Carlos Osorio/AP Photo
Protesters attend a meeting of Michigan’s Independent Citizens Redistricting Commission on October 21, 2021, in Lansing, Michigan.
Efforts to limit partisan gerrymandering of congressional districts are a case study in a good-government reform that has gone badly wrong. Redistricting reforms would be fair if they were adopted nationally and imposed the same rules on all states, or if they were equally likely to be enacted in red and blue states.
In practice, however, the restraints on partisan gerrymandering have been adopted almost exclusively in blue states. Ironically, though, the Supreme Court’s conservative majority may step in to correct that liberal folly in a case that comes up for oral argument tomorrow.
In 2019, when the Court refused to set any national rules to limit partisan gerrymandering, it declared that “state statutes and state constitutions can provide standards and guidance for state courts to apply.” Elections for the House of Representatives consequently now proceed under different rules in different states, some with restraints on gerrymandering and some without. In 2022, Republicans had sole control of redistricting in 19 states, Democrats in seven, while one state (Maine) had split control, and nonlegislative commissions or state courts restrained partisan gerrymandering to varying degrees in the 18 other states. (Six states have no districts because they have only one representative.)
The result is a striking partisan imbalance. Altogether, Republicans controlled redistricting for a total of 177 seats, compared to a Democratic-controlled total of only 49 seats. The states with restraints on partisan gerrymandering were nearly all blue or, in a few cases, purple states. North Carolina, with 14 seats, was the only state where court-supervised redistricting significantly restrained Republican gerrymandering, a restraint likely to disappear now that Republicans control a majority on the state’s highest court. (Although North Carolina has a Democratic governor, under the state’s rules the governor plays no role in redistricting.)
The only red states with nonlegislative redistricting commissions were Idaho, Iowa, and Montana, together accounting for only eight seats. Michigan, a purple state, has a redistricting commission, which prevented what would have been split control between the Republican legislature and Democratic governor Gretchen Whitmer. Democrats won full control of Michigan’s government in the 2022 elections but cannot engage in mid-cycle redistricting because of the nonlegislative commission. Meanwhile, the biggest blue states, California and New York, limited partisan gerrymandering through a commission or a court.
In short, Democratic states have bound themselves to be fair to Republicans, but Republican states have not reciprocated. This outcome could not be better for Republicans. They are free to gerrymander in the states they control, while liberal good-government reforms restrain Democrats in the states where they might use gerrymanders to pick up extra seats.
The Supreme Court, however, may eliminate this imbalance when it rules on Moore v. Harper. In that case, North Carolina Republicans are challenging the decision by their state’s highest court to throw out the legislature’s map and calling on the U.S. Supreme Court to adopt the “independent state legislature” doctrine, which holds that state legislatures should have plenary and exclusive power to determine federal election rules, unfettered by their state’s constitution, courts, or a governor’s veto.
Democratic states have bound themselves to be fair to Republicans, but Republican states have not reciprocated.
As Sam Wang, director of the Electoral Innovation Lab, has pointed out in The Washington Post, the Republicans’ case could backfire. Since courts and independent commissions have limited gerrymandering almost entirely in states where Democrats control the legislatures, a decision that put redistricting solely in legislative hands would primarily benefit Democrats. Wang estimates that undoing court-ordered restricting plans in New York and Maryland could enable Democrats to pick up as many as five seats, and eliminating independent redistricting commissions in California, Colorado, and Michigan could give them up to a dozen more.
This may sound paradoxical in view of the outcome of the 2022 election. According to the Cook Political Report’s tally of the national vote for the U.S. House, Republicans received 54.367 million votes, while Democrats received 51.267 million votes—a split of 51.47 percent to 48.53 percent of the two-party vote, a nearly 3 percent win for the Republicans. But a 3 percent edge in seats would have given them a slightly larger majority in the House than they will have come January. As Aaron Blake of the Post points out, the 2022 results are unusual: In 12 of the other 14 House elections since 1994, Republicans have won a larger share of seats than of votes. So, from the 2022 election results alone, you might conclude that Democrats benefited from the post-2020 redistricting. But that would be the wrong inference.
As Blake notes, a variety of factors affect the total national House vote, including the decisions by each party not to contest certain seats, allowing the other party to “run up the score.” In 2020, that happened more in Republican districts. Furthermore, according to an early analysis by Republican consultant Patrick Ruffini, the Republican swing in 2022 was least in Biden +0-5 districts and most in Trump +10 or more districts. In other words, Republicans were getting the most additional votes in the districts where they least needed them.
If Ruffini’s analysis is correct, it raises a question: Have Republicans just maxed out their advantage in seats in most red states, or did their own red-state gerrymandering pack too many Republican votes into their incumbents’ districts, preventing them from picking up more seats? If the latter is true, they may just have miscalculated their own self-interest in 2022, overemphasizing incumbent protection.
But for Democrats, that will mean bigger obstacles to flipping districts in Republican states in 2024 and the rest of the decade. Still, Republicans won 18 districts this year that Biden won in 2020 compared to only five Democratic wins in districts that went to Donald Trump. And of the 18 Biden districts that Republicans won, 11 are in California and New York and were nearly all decided by small margins. That should give Democrats good opportunities to flip back the House. But in Florida and other states where Republicans used gerrymandering effectively, Democrats may have trouble making gains that would be available to them under more fairly drawn maps. In 2024, we could very well return to the dominant pattern of the past three decades, when Democrats have typically received a smaller proportion of seats in Congress than their share of votes.
Enter the Supreme Court. If the Court adopts the Republican independent state legislature theory, Democrats would be free to use gerrymanders to get themselves as many as the additional 17 seats that Wang estimates they could grab. “Thank you, Samuel Alito!” Democrats may want to say.
But the likelihood that Democrats would benefit in redistricting does not mean they should hope the Court accepts the independent state legislature doctrine. The dangers are too great. It threatens to remove state constitutional restraints on many aspects of elections and could set off a free-for-all in the manipulation of election rules.
Moreover, the notion of a state legislature free of restraint by its own state constitution contradicts the basic principle of American government that legislative power is subject to constitutional rules as interpreted by the courts. Indeed, that is the theory behind the Supreme Court’s own power of judicial review, which the Constitution nowhere explicitly mentions. Like the Constitution as a whole, the Constitution’s Elections Clause also fails to specify that legislative power is subject to constitutional rules (in this case, within a state). But to take that silence as a basis for eliminating judicial review in the states would be a supreme act of hypocrisy for a Court whose authority depends on the unwritten principle that courts have the power to say what the law is.
Regardless of what the Court does, no independent reformer and no Democrat should be happy with the status quo. Reformers should recognize they made an error in pursuing “fair maps” for Congress in the states when Republican-controlled states had no intention of accepting them. And Democrats should be unapologetic in making the case to overturn anti-gerrymandering restraints on congressional redistricting in the blue states on the grounds that such restraints are fair only if the rules for redistricting are established nationally by the Supreme Court or Congress. Fairness in redistricting is folly if it isn’t fairly carried out.
Perhaps the only way we’ll get to genuine reform of congressional redistricting is if reformers and Democrats give up trying to achieve it through the states. If Republicans see blue states gerrymandering to the hilt as they have been, they may come around to the idea that we need a national solution to the problem.
I don’t think that solution will come from a requirement that all states have independent redistricting commissions. As long as we have a system of single-member districts, the commissions are too vulnerable to manipulation. A real national debate will have to be open to new alternatives, such as Fair Vote’s proposal of proportional representation in multimember districts. Congress has changed districting systems for the House in the past; it could do it again. In the meantime, we need to recognize that a state-by-state approach to congressional redistricting just doesn’t work.
