The Slatest

The 2018 Election Was a Body Blow to Partisan Gerrymandering

PROVO, UT - NOVEMBER 6: A couple walks into a polling center to vote in the midterm elections on November 6, 2018 in Provo, Utah. Utah early voting has been highest ever in Utah's midterm elections. One of the main proportions on the ballet in Utah is whether Utah will legalize medical marijuana.  (Photo by George Frey/Getty Images)
A polling place in Provo, Utah. Utah voters endorsed a ballot measure on Tuesday that will limit partisan gerrymandering.
George Frey/Getty Images

The 2018 election was a body blow to partisan gerrymandering. Four states enacted redistricting reform that will diminish the role of politics in drawing district lines; more elected Democratic governors who can veto partisan maps. Another state, North Carolina, replaced a Republican state Supreme Court justice with a liberal who fought gerrymandering as a civil rights attorney. No matter what happens in 2020, it is all but guaranteed that the next decade’s maps will be significantly fairer than our current gerrymandered mess.

Start with the ballot measures. Voters in Colorado, Michigan, Missouri, and Utah passed laws that restrict politicians’ ability to carve up districts along political lines. Colorado and Michigan amended their state constitutions and will now use an independent commission to draw boundaries for both congressional and state legislative districts. Missouri also passed a constitutional amendment to empower a state auditor to draw state legislative districts on the basis of partisan fairness, ensuring that the outcome of each election is roughly proportional to the popular vote. Utah enacted a statute that creates a bipartisan commission to draw district lines without consideration of political advantage. The Legislature can override this map, but it is legally obligated to replace it with a plan that does not favor a political party.

Tuesday’s gubernatorial races could also affect the next cycle of redistricting, which will begin after the completion of the 2020 census. Voters in Kansas and Wisconsin elected Democratic governors, who could veto partisan maps in 2021. The GOP retained its supermajority in both state legislatures, however, so Democrats will need to flip more legislative seats in 2020 to prevent Republicans from overriding a veto. Voters in Nevada sent Democrat Stephen Sisolak to the governor’s mansion; if the Legislature swings Republican in 2020 and produces a gerrymandered map, Sisolak can veto it.

In New Mexico and Oregon, voters elected Democratic governors as well as progressive state legislatures. On the off chance those chambers flip in 2020, their governors will serve as a firewall against GOP gerrymandering. Democrats are likely to retain legislative control, though—which raises the specter of liberal gerrymandering. Oregon is already gerrymandered in favor of Democrats, and New Mexico’s districts were drawn by a court after GOP Gov. Susana Martinez vetoed Democratic maps that she claimed to be gerrymandered. With Martinez gone, Democrats could create maps that entrench their majority. In an ideal world, the U.S. Supreme Court would outlaw partisan redistricting. But until it does, Democrats who gain full control in blue states may opt not to unilaterally disarm, especially since Republicans have mastered the dark art.

Perhaps the most interesting (if subtle) pushback against gerrymandering on Tuesday arrived in the form of Anita Earls’ victory in North Carolina. Earls won a seat on the state Supreme Court—due in part to Republican chicanery that backfired spectacularly—securing a 5–2 progressive majority on the bench. A former civil rights lawyer, Earls previously played a major role challenging North Carolina Republicans’ egregious gerrymanders in court. Although a federal district court struck down the current map, the current U.S. Supreme Court is highly unlikely to affirm its decision. Instead, the court will probably refuse to do anything about partisan gerrymandering, leaving the issue to the states.

That creates an opportunity for progressive state judiciaries. The Pennsylvania Supreme Court famously invalidated its state’s partisan gerrymander under the Pennsylvania Constitution, ordering a new, much fairer map. Earls could lead her court to do the same. Unlike the federal Constitution, the North Carolina Constitution expressly guarantees all citizens a right to vote and requires all elections to be “free.” Earls could follow the Pennsylvania Supreme Court’s lead and hold that partisan gerrymandering illegally dilutes the power of certain voters’ ballots in the basis of their political association. The North Carolina Supreme Court could then strike down both congressional and legislative maps that discriminate against Democratic voters.

Voters don’t like gerrymandering. It’s fundamentally anti-democratic, and when it’s put to a majority vote, it essentially always loses. In light of the Supreme Court’s inaction, Americans are doing pretty much everything they can to keep politicians from manipulating the next round of redistricting. It won’t be enough to abolish the practice altogether. But it does mean that, at a minimum, the House of Representatives will be a more even playing field in the coming decade.