Up by Their Own Bootstraps: State Legislative Attempts to Bypass the Governor During Redistricting

Abstract

In the United States, the practice of line-drawing for partisan political advantage took on the name of “gerrymandering” in 1812. Since then, gerrymandering has been constrained by federal requirements that Congressional districts have equal populations, and the Voting Rights Act of 1965, which addressed racial districting. The increasing sophistication of technology has allowed redistricters in many states to comply with these federal requirements, as well as traditional state requirements that districts be compact, contiguous and avoid crossing political boundaries, while still creating extreme partisan gerrymanders. It is possible for one-fourth to one-third of the representation of a legislative chamber or delegation to be determined by who holds the redistricting pen, irrespective of the will of the voters. Currently, in twelve states, the legislature is controlled by one of the two major political parties, while the governor is a member of the other party. This split-party control includes Michigan, New Hampshire, North Carolina, Pennsylvania and Wisconsin. In this article, we review Federal and state court decisions regarding past attempts by legislators of one party to circumvent their opponents by excluding them from the redistricting process. These efforts have largely failed, however, usually due to judicial intervention. Even when courts have taken an expanded view of a state legislature’s redistricting authority, no court has ever allowed a legislature to bypass the governor when required by that state’s constitution.