For whatever it is worth, this is my bachelor’s thesis, University of Oslo, spring 2013.
The illustrations are from a classroom presentation of the first draft.
They were not in the essay.
Running blind with scissors – congressional redistricting in Iowa
«Although touted as a tested example of neutral redistricting, Iowa’s redistricting mechanism has failed to attract many converts. «
Redistricting is the process of dividing territories into electoral districts. In USA, this process is politics as dirty as it gets, an entirely tactical game often void of ideology. According to the former lieutenant governor of Texas, Bob Bullock it was «the bitterest, cruelest, most partisan, most divisive issue» he had been through. The stakes are high. Redrawing boundaries between electoral districts may shift the balance of power for the next ten years on county- , state- or federal level, so it is no wonder that they often end up in yearlong courtroom battles. In Iowa they don’t. In Iowa the electoral mapmakers are blind to the voters’ political affiliations and ethnicity. Iowa is repeatedly referred to as an example for other states. This leads to the question «Why?» — which itself begs the immediate follow-up-question «Why has no other state chosen to follow Iowa’s example?»
To answer this we will have to look at the purpose of redistricting, its intended and actual effects, its legal basis and the challenges that any redistricting meets. We will see how gerrymanderers use redistricting for partisan gain and how, while Iowa avoids this, others both accept gerrymandering, excel in it and repeatedly end up in court because of it. Redistricting is used on all levels of American democratic institutions, and partisan gerrymandering is very much a factor in local and state legislature. The scope and focus of this thesis will, however, for all practical purposes be restricted to congressional redistricting only, more specific the electoral districts for the House of Representatives.
Every congressional district appoints one representative to the House of Representatives. These districts shall be as equal in population as feasible; securing that any representative represents approximately the same number of people.The US Constitution (Article I, section II) requires that a census shall be made every ten years. The apportionment of seats in the House is based on these census numbers, which means that a state every ten years may gain or lose House seats according to its relative population growth or decline. Even if the number of representatives stays the same, a redistricting is required because of shifts in population patterns within the states. The actual process of redistricting is left to the states,and in the tradition of American federalism, every state has its own, unique way of doing it. It is, however, «a patchwork of state laws and constitutional provisions, overlaid with federal guidelines that apply to all electoral districts.» The process of redistricting is state business, but the outcome of this process may be overturned by the US Supreme Court if it is deemed as a violation of a citizen’s voting rights. For some states, the process even requires preclearance by the Department of Justice if they have a proven history of racial discrimination through their electoral processes.
In some states, like Texas – which is one of the states on the Department of Justice’s watchlist, the legislature takes care of the redistricting entirely. Increasingly, states leave preliminary work to a commission, partisan or bipartisan. What sets Iowa apart from others is that their commission, the Legal Services Agency, is non-political, and it handles all redistricting, for all state-level elections according to statutory guidelines. Politicians play no other part in this process than approving or rejecting the maps provided by the bureau according to the guidelines once laid down by the State Assembly. Since the bureau was established and given its operational guidelines after the 1980 census, politicians have approved every map brought before them, even if some of those maps have robbed numerous incumbents of their constituencies.
The one, non-negotiable, irrevocable demand states must abide to, is «one citizen, one vote». Ideally, all congressional districts should have equal populations, and any representative in the House should represents the same amount of voters as another, thereby securing voters equal political clout. The same paragraph of the Constitution that mandate the decennial census set this number to 30,000. Until 1913 this was possible; but then the House saw the need to limit itself to 435 representatives for reasons of practicality. Since then the U.S. population has grown, and a House representative today represents in average almost 700.000 citizens. The State of Wyoming counts less than 600.000 citizens, so unless congressional districts are allowed to cross state boundaries or the House of Representatives is expanded, some inequality is inherent in the system.
Within each state such inequality is unacceptable. Until the issue was brought before the federal Supreme Court in 1961 this was no big deal. In Baker v. Carr (1962) the plaintiff from Tennessee argued that his district had ten times more voters than other districts, effectively disenfranchising him. At the same time, voters in some districts in California had 400 times the representation of Los Angeles’ voters. Only New Hampshire and Wisconsin had a somewhat equal representation in both congressional chambers. In Baker v. Carr a narrow Supreme Court majority ruled – after almost a year of deliberation – that redistricting, until then widely held to be entirely within the political/legislative domain, could be challenged in court. Two years later Supreme Court heard a case from Georgia, where congressional district populations varied from 823,680 to 272,154, a disparity ratio of 823,680/272,154 = 3.027. In simpler terms: «One citizen one vote, another citizen three votes». Analyses have later shown that this difference in voter clout was reflected in a distinct difference in distribution of public funds. In Baker v. Carr, Supreme Court Justice Hugo Black was plainspoken: «While it may not be possible to draw congressional districts with mathematical precision, there is no excuse for ignoring our Constitution’s plain objective of making equal representation of equal numbers of people the fundamental goal for the House of Representatives.» This moved the goalpost for redistricters, and in 1983 US Supreme Court rejected New Jersey congressional districts with a disparity ratio of only 1.007, arguing that it «was not a good-faith effort to achieve population equality.»
The Voting Rights Act of 1965 complicated the drawing of boundary lines. It was introduced to secure the voting rights of African Americans, who were subject to blatant discrimination through voting regulations, especially in the South. Section 2 of the Voting Right Act prohibited any discriminatory practice or procedure. This was in 1982 amended to include any practice or procedure with discriminatory result, regardless of intention. Section 5 of the Voting Rights Act requires an additional pre-clearance by the Department of Justice of any redistricting in areas with a history of discriminatory practices. Section 5 has this year been brought before the Supreme Court by the state of Alabama, which actually has a higher African American voter turnout than Massachusetts, which is not on the list. Alabama and others argue that the discriminatory practices are history and that the pre-clearance is an unjust and inhibiting procedure.
Under section 2, redistricting that splits «a district in which members of a minority group constitute a majority»is prohibited. Both the Department of Justice and US Supreme Court have accepted some oddly shaped districts that earned lasting nicknames to meet these demands. The Voting Rights Act is very open to interpretation, and several cases have ended up in Supreme Court, whose rulings at times have been written by the narrowest majority possible. For some states, like Texas, legal costs have been millions of dollars, just in attorneys’ fees.
The concept of gerrymandering demands an explanation. Gerrymandering is no longer an issue in Iowa, but common tools for and effects from gerrymandering are. In short, gerrymandering is the process of deliberately constructing oddly shaped districts to gain a political advantage. This reshaping leads to one or two of three possible outcomes: packing, cracking and kidnapping. “Packing” is stretching a district to pack the opponent’s supporters in one district which healready has a majority, to lessen his chances in other districts. “Cracking” is the opposite, breaking a concentration of opponents into several districts where they have little chance of winning. This was a popular move by racist legislators in the South in the 50s. Finally, there is “kidnapping,” where the district boundaries are redrawn so that an incumbent suddenly lives outside his district or is placed in the same district as opponents from his own party. The phenomenon «gerrymandering» is a portmanteau of «Gerry» and «salamander.» Gerry was Elbridge Thomas Gerry, the fifth American vice president. In 1812, as governor of Massachusetts, he reluctantly signed into law a partisan redistricting in which a district with some fantasy and malice on the viewer’s side could be said to resemble a salamander. A cartoonist redrew the district to resemble it even more, and the new creature was awarded the nickname «The gerrymander.» It stuck. The term «gerrymandering» is now commonly used to describe all biased redistricting.
Adding computers to this process has driven gerrymandering to a new level, creating spiky, contorted creatures like the New York City’s “Bullwinkle district,” a polygon with 813 sides demanding 217 lines to describe it when signed into law by the governor in 1992. Mark Monmonier named such creatures “bushmanders” because they were approved by George HW Bush’ Department of Justice to ensure that minority-majorities were assured representation as demanded by section 2 of the Voting Rights Act. They also had a side-effect: Ethnic minority votes are “overwhelmingly Democratic,” and this process thereby packed Democrat votes and lessened their chances in neighboring districts. Another ill-reputed district is the North Carolina 12th, which in the 1990s resembled somebody’s lower intestines. Actually it followed Interstate 85 most of the way. One person branded it «an ideal case for the Supreme Court.» He was proved right. The district repeatedly appeared before the nation’s highest court. North Carolina legislator Mickey Michaux exaggerated only slightly when he claimed that if you drove down the Interstate 85 «with both doors open, you’d kill most of the people in the district.»
Several cases have been brought before the federal Supreme Court, but the justices have always refused to give general and specific guidelines for what makes a redistricting illegal. In Bush v. Vera (1996) three districts were declared illegal, while three seemingly equally splattered-bug-on-windscreen-shaped districts were not. In other words, it is not the shape, but the historical or present intent or effect behind the shape that is important. Every case is judged on its own merit. Shapes are not criteria for court intervention, but they may serve as indicators for or symptoms of unlawful underlying causes and motives.
Both Democrats and Republicans gerrymander if given the opportunity, but at present, Republicans seem to benefit most from gerrymandering on the national level. Before the 2012 election they controlled redistricting for 202 house districts, while Democrats controlled 47. One result of this is, according to the organization FairVote, that Democrats will need 56% of the votes in 2014 to gain a majority. One cannot, however, attribute this bias entirely to conscious political acts. A recent detailed study of simulated redistricting alternatives for Florida in the 2000 presidential election reveals a significant Republican bias, an «unintentional gerrymandering» due to the fact that Democrats tend to cluster in «large cities and smaller industrial agglomerations», thereby reducing the chances for even chances of winning.Numerous simulations indicate that the most evenly distributed political fraction through sheer geometry gains an advantage. This Democrat clustering pattern is recognizable also outside Florida, and it is not unlikely that the observed effect can be recognized, too.
The 1962 Supreme Court decision prompted redistricting in all states, Iowa included, and the Iowa general assembly adopted a plan for redistricting featuring an overall range ratio of 1.14, only to see the Iowa Supreme Court strike it down and impose its own redistricting plan with voters so evenly distributed that four decimals was needed to describe the disparity. In 1980 the task of redistricting in Iowa was delegated to the Legislative Services Bureau, which later was incorporated into the Legislative Services Agency, a nonpolitical agency providing legal services for the legislation between its decennial redistricting chores. This is unique, as no other state attempts to conduct all redistricting through a nonpolitical body.
The Legislative Agency operates under strict statutory guidelines, set by the State Assembly. The agency is not allowed to consider any other demographics than density, placement and county borders. It is statutory required to be blind towards other data. The agency draws several maps (106 in 1990). Only one is presented to the public, first to a series of public hearings, then to the state legislature, which the legislature is not allowed to append or change beyond correcting factual errors. It can, however, discard the map, in which case the agency presents a new map in line with the legislature’s arguments.
This has never happened. Neither has any redistricting plan since 1970 ended up in the higher courts. If the legislature should reject the second map, it will get a third map, which it may amend or modify, increasing the risk of interference from the courts or the governor.
The agency is obligated to prepare a map with congressional districts as equal in size as possible. It must, however, respect the political subdivisions of the state, so that counties are not split between districts. A district must be contiguous, and it must be compact, in other words resembling a perfect circle or square as reasonably possible. All these are considerations taken by other states, but Iowa’s statutes make it clear that «districts shall not be drawn to favor any political party, an incumbent legislator or member of Congress, or any other person or group, or for the purpose of augmenting or diluting the voting strength of a language or racial minority group.»
One measure of Iowa’s success is its legal expenses. According to Alexis de Tocqueville, «scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.» One single case, Bush v. Vera (1996), cost Texas more than 1.6 million dollars in legal bills. In several states there still are redistricting cases before the courts on all levels, from state to US Supreme Court. Since Iowa took politics out of redistricting, no case has been brought before the courts to contest district boundaries.
Since Iowa’s success is apparent, one may assume that there are strong and obvious reasons for not adopting Iowa’s strategy. The most obvious reason may be that Iowa really is not like any other state (which may also be said about any other state). Iowa senator Michael Gronstal (D) claims that his home state is and has always been «the purplest of purple states» with an almost equal mix of Democrat blue and Republican red. Numbers prove him right. Iowa has been a swing state for decades in presidential elections, and on all other levels the outcome of elections are rarely given. Nevertheless, Iowa is more homogenous that most other states, especially when it comes to race. It is not just a purple state, but also remarkably white. Of its 3 million citizens 93% are white. The national average is 78.1%. Mississippi counts 60% whites, while the gerrymandering showcase North Carolina counts 72%. The immediate consequence is that Iowa is not affected by the Voting Rights Act, nor will it be if the present statutes for redistricting survive. There simply is no minority significant enough to constitute a majority in any of its four remaining congressional districts. Therefore no ethnic group can reasonably claim disenfranchisement or an effectively discriminatory practice. Nor can any creative mapmakers draw intricate shapes under the guise of accommodating the demands presented by the Voting Rights Act.
Although the process in Iowa is neutral, notes Kubin, the outcome of this process is not. Deliberate packing and cracking may not be as widespread as in legislatively drawn districts, but through sheer chance and coincidence, kidnapping undeniably is. When the most recent Iowa redistricting plan was presented by the Des Moines Register, Iowa’s largest newspaper ran this headline: «Republicans in Pottawattamie County are frustrated», in part because an experienced candidate ended up just two blocks outside the district he was expected to run in. The redistricting was seen as favorable to the Democrats, even if one incumbent, Dave Loebsack, would have to move a few miles to stay in touch with his old constituents. He would be «happy to move». Only one of four congressional districts were seen as truly competitive, giving Democrats the two safe seats and one probable, leaving one safe seat for the Republicans. Still, the redistricting map went through the state legislature unchallenged. Incumbent senator Michael Gronstal (D) saw his district’s boundaries go unchanged: «Either party has the capacity to get the majority,» he still claimed. In the redistricting two of five incumbents, one from each party, were removed from their districts. Both relocated and followed their old voters to their respective new districts. Both won, proving that Iowa still is a truly purple state with only four remaining House representatives. The one seat seen as a probable seat for Democrats went to a «kidnapped» and relocated Republican incumbent. In the same redistricting process, boundaries for electoral districts for state legislature were redrawn, and 41 of 150 legislators would have to move or face another incumbent in the coming election.
Two other explanations to why Iowa’s approach to redistricting has not caught on may be found in a study made in Ohio and California by Caroline Tolbert, Daniel A. Smith and John C. Green who looked into the mass support of a change in redistricting guidelines and came up with a seemingly obvious conclusion: «Political elites are generally reluctant to alter the status quo unless a change will benefit them.» In other states incumbents may have some trust in their fellows in state legislature, who will fight for their reelection, either through their majority or some deal while in minority. Their reluctance is understandable when facing the Iowa redistricting, as it adds randomness to the process, which leaves incumbents in the dark when it comes to their prospects for reelection.
It must also be noted that gerrymandering in itself is not illegal when used in non-racial context. This was confirmed by US Supreme Court in 1999, when seemingly racially motivated gerrymandering was found constitutional since in the case before the court the borders between races corresponded to border between Democrats and Republicans. Nor is gerrymandering necessarily damaging to the democratic process. Any redistricting may be said to be undemocratic, as it takes accountability out of the electoral process by sometimes removing incumbents from the judgment of their voters. There are, however, studies showing that gerrymandering produces a more democratic landscape than one without any redistricting. In 1994 Andrew Gelman and Gary King looked into the effects of redistricting and concluded that «on average, redistricting (either partisan or bipartisan) actually reduces the degree of bias as compared to no redistricting.».They quoted Bruce Cain, who argued that «even the most egregious partisan gerrymanders do not ‘lock-in’ one party’s control over the state: Districting only affects control over a few sets, and it can be rendered meaningless by large state or national shifts in voting patterns.»
A belief in that actors in any political/legislative process will act or even should act according to neutral or bipartisan standards may lack empirical foundation, and the Tolbert/Smith/Green-study in Ohio and California shows that the also voters act strategically, rather than according to own beliefs of right and wrong. California has long been a battleground for gerrymanderers. In 1984 Democrats won 28 of the state’s 45 House seats with only 47 percent of the statewide vote through gerrymandering. Republicans were during the 1990 redistricting finally able to undo that redistricting plan, and in 1994 Democrats had 52 percent of the votes, but won “only” 27 of 52 seats. In 2005 California voted over a new election law that would restrict gerrymandering. Republican governor Arnold Schwarzenegger was a vocal proponent: “Here is a telling statistic: One hundred-fifty-three of California’s congressional and legislative seats were up in the last election, and not one, I repeat, not one, changed parties. What kind of democracy is that?” The «Governator» had broad public support. Polls showed a majority in favor of election reform, both in California and Ohio, but voters in both states turned down propositions for amending the redistricting process. Tolbert, Smith and Green suggest «that many citizens who voted against the measures – even if they supported redistricting reform in the principle – did so because they were representational winners under the status quo, thus acting strategically.»
Since then, following public votes in 2008 and 2011, California has appointed a 14-member bipartisan commision with 5 Democrats, 5 Republicans and 4 tie-breaking party-neutral members who oversee the drawing of electoral maps.
There has been a movement towards a less partisan redistricting process in several states, but Iowa is still the only state to attempt to conduct all redistricting via a politically neutral body. What are the alternatives to this? Every state has its own method or procedure. No two states have identical processes, but there are three main methods for redistricting – and then there is Iowa’s method. The first option is that state legislature decides who gets to draw the lines, as they do in Texas. The state legislature may decide to draw the lines themselves, thereby effectively leaving the job in the hands of the majority party’s leaders, who «typically hold their meetings behind closed doors, minimizing interference in accomplishing their partisan purpose. » The effects of this is as expected. In a comparative analysis Michael McDonald showed that «when one party controlled the 2001-02 redistricting process, either because it controlled the legislative process or a partisan commission, that party usually produced a redistricting plan favoring itself. In only seven of 44 cases did a party that controlled redistricting not produce a partisan gerrymander. »
The second option is the state legislature choosing to appoint a commission to do the ground work and then leave it to the state assembly or the governor to pick the one they prefer. This commission may be partisan, filled with members of the majority party, or it may be bipartisan.
In Texas Law Review, Jeffrey C. Kubin in 1997 pleads the case for the third option, bipartisan commissions with a tie-breaking chairperson. Many states use a commission at some stage of congressional or state legislative redistricting,but only a few use commissions for the entire congressional redistricting. The rest reserve this privilege for the state legislation. Kubin argues that bipartisan commissions make financial sense, since such commissions have a litigation rate far below states with legislation-run redistricting. Kubin presents three arguments for tie-breaking bipartisan commissions: First, that «no party can run roughshod over the other.» Second, that their structure ensures that no process ends in a deadlock, and third, that an independent chairperson will encourage both parties to negotiate in good faith.
Kubin shows no faith in the press or the public when it comes to policing the redistricting process. It is too complicated, technical and «proven to be a difficult street to patrol,» he argues. He calls it » the ultimate game of insider politics. There are no weighty legislative issues, but only the issue of politics itself. » His faith in legislature is even less: «In conclusion, when legislatures engage in redistricting, it is often a game without rules. The process becomes an unregulated, mad rush to failure.» He has the numbers to back it: During the 1980 round of redistricting, state legislatures had a one-in-three chance of failing to pass a redistricting plan capable of surviving federal court scrutiny.
In his extensively quoted book «Bushmanders and Bullwinkles» Mark Monmonier concurs with Kubin. He recommends that legislators set the redistricting criteria, but leave the task of redrawing boundaries to mapmakers committed to following those criteria «consciously and fairly». Monmonier also stresses the lowered risk of litigation as an argument for commissions. «Although it is impossible to eliminate politics altogether, removing the remap from conventional legislative channels not only promotes balance and fairness but avoids the delays or outrageous solutions that invite judicial intervention.» He characterizes, having studied commissions in Canada and Great Britain, the goal of neutrality as «elusive.» This quest for neutrality is seen as futile also by Kubin, but both emphasize that an arm-length approach is more in line with the «Madisonian approach, » a.k.a. the American system of checks and balances, than what is the norm in most states. External commissions «offer redistricting combatants a procedural mechanism that approximates a ‘fair fight’,» argues Kubin.
A simple, straightforward conclusion is hard to come by, simply because the matter is not straightforward. There is no guarantee that a solution which works in Iowa will work in Texas or North Carolina, and acknowledging this is one of the cornerstones of federalism. The American federal experiment allows and encourages single states to test unique legislative approaches without letting their successes or failures obligate others. Iowa’s non-political redistricting process may be more neutral and true to some Montesquieuan or Madisonian ideal of checks and balances. It may be more fiscally sound, but the short term political gains and incentives of moving in Iowa’s direction are meager for those in power. It may be doing the right ting, but those doing it run the risk of losing power. One may wish that politics was about doing the right thing, but politics is the means to an end, and for both politicians and voters there are plenty of ends important enough to justify living with an imperfect process. On top of that, there are several studies indicating that the better process not necessarily produces better results. All things considered, this makes the Iowa model hard to sell.
Abramowitz, Alan, Alexander, Brad and Gunning, Matthew, «Don’t Blame Redistricting for Uncompetitive Elections.» PS: Political Science and Politics Vol. 39 No. 1 (Jan., 2006): 87-90
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Peters, Jeremy W, «Redistricting Likely to Hamper Democratic Efforts in 2014, Study Finds..» New York Times April 26th2013 <http://thecaucus.blogs.nytimes.com/2013/04/26/redistricting-likely-to-hamper-democratic-efforts-in-2014-study-finds/> accessed May 18th 2013
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Tocqueville, Alexis de, Democracy in America, vol. 1, Knopf Vintage Books, New York, 1954
United States Census Bureau, <http://quickfacts.census.gov/qfd/states/19000.html>
 Jeffrey C. Kubin, The Case for Redistricting Commissions, Texas Law Review 75, 1997, p. 848
 Kubin, p. 858
 A House representative in average represents almost 700.000 citizens
 US Constitution, article 1, section 4: «The 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, except as to the Place of Chusing Senators.»
 Michael McDonald, A Comparative Analysis of Redistricting Institutions in the United States, p. 375
 Ansolabhere, Gerber and Snyder, Equal Votes, Equal Money: Court-Ordered Redistricting and Public Expenditures in the American States, p. 767
 Ansolabhere, Gerber and Snyder, p. 775
 Mark Monmonier, Bushmanders & Bullwinkles : How Politicians Manipulate Electronic Maps and Census Data to Win Elections, page 23
 Monmonier, page 24
 Chris McGreal, US Supreme Court leans towards striking part of Voting Rights Act, The Guardian, 2013
 Monmonier, page 4
 This was the 50s, 60s and 70s, and females in the House were never above 4.1 percent.
 Monmonier, p. 4
 McDonald, p. 375
 Jeremy W. Peters, «Redistricting Likely to Hamper Democratic Efforts in 2014, Study Finds» New York Times
 Jowei Chen and Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures
 Ed Cook, Redistricting in Iowa, p. 2
 Kubin, p. 848
 Monmonier, p. 101
 Cook, p. 11
 Alexis de Tocqueville, Democracy in America, p. 209
 Kubin, p. 837
 Des Moines Register, April 11th 2011
 United States Census Bureau, State & County QuickFacts
 Bartlett v. Strickland, US Supreme Court, 2009
 Kubin, p. 848
 Des Moines Register, April 11th 2011
 Caroline Tolbert, Daniel A Smith, John C Green, «Strategic Voting and Legislative Redistricting Reform: District and Statewide Representational Winners and Losers» Political Research Quarterly, p. 92
 US Supreme Court, Hunt v. Cromartie, 526 U.S. 541
 Gelman, Andrew and King, Gary, Enhancing Democracy Through Legislative Redistricting, p. 542
 Gelman and King, p. 543
 Alan Abramowitz, Brad Alexander, Matthew Gunning, «Redistricting for Uncompetitive Elections,» Political Science and Politics, Vol. 39, No. 1, p. 87
 Tolber, Smith and Green, p. 94
 Kubin, p. 848
 McDonald, page 389
 McDonald, page 388
 McDonald, p. 380
 Kubin, p. 840
 Kubin, p. 846
 Kubin, p. 859
 Kubin, p. 855
 Monmonier, p 99
 Monmonier, p. 100
 Kubin, p. 839