University of the District of Columbia Law Review


Robert Fisch


In January of 2011, the infamous “Snake by the Lake” was born.2 Stretching along the southern coast of Lake Erie, the 9th Congressional District of Ohio covers a 120 mile-long thin strip of the state.3 The district is less than one mile wide at certain locations and is considered contiguous, a state constitutional requirement for congressional districts,4 only because the “snake” passes through portions of Lake Erie.5 In creating the district, the Ohio Republican Party, the majority party in the state legislature at the time, drew the boundaries with the intent to limit the voting power of the Democrats in the congressional districts in northern Ohio, a process also known as political gerrymandering.6 As a result, in the 2012 election, Republicans won twelve of Ohio’s sixteen congressional districts, including wins in two congressional districts previously represented by Democrats.7 Unfortunately, the actions in Ohio reflect a common practice in the United States. As U.S. Supreme Court Justice Antonin Scalia commented, “[p]olitical gerrymanders are not new to the American scene.”8 In fact, allegations of gerrymandering have occurred as far back in American history as the 18th century.9 However, due to the U.S. Supreme Court’s recent ruling in Rucho v. Common Cause, cases involving political gerrymandering can no longer be challenged in federal courts. In Rucho, the Supreme Court held that matters concerning political gerrymandering are outside of the scope of federal courts.10 While the Court may have limited the federal judiciary’s ability to resolve political gerrymandering issues, it also provided three suggestions for alternative means to resolve political gerrymandering: (1) the passage of a congressional bill that would grant federal courts the ability to hear gerrymandering claims; (2) state constitutional amendments prohibiting gerrymandering; and (3) independent commissions charged with drawing congressional district maps.11 Of these alternatives, the use of independent commissions is the only viable option. The process by which such commissions are created, how members are selected, and the process followed by these commissions to conduct redistricting makes the use of state redistricting commissions to advise state legislatures the most realistic way to conduct redistricting in the U.S. without gerrymandering taking place. The first section of this paper will present an overview of gerrymandering and the techniques states use when conducting it. The second section will look at the U.S. Supreme Court case Rucho v. Common Cause and the Court’s analysis. The third section will analyze three solutions to redistricting problems suggested by the U.S. Supreme Court. Finally, this paper will look at elements of independent commissions that can create an ideal solution to the problem of political gerrymandering in the U.S.

First Page