Gerrymandering is putting US in Mad Max territory

In Shelby County, Alabama v. Holder (2013), five conservative U.S. Supreme Court justices struck down the provision in the Civil Rights Act of 1965 mandating “preclearance” by the Department of Justice for changes in voting laws and practices in states with a history of preventing Blacks from casting their ballots.

In Rucho v. Common Cause (2019), another 5-4 case, Chief Justice John Roberts acknowledged that excessive partisanship in drawing district lines leads to results that “reasonably seem unjust.” Nonetheless, Roberts declared that partisan gerrymandering presented political questions that lacked “judicially discoverable and manageable standards for resolving them” and that the constitutional guarantee of “one man, one vote” does not mean “a person is entitled to have his political party achieve representation commensurate to its share of statewide support.” 

The Supreme Court decisions, Justin Levitt, a professor at Loyola Law School, has pointed out, have put the United States in “Mad Max territory now; there are no rules.”

States in which one party controls the legislature are now using sophisticated software to design maps to predetermine the election outcomes in 2022 and beyond: by “packing” (concentrating voters — for example, an ethnic or racial group — in one district to reduce their impact elsewhere), “cracking” (spreading them among many districts to minimize their chances of electing the candidate they prefer) and “hijacking” (combining districts to force incumbents in the other party to run against each other).

Gerrymandering, to be sure, is as old as the United States. Both parties have used it. These days, however, the GOP is the principal perpetrator. Republicans in the U.S. Senate have filibustered legislation establishing minimum standards for federal elections. And gerrymandering has provided the GOP a net of at least 16 seats in the U.S. House of Representatives it would not otherwise hold.

Here are recent examples of the gerrymandering tsunami:

Some Republicans in North Carolina, a purple state that gave Trump 49.9 percent of its votes and Biden 48.6 percent, are not shy about what they’re up to: “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats [in the U.S. House of Representatives] because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats,” proclaimed David Lewis, chairman of the redistricting committee in North Carolina. But his GOP colleagues in the state legislature passed a plan that does just that. A three-judge panel upheld it earlier this month, finding that the North Carolina Constitution “does not operate as a restraint on the General Assembly’s ability to redistrict for partisan advantage.” The case has been appealed to the state’s Supreme Court, which has four Democratic and three Republican appointees.

Although Ohioans ratified an amendment to the state constitution in 2018 prohibiting the General Assembly from favoring one party in redistricting, the legislature designed a plan that gives Republicans, in a state in which the GOP gets about 55 percent of the votes, a 12-3 advantage in the U.S. House of Representatives. In mid-January, the Ohio Supreme rejected it in a 4-3 decision in which Judge Maureen O’Connor, a Republican, joined three Democrats. “When the dealer stacks the deck in advance,” the majority declared, “the house usually wins.” The court gave lawmakers 30 days to redraw the map. If they fail to do so, the task will fall to the Ohio Redistricting Commission.

In Texas, where the GOP won 52.1 percent of the votes in 2020, Gov. Greg Abbott (R) signed into law a redistricting plan that will, in all likelihood, result in 25 Republican and 13 Democratic members of Congress. Although people of color account for 95 percent of the population increase that earned Texas two additional seats in the House and although Hispanic Texans nearly match the number of white Texans, the new map has 23 white-majority districts, seven Hispanic-majority districts (one less than in 2020), zero Black-majority districts, and eight districts with no ethnic or racial majority. The plan, Elisa Gonzalez of Corpus Christi claimed, is “color blind in terms of being deliberately blind to citizens of color by making maps that silence their impact.”

Frustrated, perhaps, by the win-at-any-cost tactics of their adversaries, Democrats have, alas, decided to play hardball as well. In New York, which currently has 19 Democrats and eight Republicans in the House of Representatives and will lose one seat, a bipartisan redistricting committee deadlocked. Democrats, who control the legislature, are apparently considering squeezing six districts held by Republicans into three and adding liberal areas in Brooklyn to a swing district, which now includes Staten Island.

In 2022, political institutions in the United States are increasingly likely to be ruled by the minority. The U.S. Senate, of course, was designed to be undemocratic. But the Founders did not envision a Senate in which 50 Democrats represent 41.5 million more people than the 50 Republicans. Or a House of Representatives in which most seats are safely held by one party, primaries are more important than general elections and members have few incentives to reach across the aisle. Or gerrymandered state legislatures such as Wisconsin’s, where securing 48 percent of the statewide vote gives one party 60 percent of the seats.

Nor should any Republican or Democrat want to live in a democracy in name only, where, in reality, “voters don’t pick their politicians. Politicians pick their voters.”

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”