Democrats can gerrymander too, but should they?

This post was originally published on this site

As a progressive, I hate gerrymandering on principle. The idea of elected officials drawing up legislative boundaries and putting one type of voter on one side of a line and a different type on the other side to benefit particular parties and/or incumbent candidates is antithetical to the notion of government based on the consent of the governed. As the saying goes, voters are supposed to pick their representatives in a democracy, not the other way around.

There are powerful reasons to get rid of gerrymandering, and Democrats in Congress are on record supporting a ban for federal elections. Unfortunately, a couple of senators (you know which two) won’t support the filibuster reform necessary to make it a reality. Furthermore, there’s a powerful argument for Democrats to simply wash their hands of the gerrymandering practice today and refrain from it 100%. But should they?

I abhor war. I hope our country never has to fight another one. What does that have to do with gerrymandering, you ask? Well, if another country’s tanks and planes come pouring across our border, I certainly don’t want my side to stand down. I want them to stand up and defend my community, just as Ukraine’s government and armed forces are doing right now. Then, after the other side has learned it can’t just steamroll its way to conquest, maybe we can talk peace, and maybe, someday, even mutual disarmament. But putting up an active defense has to come first in order to ensure survival. That makes it a moral imperative. Gerrymandering itself does not involve bloodshed, thankfully, but the analogy applies.

This isn’t a fight Democrats can win, unfortunately, by just setting an example and hoping we can win elections on the basis of our ethical superiority. If that was going to work, it’d have done so already given the vastness of Republican gerrymandering in the once-a-decade redistricting process that followed the 2010 census—that was the REDMAP (Redistricting Majority Project) plan, carried out to perfection. Voters in states that have seen the worst gerrymandering by Republicans have not expressed their revulsion by rising up to sweep them out of office in landslides that can overcome unfair district-drawing. I wish that would happen, but it hasn’t.

Democrats have to be able to do two things at the same time: 1) say that we want to ban gerrymandering across the board, and 2) say that we aren’t going to unilaterally disarm before that happens. I’m not arguing that gerrymandering is okay when our side does it, and Nancy Pelosi was right to condemn the practice as “unjust and deeply dangerous” back in 2019. I’m arguing that Democrats gerrymandering is terrible, but not doing it is even more dangerous.

And gerrymandering is terrible, for multiple reasons. The Brennan Center for Justice, a progressive policy institute, explained how gerrymandering works and described its corrosive effects. There are actually different ways to gerrymander. The party with control over drawing districts might choose to “pack” as many voters as possible from the other party into a single district, thus rendering multiple other districts easier to win. Another approach is to “crack” an area with lots of voters from one party into multiple districts so that each one still contains a solid majority from the other party.

Republicans have often engaged in so-called cracking and packing in order to dilute the power of communities of color—most often Black communities, who are most likely to be geographically concentrated for various reasons, including patterns of segregation and redlining. For an example of how the party of Fuck a l’Orange carried this out in three disproportionately African American counties in Ohio—Cuyahoga, Franklin, and Hamilton—check out this analysis (behind a paywall unfortunately). Additionally, Daily Kos’s Rebekah Sager covered this issue in Georgia, while Joan McCarter discussed how it is playing out in Alabama.

Sometimes, Republicans will pack Black voters into a district, virtually ensuring victory for a Black Democratic candidate, because it will reduce the number of Democratic victories in the state by removing those Black voters from surrounding districts. Republicans will tolerate Black faces in the legislature, as long as those faces are in the minority party and can’t pass legislation that, you know, actually helps Black communities.

To be sure, gerrymandering is not a new phenomenon. It goes back over two centuries—it’s named after Massachusetts Gov. Elbridge Gerry, who approved this monstrosity (above) of a district back in 1812. It has, however, become much more sophisticated in recent years. Exponentially so, as per the Brennan Center: “Intric­ate computer algorithms and soph­ist­ic­ated data about voters allow map draw­ers to game redis­trict­ing on a massive scale with surgical preci­sion. Where gerry­man­der­ers once had to pick from a few maps drawn by hand, they now can create and pick from thou­sands of computer-gener­ated maps.”

So gerrymandering is wrong, and it’s only getting worse. How can we get rid of it? Well, the Supreme Court is no help, unfortunately, having decided in Rucho v. Common Cause (2019) that they had no authority to intervene in the drawing of gerrymandered legislative districts by declaring them a violation of citizens’ right to an equal vote. The authority of the Voting Rights Act, which at one time could come into play if redistricting was found to discriminate racially, was gutted in 2013’s Shelby County v. Holder, which rendered it toothless on that front. The only way to get rid of gerrymandering is for those who want to ban it to gain enough power to do so through legislation—even if that means employing that very tactic in order to win such power.

Looking forward, Democrats were predicting that the decennial redistricting process taking place right now, after the 2020 census, would leave them even worse off than they had been. However, so far it’s going better than expected. The Brennan Center summarized the overall situation earlier this year:

Demo­crats have tried to coun­ter­act Repub­lican gerry­man­der­ing with aggress­ive line draw­ing of their own, but the play­ing field is not level. Repub­lic­ans control the draw­ing of 187 congres­sional districts in this redis­trict­ing cycle; Demo­crats just 75. If, in the end, the cycle does not end up a whole­sale disaster for Demo­crats, this will largely be attrib­ut­able to three factors: the unwind­ing of gerry­manders in states like Michigan with reformed processes, court-drawn maps in states where the redis­trict­ing process has dead­locked, and litig­a­tion in states where state courts, unlike their federal coun­ter­parts, will hear partisan gerry­man­der­ing claims.

That still doesn’t mean everything is hunky-dory. But it does show that unless Democrats fight back against extreme Republican gerrymandering, there’s little to no chance of getting a House of Representatives that accurately represents the will of the people—kind of important in a democracy, dont’cha think?

Perhaps the most aggressive Democratic line drawers are in my home state of New York (although Illinois is a close second at this point). Daily Kos’ David Nir provided a detailed breakdown of the changed legislative district lines (the, ahem, amateurs at The New York Times did so as well). Long story short: They gerrymandered the fuck out of them.

New York currently has a House delegation of 19 for Team Blue, and eight for Team TFG. The Empire State is losing a seat (by a schnozz, as they’d have avoided the loss if only 90 more people were counted as New Yorkers in the most recent census). Among the remaining 26, the new maps—passed by the state legislature and signed into law by Gov. Kathy Hochul—would give Democrats a strong chance of picking up three more seats: on Staten Island (NY-11), Long Island (NY-1), and in Central New York (NY-24). Another Republican seat (NY-22), located upstate, would be the one to disappear. The delegation would likely end up 22-4 in favor of the Democrats.

New York has had, since 2014, a bipartisan commission tasked with redrawing the district lines after each census. However, the commission—composed of an equal number of members of both parties—failed to come together around a new map, throwing the process to the state legislature. The aforementioned outcome came as little surprise given that Democrats have control over both houses.

Even less of a surprise was the Republicans squealing like a stuck pig in response. At the New Republic Matt Ford went through the hypocrisy of Republicans complaining about Democratic gerrymandering being unfair, given their previous support not only for what they were doing in red states, but for the tactic in general. He wondered, facetiously, whether the GQP “suddenly had an epiphany about its corrosive, anti-democratic effects on American politics.” Not.

New York Republicans sued to block the new maps. The New York Times explained the grounds on which the suit rests:

Any court case would likely hinge on how judges interpret language included in the same 2014 constitutional amendment that created the defunct redistricting commission and how Democrats actually arrived at their lines. The language has not previously been tested in court and says that districts “shall not be drawn to discourage competition” or boost one party or incumbent candidate over another.

Jeffrey Wice, who serves as a senior fellow at New York Law School’s Census and Redistricting Institute, offered his take as to the likely outcome: “The question is whether the court will reject 50 years of precedent and reject the plan.” However, Wice turned out to be incorrect. In a 4-3 ruling, the New York Court of Appeals on Wednesday upheld a lower court decision that threw out the Democrats’ map for violating the state constitution. In fact, courts have blocked aggressive gerrymanders in a number of states so far this cycle.

Some in the mainstream media—famous for bothsidesing issues left and right (no pun intended)—clutched their pearls and lamented that, heaven forfend, Democrats were actually playing hardball. Pat Kiernan, anchor on local channel NY1’s morning news, intoned solemnly that “Democrats have given up any high ground they had over Republicans on gerrymandering.” He’s talking about the moral high ground. Meanwhile, Republicans are charging ahead trying to claim the physical high ground, from which they can move forward to achieve total victory. Paul Waldman at The Washington Post opined that New York Democrats had acted “ruthlessly.” Unlike Kiernan, Waldman meant it as a compliment.

Most recently, Five Thirty Eight’s tracker finds that Democrats have been able to add seven seats that lean in their direction compared to the 2020 map, while the number of Republican-leaning seats has increased by one; the number of competitive seats has dropped accordingly. These numbers could become more favorable to the Democrats if Florida’s extreme Republican gerrymander—which saw Gov. Ron DeSantis override his own Republican colleagues in the state legislature—gets blocked or altered by state courts there. 

Some states have moved toward truly independent redistricting commissions, the largest of which is California. Other states have different mechanisms that, to some degree, seek to take the process out of the hands of elected officials. In an ideal world, all districts would be drawn without regard to politics, with no party able to gain an advantage. Unfortunately, that’s not the world we live in right now.

Colorado Democratic Party chair Morgan Carroll told Russell Berman of The Atlantic that nonpartisan redistricting commissions are “the right thing to do.” However, it’s not as simple as that, he pointed out: “But as a matter of politics, if across the country every Dem is for independent commissions and every Republican is aggressively gerrymandering maps, then the outcome is still a Republican takeover of the United States of America with a modern Republican Party that is fundamentally authoritarian and antidemocratic. And that’s not good for the country.” Carroll added “If the result is that we have 10 years of Republican majorities under this current party, then I think the institution of Congress is dead.”

Independent commissions are great, and I look forward to the day when every state has a robust one that takes the drawing of districts out of the hands of elected officials. For more on both the strengths and potential pitfalls of independent commissions, please check out this terrific piece from Frances Nguyen at Prism. Overall, as per Nguyen: “advocates believe that public hearings provide the best forum for voters to influence the redistricting process, and commissions provided more direct access than legislatures did this cycle, for the express reason that their design intentionally provides for more public input.”

Let’s be clear: Gerrymandering is not good. It is toxic and encourages more and more extremes—on both sides in theory, although in particular among Republicans in practice—because it eliminates so many competitive districts. Marjorie Taylor Greene befouls the halls of Congress because extreme gerrymandering carried out by Republicans in Georgia enabled someone with her level of wackadoodlery to win a seat. We should absolutely get rid of it at the state and federal level.

There’s only one thing worse than both parties gerrymandering everywhere they can, and that’s when one party gerrymanders and the other doesn’t keep up. That’s what happened in the post-2010 round. At the state level, there are no state legislatures where Democrats used gerrymandering to lock in wide legislative majorities in states where they lost the popular vote, or even where it was closely divided—as Republicans have done recently in Michigan, North Carolina, Pennsylvania, and Wisconsin.

Although it’s not pictured in the graphic above, Wisconsin’s 2018 results represent the starkest example. The Democrats won 53% of the popular vote for state legislative elections, and just over 50% of the gubernatorial vote (and every statewide office), yet Republicans won 63 out of 99 seats in the state legislature. Even though some legislative races were not competitive, in a fair system Democrats should have come in at least within striking distance of a 50-50 legislature.

At the federal level, if only Republican-controlled states gerrymander, Congress will continue to tilt more in that party’s direction (as noted previously, gerrymandering affects state legislative district lines as well, a whole other issue). Don’t forget what North Carolina Republican Rep. David Lewis stated flat out about the district lines he helped draw in his state: “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

The Brennan Center estimates that gerrymandering netted Republicans an extra 16-17 seats in the current U.S. House—whose legislative districts have been in effect since 2012. That harms democracy even more than when both parties gerrymander aggressively because voters’ voices are reduced only on one side, and in particular among voters from disadvantaged groups. This is why what Democrats in New York and elsewhere are doing is necessary.

Separate from the effect gerrymandering has, Congress already skews disproportionately Republican because white rural voters are overrepresented in both the House and the Senate. Look at the difference between the rural share of the U.S. population overall, at 25%, and the rural share in the average state, a whopping 35%. Since every state gets two senators, rural voters—mostly Republican—get a disproportionate share of power, and voters in big cities—more of whom are Democrats—get screwed. The rural bias also affects the House.

The Trumpist Republican Party uses the power it has gained at least in part through gerrymandering state legislative districts to pass laws at the state level that suppress votes among members of disadvantaged groups. Likewise, Republicans use that same power in Congress to prevent reforms that would ban the gerrymandering of congressional districts as well as protect voting rights—and damn Sen. Joe Manchin and Sen. Kyrsten Sinema for enabling them to get away with it. Republicans employ these tactics in order to win more power than they could in a truly fair election—and then subsequently use that power to make elections less and less fair.

Their actions only make it more imperative that Democrats do what they can within the law to ensure that the results in Congress look a little bit more like the actual will of the voters. Doing so is nothing more than basic political self-defense. They can and must gerrymander where they are able to, even while pushing hard to ban it across the board.

Disarming unilaterally in the middle of a fight is neither moral nor ethical. Doing so might just lead to the demise of our democracy.

Ian Reifowitz is the author of  The Tribalization of Politics: How Rush Limbaugh’s Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)