Gerrymandering, a legal form of vote stealing, more entrenched now than ever

In June 2019, the U.S. Supreme Court overruled a unanimous U.S. District Court decision that partisan gerrymandering in North Carolina violated the Equal Protection clause of the 14^th Amendment to the Constitution. Although Chief Justice John Roberts acknowledged that the practice leads to results that “reasonably seem unjust,” he maintained that partisan gerrymandering is a “political question,” beyond the reach of federal courts. Each state, Roberts indicated, should manage its own redistricting process.

Four justices dissented. In an emotional statement, which she read from the bench, Elena Kagan warned, “Left unchecked as the court does today, gerrymanderers like these may irreparably damage our system of government.”

The maps drawn to comply with the population count of the 2020 United States Census demonstrate that partisan gerrymandering — a legal form of vote stealing used by politicians who disregard the political composition of the electorate in their state to ensure they retain power for themselves and their party — is stronger and more resistant to reform than ever.

Republicans, who control a substantial majority of state legislatures, benefit significantly from gerrymandering, netting many seats in local assemblies and senates and 13-18 more members of the House of Representatives. States with Republican legislatures and a Republican governor have doubled down on partisan gerrymandering.

Ohio, which gave 53.3 percent of its votes to Donald Trump in 2020, is now represented in the House by 12 Republicans and 4 Democrats. Post-2020 census, the state lost one House seat. The redistricting map drawn by an electoral commission controlled by Republicans put the GOP in a position to hold 11 House seats, the Democrats 2, with two competitive races. After the state’s Supreme Court rejected the plan — twice — the commission has resubmitted it. And a U.S. District Court recently decided to allow the maps to be used in 2022 because the general election is only a few months away.

Florida, which gave 51.2 percent of its votes to Donald Trump in 2020, is now represented in the House by 16 Republicans and 11 Democrats. Post-2020 census, the state has gained one House seat. The partisan redistricting plan passed by the Republican-dominated state legislature was not partisan enough for Gov. Ron DeSantis. He submitted his own map and pushed it through the legislature. This plan makes it likely that Republicans will win 18 House seats, the Democrats 8, with competitive races reduced from 5 to 2. DeSantis’s plan has been challenged in court, but it is almost certain to remain in effect.

Wisconsin, which gave 48.8 percent of its votes to Donald Trump in 2020 and has a Republican legislative majority and a Democratic governor, has kept its Congressional map largely intact: 6 Republicans and 2 Democrats in the House of Representatives.

Democrats have by no means been immune to gerrymandering. In the last few decades, however, they have been far more likely to confront a political version of the Prisoner’s Dilemma: Do the right thing, establish non-partisan or bi-partisan commissions to draw election district maps, and put a “kick-me” again sign on their backs — or try to maintain their slim majority in the House of Representatives by fighting fire with fire.

New York provides a real-life example of a house divided against itself. In February 2022, after an electoral commission failed to reach a consensus on a redistricting map, the Democratic majority in the legislature provided a “master class” in gerrymandering, putting the party in a position to control 22 (a pickup of 3) of 26 seats in the House of Representatives. In a 4-3 decision, the state’s Court of Appeals, all of whose members were appointed by Democrats, struck down the maps because they were “drawn with an impermissible partisan purpose,” in violation of a 2014 amendment to the state constitution prohibiting gerrymandering. A new map, drawn by Jonathan Cervas, the court-appointed master, provides safe seats for 15 Democrats and 3 Republicans, and 8 swing seats.

Now that the Supreme Court has declined to intervene, the prospects of slowing down or stopping partisan gerrymandering are vanishingly small, because self-interested legislatures must approve reforms of the practice.

Because the stakes are too high to give up, reformers should learn to play a long game.

To increase media coverage of and public interest in the evils of gerrymandering ahead of the midterm elections, the Freedom to Vote Act, which authorizes the Department of Justice, private citizens, and political parties to bring lawsuits challenging Congressional maps to the U.S. District Court in the District of Columbia, should be brought to the Senate floor again by Majority Leader Chuck Schumer (D-N.Y.), even though the bill will not pass as long as Republicans can filibuster it.

Opponents of partisan gerrymandering should lobby to establish independent electoral commissions that are not subject to a veto by the legislature or governor. Indeed, Ohio, Missouri, Utah, Iowa, and Arizona as well as several blue states have taken this step, albeit with varying grants of authority. 

Reformers should also try to pass amendments to state constitutions defining and then banning extreme partisan gerrymandering. Although they do not always prevail, electoral commissions and constitutional amendments force gerrymanders to defend their maps to potentially skeptical judges. And putting these measures on the ballot can help remind Democratic, Republican, and independent voters that democracies cease to be democracies when the outcome of elections is predetermined.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”