The Weaponization of Gerrymandering
How Extreme Partisan Gerrymandering Will End Competitive Elections
This is Civic Way’s fifth essay on state and local elections. In this essay, we continue our assessment of partisan gerrymandering. In our last essay, we outlined some of the perils of gerrymandering. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience improving government agencies across the US.
Highlights:
In 2010, extreme partisan gerrymandering evolved from a quirky, often clumsy, political ploy to a well-financed, computerized means for influencing the outcome of future elections
In the hands of those interested only in gaining or retaining political power, partisan gerrymandering has become the go-to mechanism for protecting political parties from competitive elections
The US Supreme Court’s distaste for setting national standards for fair, competitive elections has set the stage for the most brutal round of partisan gerrymandering yet
Gerrymandering’s Humble Origins
For decades, gerrymandering was little more than a political peculiarity. A sneaky way to serve the interests of a few politicians. A clumsy tool for adjusting a few maps. Moving an unliked incumbent into another district. Creating a legacy district for a trusted ally (and his or her offspring). Outside of the political class, a once-a-decade partisan ploy of little—if any—interest to the general public.
Both parties used gerrymandering when it suited their political purposes. When one party’s control of the state legislature aligned with the latest federal census, it took advantage, but typically in a fumbling way. It enabled the majority party, with uneven effectiveness, to redraw the congressional boundaries to their liking. The majority party’s temporary advantage was the result of good luck more than brilliant planning.
Until relatively recently, neither party had a comprehensive national redistricting strategy. Neither mounted a nationally-funded initiative to capture state legislatures and hijack the redistricting process. Both parties largely treated redistricting as a state-centric process, more afterthought than opportunity. Neither fully appreciated gerrymandering’s potential. And then, in 2010, it all changed.
Gerrymandering Comes Out
In the first decade of the 21st Century, gerrymandering finally came out of the closet. Unless citizens intervene, our politics will never be the same.
While the planning was already well under way, a new strategy for weaponizing gerrymandering was revealed in a March 2010 Wall Street Journal op-ed. Karl Rove, George W. Bush’s political advisor, introduced his party’s intent to gerrymander legislative maps throughout the nation. For the first time, a national political strategist argued openly, “he who controls redistricting controls Congress.”
In 2010, Republicans carried out the first phase of their ambitious plan. They spent at least $30 million on state legislative races. Not surprisingly, Democrats were caught flat-footed, failing to counter the GOP’s investment and paying the ultimate price. In the 2010 midterms, the GOP won around 680 state legislative seats and seized control of 25 state legislatures. They even captured both chambers of the North Carolina General Asssembly for the first time in over 100 years.
After their 2010 sweep of state legislative contest, the GOP launched the second phase of their plan—REDMAP, their national redistricting strategy. In many states, including battleground states like Florida, Georgia, Michigan, North Carolina, Ohio, Pennsylvania and Wisconsin, the GOP commandeered the redistricting process.
Republicans harnessed the state-of-art mapmaking technology and tools in which they had heavily invested. Technology that made it much easier to draw partisan maps without drawing undue attention. They leveraged other resources, like statisticians and private attorneys. With unprecedented speed, they gerrymandered the legislative districts wherever they controlled the redistricting process.
The 2012 Unveiling
In the 2012, the GOP reaped the first benefits of their national investment, and they were huge. The GOP won a 234-201 majority in the US House, despite winning 1.4 million fewer votes than Democratic candidates. President Obama won reelection, but his legislative agenda would face daunting headwinds.
Gerrymandering’s national impact on the political balance of power was profound. According to a 2018 Center for American Progress study, gerrymandering decided over 13 percent of US House seats. For the 2012, 2014 and 2016 congressional elections, an average of 59 candidates won House seats primarily due to unfairly drawn maps (39 GOP and 20 Democratic candidates). The net difference tipped the balance.
Gerrymandering also impacted individual states, benefiting Democrats in three states (Illinois, Maryland and New York), but Republicans in far more states. The partial list below is illustrative.
Illinois – in 2012, Democratic candidates won 12 of 18 US House seats (66 percent), but only 57 percent of the statewide votes
Maryland – in 2012, Democratic candidates won seven of eight US House seats (87 percent) with 63 percent of the statewide votes
Missouri – in 2018, the GOP won 70 percent of state legislative seats with 57 percent of the statewide vote
North Carolina – in 2018, GOP candidates won 10 of 13 congressional seats but only 50 percent of the statewide votes; GOP also won 58 percent of the state senate seats and 54 percent of the state house seats with less than half of the statewide vote
New York – in 2012, Democratic candidates won 21 of 27 US House seats (77 percent), but only 58 percent of the statewide votes
Ohio – the GOP won 12 of 16 US House seats but only 52 percent of the statewide votes
Pennsylvania – the GOP won 72 percent of the congressional seats, but only 49 percent of the statewide votes; between 2012 and 2018, Republicans retained control of the state legislature while losing 15 of 18 statewide elections
South Carolina – in 2016, the GOP won six of seven US House seats (85 percent) and 60 percent of the statewide vote
Texas – in 2012, the GOP won 24 of 36 US House seats (66 percent) and 57 percent of the statewide vote
Wisconsin – in 2018, GOP state legislative candidates won 60 percent of state legislative seats, but only 49 percent of the statewide legislative vote
Regardless of one’s partisan lens, both parties used gerrymandering to consolidate their grip on power. They established trifecta in some states, earned supermajorities in some state legislatures and retained legislative chambers that might have flipped but for the maps. For the first time since 1944, the two parties shared power in only three state legislatures. A recipe for political extremism.
The US Supreme Court’s Malfeasance
In 2019, the US Supreme Court had an opportunity to confront the rising threat of gerrymandering. In the Rucho v. Common Cause case, the Court was presented with two extreme partisan gerrymandered congressional maps, one set drawn by Republicans (in North Carolina) and one set drawn by Democrats (in Maryland). With a single decision, the Court could establish national standards to protect democracy.
However, in a 5-4 ruling, the Roberts Court punted. Chief Justice Roberts, in his majority opinion, wrote that partisan redistricting (i.e., gerrymandering) “presents political questions beyond the reach of the federal courts.”
The Court ruled that federal judges lack the constitutional power to stop gerrymandering even if its purely political. Instead of resolving the issue once and for all, the Court kicked it to Congress and state courts.
The Court’s rationale was as mystifying (and disappointing) as its decision. For years, any court looking for a way to evade responsibility could hide behind the mysteries of gerrymandering. That is, there was no generally accepted standard for measuring partisan gerrymandering. By 2019, however, such a standard had emerged. And it was offered to help the Court assess the two redistricting maps.
One amicus brief gave the Court the diagnostic tool it needed to verify the partisan bias of each set of maps. Using computer-based techniques, like the efficiency gap, the brief quantified the degree to which each party’s gerrymandering plan maximized the value of its votes. To illustrate, the North Carolina map gave Republicans a 21 percent efficiency gap. Chief Justice Roberts dismissed the analysis as “sociological gobbledygook.”
Instead of seizing the opportunity to make our elections more representative and competitive, the Robert Court looked the other way. In her dissent, Justice Kagan wrote, “Left unchecked, as the court does today, gerrymanders like these may irreparably damage our system of government.”
The US Supreme Court’s motives are unclear. Coupled with prior decisions, like the Citizen United ruling, one can argue that the Roberts Court has little interest in upending the status quo. That, if anything, the Roberts Court desires an electoral system driven by dark money and partisan manipulation.
State Courts (Some) Step Up
Whatever the Roberts Court’s real aim, the legal war against extreme partisan gerrymandering has shifted to state courts for the foreseeable future. The good news is that many state constitutions provide better grounds than the federal constitution for challenging gerrymandering rights. The bad news is that partisan interference in state supreme court elections (where so many state justices are selected) will likely escalate.
In any event, in the absence of US Supreme Court action, a tidal wave of state litigation is unavoidable. Partisan interests and voting rights groups have already filed cases in numerous state courts. Costly, protracted court battles are underway in state after state—Georgia, Michigan, North Carolina, Ohio, Pennsylvania, Texas and Wisconsin, to name a handful. The outcome of these lawsuits could determine which party controls the US House after the 2020 mid-term elections.
Some state courts have already done what the US Supreme Court failed to do—strike down extremely partisan gerrymandered maps. In Pennsylvania, for example, the state Supreme Court invalidated GOP-drawn congressional maps, shifting the partisan balance of the state’s congressional balance from 12-6 Republican to an even 9-9 split.
In North Carolina, Common Cause challenged the North Carolina General Assembly’s partisan district maps. In its Common Cause v. Lewis ruling, a state judicial panel ruled the maps violated the state constitution’s guarantee of free and fair elections. In its opinion, the panel found “extreme partisan gerrymandering … contrary to the fundamental right of North Carolina citizens to have elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.”
The judicial panel said what the US Supreme Court would not, “It is … certainly the province of the court to ensure that future elections … freely and truthfully express the will of the people.” The State Supreme Court forced the North Carolina General Assembly to replace its partisan district map with a map that more fairly represented statewide voting patterns. A welcome step, but no substitute for citizen action.
Setting the Stage for 2021
In 2020, Democrats won the national congressional vote by over three percentage points, but nearly lost its majority in the US House. With that majority hanging on the outcome of five congressional races in 2022, the pressures on state lawmakers—in both parties—to gerrymander districts will only increase.
Today, Republicans control 30 state legislatures and 23 state trifecta (i.e., Governor and both legislative chambers). Democrats control 18 state legislatures and 15 trifecta. The states with one-party control of the redistricting process will be unable to resist gerrymandering’s allure. Democrats in Illinois and New York. Republicans in Florida, Georgia, North Carolina, Ohio and Texas.
This year’s redistricting is our first since the US Supreme Court strengthened its stand against competitive elections. Since its 2019 Rucho v. Common Cause decision protecting partisan gerrymandering. Since its 2013 Shelby County decision weakening the Voting Rights Act. Only states with impartial redistricting processes will be truly safe from the onslaught of partisan gerrymandering.
In our next essay, we will outline ideas for ending this ugly practice once and for all.