will have more competitive races, more modandidates, lesspartisan division, and more cooperation. 6Table 1. California State Senate Districts19922001DistrictAreaPerimeterE factorAreaPerimeterE factor131956131053.722266125570.7216809103864.112058956.875.931519237.837.21307263.353.0428376120150.82397398040.15213729540.72028533140.16333.2139.558.4239.7131.572.171296237.643.6777.916233.78357.5125.243.8459.4147.447.39244.893.235.5411.1169.369.710617.9166.344.8506.2143.440.611963.9236.958.2836.9286.998.41211813740.546.44958600.772.813127.188.261.2779.6252.681.81410879808.460.1108511086108.7158277570.139.37695808.284.91610406794.560.76381841.3110.91737964136148.83946555.678.2189591562.533.0393271544.460.619126022540.23521487.467.520110.67652.297.479.464.721403175.776.6141141.1141.22256.551.346.660.1102.5174.823500.5132.134.9580.4213.578.524125.497.475.7119.2131.1144.2258373.665.3174.7154.7137.02667.652.640.965.695137.627254.7117.954.6123.789.164.228194.8104.456.0158.6122.494.529640.4229.382.1755.5302.6121.230113.585.664.6111.2107.6104.1316026573.654.61221.5370.5112.432341.2134.553.0229.814895.333560.8138.634.3430171.868.63495.361.639.876.178.681.235353116.738.6329.613656.1363291.9452.162.13223430.557.53714437876.353.24906615.977.338823.5197.447.3771.2173.639.139428.213240.7290.9154.281.740217.411358.77142672.863.4Mean51.385.0Median51.577.8Std Dev12.033.0Min33.033.7Max82.1174.8 E factor = Perimeter squared / Area Calculated numbers are shown to one decimal place 7