Bob Brown/Richmond Times-Dispatch via AP
This article appears in the Fall 2018 issue of The American Prospect magazine. Subscribe here.
Despite severe gerrymandering, Democrats stand a strong chance this November of regaining power in statehouses across America. If they realize those gains nationwide, they can use the resulting pro-reform climate to level the playing field for the next decade.
Increasingly, voters live near politically like-minded neighbors, a geographic pattern of population clustering that serves as the raw material for constructing gerrymanders. In 2010, Republicans used this raw material to create the most gerrymanders in modern history and consequently, a large political advantage. Even if Republicans lose the national popular vote by as much as 6 percentage points, we estimate that they still have an even-odds chance of retaining control of the House of Representatives. A good half of that advantage comes from creative districting in a handful of states. As a result, several dozen House seats in those states are nearly guaranteed to be occupied by Republicans in nearly any political climate. This advantage is like a levee, built to withstand waves of public opinion that favor the other side.
As of early September, polling trends suggest that a Democratic wave may overtop this levee by flipping districts in less-gerrymandered states. In special elections since 2016, Democrats have outperformed Hillary Clinton's performance against Donald Trump by an average of 11 percentage points. She won the popular vote by 2 percentage points, so if this pattern were applied to the whole nation, it would translate to a 13-point popular margin, the biggest margin for either party since the depths of the Watergate scandal in 1974. Even a margin half as large would still be enough to switch dozens of seats from Republican to Democratic and make Democratic control likelier than not.
It shouldn't take a massive wave election to turn bums out of power, of either party. Unfortunately, the Supreme Court is unlikely to act to limit partisan gerrymandering. This year's landmark case Gill v. Whitford eschewed easy and clear mathematical tests in favor of a district-by-district analysis, which raises the bar dramatically on what it will take to prove gerrymandering.
With prospects for federal action on gerrymandering fading, it's time to pursue reform through individual states. Such a federalist approach lacks the sweeping breadth of constitutional doctrine. But metaphorically speaking, if a damaged roof can't be replaced entirely, it can still help to patch individual holes.
Employing easy-to-use statistical tests, one of us previously identified eight states where major partisan gerrymandering offenses occurred in the 2010 redistricting cycle: Florida, Maryland, Michigan, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin. Somewhat surprisingly, every one of these “Egregious Eight” has a realistic path to avoiding or undoing a future partisan gerrymander after the 2020 census—without any help from the Supreme Court.
Here are four ways to attack gerrymandering at a state-by-state level:
The Gubernatorial Route
This is the most straightforward political solution. In most states, the governor has a critical role in drawing new districts. And even though partisans can vitiate the power of the vote by drawing lines to encircle or split communities, they can't put in the fix in a statewide vote for governor.
Voters this November elect the great majority of the nation's governors to four-year terms, which will get to the next wave of redistricting, beginning in 2021. Governors will have to sign off on new redistricting plans in Florida, Maryland, Wisconsin, and Pennsylvania. In all of these states, the candidate running in opposition to the legislature is, at a minimum, running competitively in polls. In the only state with a clear Democratic gerrymander, Republican Governor Larry Hogan of Maryland is a strong favorite for re-election. That likely will prevent the Democratic legislature from gerrymandering districts as it did in 2011.
In neighboring Virginia, both parties are already likely to have a say over redistricting. Governor Ralph Northam, a Democrat elected in 2017, will have to sign off on legislative district maps produced by the Republican-controlled General Assembly. Virginia is notoriously gerrymandered: A 9.6 percentage point win in the popular vote by Democrats was not enough to give them control of the House of Delegates. Democratic districts were so packed that the median winning candidate did not even have an opponent. A bipartisan legislative map has the opportunity to untilt the playing field and give Virginia a fresh start.
State Constitution-Based Lawsuits
In the one bright spot in gerrymandering lawsuits this year, the Pennsylvania state Supreme Court ordered the congressional map to be redrawn.
This was a big win in a state that typically splits its popular vote fairly evenly between Democrats and Republicans. Nevertheless, in the last three elections the Keystone State has sent 13 Republicans and only five Democrats to Congress. The map for this November, which does not cut up cities in creative ways, looks to have as many as nine competitive districts.
The U.S. Supreme Court declined to review the Pennsylvania case on the grounds that decisions based on state constitutions are largely beyond its reach to overrule. In this way, reform in Pennsylvania was able to avoid running afoul of an indecisive or hostile Supreme Court.
By our count, 29 state constitutions—more than half—have a clause calling for free and fair elections. Some go further: Florida's Fair Districts amendments provide detailed protections against partisan gerrymandering, and were used to successfully prosecute a court case that led to a redrawing of multiple congressional districts and a re-do of the entire state Senate map. State court intervention is also possible in cases of racial gerrymandering. As the Roberts Supreme Court has steadily chipped away at Voting Rights Act protections, both the need and the opportunity have arisen for state courts to address racially based offenses under versions of the Equal Protection Clause found in state constitutions.
Many constitutions also have language that echoes the free-speech protections of the federal Constitution. Such phrasing exists, as well as a potentially sympathetic state Supreme Court, in Michigan, North Carolina, Pennsylvania, and Wisconsin. A free-speech clause is important because Supreme Court Justice Elena Kagan has outlined a theory that gerrymandering unconstitutionally penalizes a whole political party for expressing its views. Under such circumstances, she wrote, a state political party can assert that it has suffered viewpoint discrimination, a violation of the First Amendment.
These statewide claims can take advantage of the flowering of statewide mathematical standards developed in the last few years to identify gerrymanders. And while the unanimous opinion in Gill shied away from embracing such statewide measures, it also acknowledged a point one of us made in an amicus brief: Such measures are so simple that they can be calculated by pencil and paper or a hand calculator.
The Initiative Route
Even in the best case, court rulings can only stem the worst gerrymanders because courts tend to defer to a state's own legislative processes. Nothing, however, stops a state from reforming its own process—nothing, that is, except the tendency of legislators to preserve their own seats.
The way around that barrier is to go directly to the voters. Twenty-one of the 50 states allow voters to mount an initiative for direct popular vote. Such a route opens the possibility of creating a commission that takes redistricting power out of the legislature's hands. Commissions established in Arizona and California have realized the hopes of reformers by creating competitive districts and enhancing representational fairness.
In May, Ohio passed a ballot measure establishing a congressional redistricting commission. The legislature can still intervene if the commission deadlocks, but the resulting lawmaker-created map would only be used for four years.
A stronger measure is on the ballot in Michigan this November. There, the citizen group Voters Not Politicians gathered several hundred thousand signatures for a measure that establishes a California-style commission, in which three groups of commissioners—Democrats, Republicans, and independents—must separately sign off on a plan. The initiative is on the ballot alongside other popular ideas such as a $12 minimum wage and marijuana legalization.
This route is not without its risks. Chief Justice John Roberts has been vocal in his opposition to citizen initiatives that take districting power away from legislatures. Opposing him was Anthony Kennedy, so Kennedy's retirement puts independent commissions newly at risk. Even if Michigan voters approve reform, a sensible next step might be to find a way to get the legislature to pass its own law approving of the new process.
The Legislative Route
Every one of the Egregious Eight is covered by one of the three options above. In some states, however, a gerrymander can be struck down by a court only after it is passed. To avoid such a protracted dispute, one last possibility exists: Legislatures will clean up their own acts.
This is less unlikely than it sounds. In 1980, the Iowa legislature overwhelmingly passed a law to establish a nonpartisan redistricting process. The motive that inspired this change was not necessarily idealistic: Both Republicans and Democrats feared being locked out of power in the next redistricting cycle. Still, passing a reform out of fear for one's own skin is better than no reform at all.
Also, don't underestimate the power of public opinion. This year has seen an unusually high wave of enthusiasm for redistricting reform. Previously a somewhat obscure subject, gerrymandering has drawn attention from grassroots organizations in multiple states. These activists can help pressure legislators into doing the right thing.
These four routes to reform are examples of the new role that federalism can play in democracy reform. States' rights have long been used to justify anti-democratic actions, but state-level actions may also help repair one of American democracy's longstanding problems.
Note: This is a revised version of an earlier article, "The States Are Now the Best Route to Gerrymandering Reform."
