WI Law in Action podcastOn the latest episode of the WI Law in Action podcast from the UW Law Library, host Kris Turner interviews UW Law School Associate Professor of Law and Co-Director of the State Democracy Research Initiative, Rob Yablon.  Yablon introduces the concept of “gerrylaundering,” a strategy used by voting district mapmakers to hold on to power by preserving key elements of their existing maps. Yablon newest article, “Gerrylaundering”, was recently published in the NYU Law Review.

Yablon on the difference between gerrymandering and gerrylaundering:

Photo of Professor Rob Yablon
Professor Rob Yablon

When we think of classic gerrymanders, we tend to think of situations when maps are being overtly manipulated….  If you’ve gerrymandered successfully last time around, there’s less need for you to reinvent the wheel when it comes time to redistrict, and so you might be able to achieve your goals simply by perpetuating the status quo. And that’s where the concept of gerrylaundering really came from, the idea that sometimes you can achieve your partisan goals during redistricting, not by overhauling a map, but simply continuing a map that already stacks the deck in your favor….  And so if gerrymandering is about tilting the playing field, gerrylaundering is more about keeping the playing field tilted.

Yablon on the history of gerrymandering:

Gerrymandering has a deep history. Some listeners are probably aware the term dates back to the early 19th century, where there was some redistricting mischief in the state of Massachusetts. In 1812, the legislature there was in the hands of the Democratic-Republican Party and they were concerned that they were on the verge of losing power to the Federalist Party, and so they overhauled the state’s electoral districts in an effort to try to maintain their advantage. And the governor at the time, a guy named Elbridge Gerry, signed off on that new map and some creative newspaper editors noted that one of the new contorted districts resembled a salamander and so they dubbed it the gerrymander and the rest is history. So this has been going on for more than 200 years, but gerrymanders in recent years, they’ve grown more sophisticated and more potent.

Yablon on the techniques that mapmakers use in gerrymandering and gerrylaundering:

When we talk about gerrymandering, you often hear about the techniques of cracking and packing. Map makers will sometimes try to advantage one political party by cracking the voters of the other party between multiple districts so that those voters aren’t sufficiently numerous in any one district to be able to form a majority, so that’s cracking. Or sometimes they may try to pack the other party’s voters, so they jam as many of the other sides voters into one district as they can so those voters then can’t prevail in more districts….

Well, with gerrylaundering, it’s a little bit different because you’re trying to preserve a favorable scheme that already exists. You’re not affirmatively doing new cracking and packing, maybe that cracking and packing was done in the past. Now, because rhymes are apparently helpful in this area of the law, my article refers to the techniques of gerrylaundering as locking and stocking. Locking means that the map makers are trying to lock in the prior district configurations populating those new districts with as many residents of the prior districts as they can given the need to reestablish population equality. Stocking means that they’re trying to stock each of those new districts with one and only one existing office holder, so they’re trying to avoid instances in which incumbents end up in the same new district and then have to face off with each other during the next election.

Yablon on the looking beyond gerrylaundering’s veneer of legitimacy

My view is that the rationales in favor of gerrylaundering are pretty weak. So consider, for example, the argument that preserving old maps can help to ensure stability and respect the existing relationships between representatives and their constituents. Well, stability can have its virtues, I don’t want to deny that. It is true that representatives often will invest in learning about their district, they’ll have knowledge, and that gets disrupted when you redistrict. Similarly, voters may organize on a district level and redistricting can disrupt their organizational efforts. And I really don’t mean to diminish any of that, it’s a reason why we probably wouldn’t want to redistrict after every election, but stability is a value that you try to optimize, not maximize. So it’s not just about stability.

Dynamism is also an important value in a political system. You want to give new voices an opportunity to emerge, you want to give new alliances an opportunity to be created. And so 10 years strikes me as maybe a reasonable balance. You have existing districts that last for 10 years, and then you have an opportunity through redistricting for a fresh start. And the idea of a fresh start I think makes sense, especially given that there are all sorts of other ways that our system advantages incumbents and tends to skew toward entrenchment. And redistricting is a nice occasion actually to introduce a little bit of dynamism and disruption that we might not otherwise have.

Yablon on the implications of gerrylaunering:

One way to think about gerrylaundering is that in many instances, it is a way to extend the lifespan of a gerrymander. So one implication of having gerrylaundering is that you will just get more of the same. We are seeing this right now in Wisconsin. There was a fairly aggressive gerrymander after the 2010 census in the state and this time around the redistricting process went to the courts because we had had divided government and there was very active litigation over what kind of a new map the court, the Wisconsin Supreme Court should adopt. And the Wisconsin Supreme Court decided that it would essentially adopt a gerrylaundered map. It accepted the arguments from the legislature that the court should choose a map that minimized changes from the existing gerrymandered map. And so for upcoming elections in Wisconsin, we can expect to see the same kinds of partisan balances or imbalances that we’ve been seeing for the last decade.

To read more of  Professor Yablon’s scholarship, see his profiles on SSRN and the UW Law School Digital Repository.