Jurisprudence

New Jersey Democrats’ Diabolical Gerrymandering Scheme Is an Affront to Democracy

Men in suits with blue ties standing behind a wooden podium with microphones on it.
New Jersey Senate President Stephen Sweeney talks to reporters after Gov. Chris Christie delivered his final State of the State address at the statehouse in Trenton, New Jersey, on Jan. 9.
Seth Wenig/AP

Behind closed doors, state lawmakers hatched a plan to entrench their majority in the Legislature by carving up districts along partisan lines. Party leaders figured out how to push through the measure at record speed, short-circuiting rules that require bipartisan buy-in. Now, in the face of widespread opposition, they’ve doubled down, pretending that their scheme merely reflects the will of the voters.

Such secretive partisan power grabs have become an old story in contemporary U.S. politics. What’s surprising about this maneuver is that it is mounted not by swing-state Republicans but by Democrats in New Jersey. Legislators in the Garden State hope to fast-track a constitutional amendment that would likely create a durable Democratic gerrymander of the Legislature. If passed, the proposal would strike a blow against democracy and undermine the Democratic Party’s ability to hold the moral high ground on partisan redistricting—all for the sake of padding out a liberal statehouse with a few more Democratic seats. It is exactly the kind of election rigging that most progressives rail against today.

New Jersey’s current legislative redistricting process is not perfect. The chairmen of both major parties appoint five members to a redistricting commission, and the New Jersey Supreme Court appoints a nonpartisan tiebreaker. Typically, each bloc proposes a map. The tiebreaker then picks the plan that hews closest to the New Jersey Constitution’s requirement that legislative districts be compact and contiguous. No plan may warp districts for partisan advantage. (Congressional districts—that is, seats in the House of Representatives—are drawn differently, and the new proposals do not seek to change that process.)

The proposed constitutional amendment, alternatively known as S.C.R. 43 or A.C.R. 205, would overhaul this procedure. First, it would change the composition of the redistricting commission, increasing its size to 13 members. State party chairs would nominate just two members; the state Senate president, state Senate minority leader, assembly speaker, and assembly minority leader would each nominate two members, including at least one state legislator. The chief justice of the New Jersey Supreme Court would then appoint a 13th commissioner.

Obviously, this scheme would hand politicians far more control over the process, creating districts that are not only more partisan but also more likely to favor incumbents. But the second change is even more dramatic, and diabolical. It would require half of legislative districts to favor Democrats, and half to favor Republican—but at least 25 percent of districts would have to be “competitive.” That might be reasonable if the measure defined competitiveness fairly, as a district evenly divided between Democrats and Republicans. It does not. Instead, a district would be “competitive” if its party composition is within 5 percentage points of the statewide average vote for president, senator, and governor over the past decade.

That number likely gives Democrats a 55 percent majority. So a district with a Democratic majority from 51 to 61 percent would be considered competitive. To understand how the map would operate in practice, consider the state Senate, which has 40 seats total. Democrats would start each election with 20 safe districts. It could then compete in up to 10 more districts where Democrats outnumber Republicans. The map is a recipe for a permanent Democratic supermajority; an analysis by the Princeton Gerrymandering Project found that Democrats could theoretically capture 70 percent of legislative seats with just 57 percent of the statewide vote.

Even worse, Democrats are trying to ram through the measure in record time. Typically, a constitutional amendment cannot reach the ballot unless three-fifths of the state Legislature have approved it. But lawmakers have seized upon a little-used rule that sends an amendment to the voters once a simple majority of the Legislature has passed it in two consecutive calendar years. Democrats hope to approve the measure in December, then again in January, allowing them to place it on the ballot in November 2019.

Good government and civil liberties groups across the political spectrum have announced their opposition to the New Jersey plan. Coming out against the amendment are the American Civil Liberties Union of New Jersey, the Brennan Center for Justice, and the League of Women Voters—all of which have gone to court to block GOP gerrymanders. A coalition of about 130 groups, led by the South Jersey Progressive Women for Change, has also rallied against the scheme. Naturally, Republican legislators also object to the amendment. Yet this vigorous resistance has not daunted Democrats, who scheduled hearings over the House and Senate versions of the bill at the exact same time on Thursday. The simultaneous hearings seem designed to prevent opponents from speaking out in both chambers, limiting public input.

Outside of New Jersey’s Democratic caucus, the amendment has few supporters. Mother Jones’ Kevin Drum argued on Thursday that Democrats should gerrymander to prove that liberals can manipulate districts, since “conservatives on the Supreme Court will never strike down even the most egregious gerrymanders unless Democrats prove that they can play the game too.” But just this year, the court considered Maryland’s egregious Democratic gerrymander—and punted the case. If anything, more Democratic gerrymandering will only give the conservative justices cover to kick these cases out of court, depicting their abdication as nonpartisan because #bothsides do it.

The more difficult question is whether Democrats should simply embrace gerrymandering because Republicans do it and don’t appear eager to stop. Today’s most extreme partisan gerrymanders were all drawn by Republicans in swing states, most notably Wisconsin and North Carolina. New Jersey Democrats seem to think that fighting fire with fire is a rational response.

I disagree. Right now, Democrats have the moral high ground on gerrymandering: Yes, a few states (chiefly Maryland) have Democratic gerrymanders, but far more have GOP gerrymanders. The 2016 Democratic platform disapproves of partisan gerrymandering, describing it, correctly, as an assault on voting rights. In November, voters in four states enthusiastically approved ballot measures designed to remove politics from redistricting. Democrats across the country campaigned against partisan gerrymandering. A progressive civil rights attorney who sued to block GOP gerrymanders won a seat on the North Carolina Supreme Court. Gerrymandering reform is more popular than either political party, with 71 percent of voters opposing partisan manipulation of district lines.

In lieu of Supreme Court action, the best hope for abolishing gerrymandering is federal legislation to remove politics from the process. Democrats will struggle to campaign for such a bill if they themselves benefit from gerrymandering; they will be rank hypocrites. Moreover, if a large number of Democrats owe their seats to gerrymanders, they will surely be hesitant to rein in the practice. The Democratic Party cannot present itself as the party of voting rights if it is diluting the power of Republicans’ votes in order to maintain its own power.

There is, of course, a strong Machiavellian counterargument against unilateral disarmament on gerrymandering. New Jersey Democrats are testing their constituents’ tolerance for an aggressive realpolitik approach, even though they will almost certainly maintain their majority indefinitely even if their amendment fails. Democrats in other states will soon have to determine whether to replicate this strategy or attempt to win elections fair and square. To do so, they must decide whether brazenly diluting GOP votes is an acceptable price to pay for victory.