Jurisprudence

The Novel Strategy Blue States Can Use to Solve Partisan Gerrymandering by 2024

Terry Lewis, Jimmy Jam, Rep. Kevin McCarthy, and Harvey Mason jr., CEO, Recording Academy attend GRAMMYs On The Hill Advocacy Day on Capitol Hill on April 28, 2022 in Washington, DC.
The next Speaker of the House, thanks to Democratic unilateral disarmament on gerrymandering? Paul Morigi/Getty Images

Last week, New York’s highest court deemed the state’s congressional map an illegal gerrymander. That map featured about 22 Democratic districts compared to just four where Republicans were favored. In the court’s view, the map was designed with a partisan purpose: benefiting Democrats and disadvantaging Republicans. This is no longer allowed after the redistricting reforms that New York enacted in 2014.

On its face, the court’s decision looks like a victory against gerrymandering. New York may now end up with a congressional map that better represents the state’s voters. Dig a little deeper, though, and a different picture emerges. Before the court’s decision, the House of Representatives was on track to modestly favor Republicans after redistricting, with the median seat about one point redder than the country as a whole. But if Republicans now win three to five more seats in New York, as some observers expect, the House’s pro-Republican bias will balloon. A fairer New York map will result in greater unfairness at the national level.

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The explanation, of course, is that New York’s congressional delegation doesn’t stand on its own bottom. Instead, it’s a part of a larger legislative chamber. Over the last year, other parts of that chamber, namely the delegations from red states with no judicial check, were ruthlessly gerrymandered in favor of Republicans. The invalidated New York map partly offset those red state gerrymanders. In contrast, a balanced New York map will allow the red state gerrymanders to skew the House in a Republican direction.

Thanks to these interstate dynamics, blue state reformers should be wary of proposals like the ones New York adopted in 2014. Independent redistricting commissions and bans on partisan motives are great ideas for congressional maps—if they’re implemented across the board. If they’re embraced only by blue states, on the other hand, they amount to unilateral disarmament. In that case, they permit red states that scorn reform to shape the composition of the House.

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Federal action is the obvious way to compel blue and red states alike to drop their weapons. Unfortunately, federal action isn’t currently on the table. In a misguided 2019 decision, the Supreme Court held that federal courts have no role to play in policing partisan gerrymandering. Earlier this year, the House did pass a bill that would have imposed stringent limits on gerrymandering. But like so many others, this proposal died at the hands of the Senate filibuster.

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If existing state reforms are counterproductive, and if the federal government has consigned itself to the sidelines, how can a House that accurately reflects the will of the people be achieved? One promising idea is for blue states to require their congressional maps to promote national partisan fairness to the extent possible. There exist several statistical measures of maps’ partisan fairness. These metrics could be applied to the House as a whole rather than to any individual map. Blue states could then design their districts with the aim of minimizing the bias of the House in its entirety.

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In practice, this would mean one of three things. If the House as a whole is reasonably balanced, blue states would draw fair maps. If the House is skewed in Democrats’ favor (as it was in the 1970s and 1980s), blue states would craft pro-Republican maps. And if the House has a pro-Republican tilt (as over the last decade), blue states would redistrict to benefit Democrats.

This proposal raises a tricky issue of timing. When blue states design their districts, it might not yet be clear in which direction (if any) the entire House will be biased. One solution is for blue states to wait as long as possible before finalizing their maps. At present, for example, nearly every state is done with congressional redistricting, so the cake is almost baked. Another option is for blue states to endorse three maps: one that’s fair, another that’s pro-Republican, and one more that’s pro-Democratic. The skew of the whole House, when it’s finally known, would then determine which map goes into effect.

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Had New York enacted a reform along these lines, its now-defunct congressional map would be valid. Again, that map made the House fairer by helping to offset pro-Republican gerrymanders elsewhere. This idea is potent enough that if just a few more blue states were persuaded, an unbiased House would actually be attained. Notably, California, Colorado, and Washington are all blue states whose independent commissions are barred from considering partisanship. If instead those commissions were instructed to pursue national partisan fairness—for instance, through voter initiatives taking effect later this decade—the commissions are responsible for enough districts that a fair House would, in fact, be the result.

And that would just be the short-term outcome. In the long run, faced with blue states drawing lines to minimize the House’s skew, Republicans might abandon their opposition to congressional intervention. They might find there’s no longer any point to gerrymandering red states, if each red state gerrymander is then offset by a pro-Democratic map in a blue state. Today, the door to federal action is closed. Blue state redistricting based on national partisan fairness could be the key to unlocking it.

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