The redistricting wars

Republicans are trying to gerrymander themselves into control of the House of Representatives — and they very well might succeed.

A seat in Tennessee here, seats in Ohio and Missouri there. Multiple seats, perhaps, in Texas, Florida, North Carolina, and Georgia. There are more possibilities, and they add up. Draw lines on the map that flip enough Democratic districts to safe GOP ones (just five on net), and Democrats’ slim majority will likely be gone. If that happens, much of the battle for control of the House of Representatives in 2022 would be settled before it even began.

Gerrymandering is by far the most effective modern tool for a party seeking to swing election outcomes in the US. Instead of attempting to change which people turn out, they can, usually once a decade, simply change the district lines so that some votes will matter more than others. Barring an immense change in voting patterns, a well-executed gerrymander can nearly guarantee a party’s dominance in a congressional delegation or state legislative chamber.

Democrats have limited options for fighting back. They have the power to gerrymander a few states of their own, most notably New York, but Republicans have total control of map-drawing in more (and more populous) states. They can try suing, but the Supreme Court has limited their legal options. They can try changing federal law — but so long as moderate Democratic senators support keeping the filibuster, that won’t work. They can protest, but Republican state legislature majorities won’t care. Their last resort will be to try to win by much more than they did last time.

In the House of Representatives, the current map is already tilted in Republicans’ favor. With the help of changing voting patterns and court decisions, Democrats were able to overcome that disadvantage in 2018 and 2020. But now the GOP has the chance to shake things up before the 2022 midterms. The future of President Biden’s legislative agenda, and the next decade of congressional politics, may hinge on how far they go.

For many state legislatures, the importance of new maps is even higher. For Congress, the GOP doesn’t have sole control over maps for the entire country; Democratic-controlled states and independent commissions will submit maps, too. If one party has full control of a closely divided state, though, they can gerrymander it to their heart’s content.

That leads to the other fear looming over Democrats during this particular redistricting process — that there could be a repeat of President Trump’s attempt to steal the 2020 election. Future GOP majorities in state legislatures or the House may feel more empowered to overturn the presidential election result, if gerrymandering ensures they’ll face no electoral consequences.

That is, after all, how gerrymandering works. It’s a way that a political party can make those pesky voters less relevant.

What is redistricting, and what is gerrymandering?

Every 10 years, after the US Census, district lines for the House of Representatives and for state legislature chambers are redrawn. In theory, this is mainly to take into account population changes as states grow and shrink, but in practice it serves as an opportunity for parties to seize the political advantage for the next decade, drawing “gerrymandered” maps that will help them win.

Partisan state legislatures control redistricting in most states, though some have handed the process over to commissions; there are many variations in exactly how things work across the 50 states (as the essential “All About Redistricting” website enumerates).

Gerrymandering isn’t new, but recent trends in US politics have amped up its national importance. The two parties are increasingly polarized, politics is increasingly nationalized, and voters with firm partisan loyalties are increasingly sorted geographically. More and more, the party that wins a US House seat is determined by how the district is drawn.

The key to partisan gerrymandering is what’s known as “packing and cracking.” The goal is to pack as many of your opponents’ voters into as few districts as possible, while cracking up their remaining voters (splitting them among several districts where they’ll be in the minority). Basically, you want to maximize the number of districts where your party wins by a comfortable but not too big margin. Winning by too big in a district means you’ve “wasted” some votes that could be used to counteract your opponents elsewhere.

As an example of how powerful packing and cracking can be, let’s imagine we have a state with 500 Democratic and 500 Republican voters — perfectly evenly divided overall.

Now let’s split up the state into 10 districts that will contain 100 voters each. If you could pack many of the Democrats into just two districts where they have an overwhelming advantage, and crack the remaining Democrats across the other eight, you’d get a result like this — where Republicans are set to dominate an evenly divided state just because of how the lines are drawn. (This is a simplified example, but a map with a similar outcome was used in North Carolina, where Democrats won half the vote in 2018 but just three of 13 House seats.)

It’s easy to spot an egregious partisan gerrymander, but determining what makes a “fair” or “good” map is tougher, and depends on what you value. In real-life redistricting, several (sometimes conflicting) factors often come into play:

• Partisan balance and competitiveness: Some argue that a fair map should end up reflecting the overall partisan vote of the state, and that if most statewide voters vote for Democratic candidates, Democratic candidates should probably end up winning most of the seats. Another reform priority can be amping up competitiveness — drawing districts close enough in their Democrat/Republican voter balance that they could conceivably swing to either party. Members of Congress themselves, however, prefer the job security offered by safe seats rather than competitive districts.
• Race and ethnicity: If judges find maps to be too harmful to a racial or ethnic minority’s voting power, the maps can be thrown out. In practice, this mainly benefits minority communities that are relatively sizable and concentrated in particular areas of a state. (If a minority population is too small or dispersed throughout a state, there will be no way to draw single-member districts where they predominate.)
• District shape: Oddly shaped districts are often viewed as a telltale sign of a gerrymander, and “compact” districts with cleaner shapes are posed by some as the solution. That’s an oversimplification — districts have to reflect where people actually live, which don’t always correspond to pretty maps — but many map-drawers take this into consideration. Additionally, the norm in the US is that districts should be contiguous (that is, a single district shouldn’t be “broken up” into different pieces in different parts of the state).
• Communities: Some line-drawers also put a high priority on keeping counties, towns, and neighborhoods together in districts (to the extent possible). Others take into account a broader concept known as “communities of interest” — basically, any group of people that might have something in common and want to be in a district together.

The tricky part lies in determining how to balance all those interests. And Democrats face an added challenge. Because of where Democratic and Republican voters happen to live in swing states — with much of the Democratic vote packed into urban areas — it is usually easier to draw state maps that favor Republicans.

Drawing balanced or competitive maps is certainly possible, but the line-drawers often have to make a concerted effort to achieve that end, and it can often get harder to do so if they want cleanly shaped and compact districts preserving county and town boundaries. Republican legislators will be disinclined to make such an effort, and the various independent redistricting commissions may vary in how they approach this challenge.

Previously, on redistricting

The last round of redistricting was an utter disaster for Democrats. It happened just after the 2010 midterm election wave, which cost the party more than 700 state legislature seats and gave the GOP total political control of most swing states. Republicans were therefore empowered to gerrymander many congressional and many state legislative maps to their hearts’ content, and did so, often through secretive or legally dubious methods.

The resulting maps gave Republicans a net advantage in the House — though experts disagreed on exactly how much of one, the GOP likely gained several seats at minimum because of it. (In 2017, the Brennan Center’s Laura Royden and Michael Li estimated the Republicans had a 16- to 17-seat advantage.) In swing-state legislatures, the situation was starker — Republicans gerrymandered and have held legislatures in states like Michigan, Wisconsin, and Pennsylvania ever since.

But Democrats didn’t sit on their hands. They launched a multi-pronged effort to overcome those gerrymanders — an effort that has had mixed success.

Lawsuits got state courts to overturn several of the worst pro-GOP gerrymanders (Democrats likely would not hold the House today if not for those decisions). A couple more states, most notably Michigan, put commissions rather than legislatures in charge of redistricting. Democrats took governor’s elections in Wisconsin and Pennsylvania, preventing Republican trifectas there. And shifts in the parties’ political coalitions weakened some GOP gerrymanders as the decade progressed, since Democrats began to perform better in suburbs.

But Democrats suffered bitter defeats as well. The US Supreme Court killed any hopes of federal litigation to counteract partisan gerrymandering, ruling in a 5-4 decision that federal judges can’t strike down maps on those grounds. Reforms at the congressional level have gone nowhere due to the Senate filibuster. Republicans held on to key governor’s offices in states like Florida, Georgia, and Ohio. And Democrats failed to make much progress flipping state legislative chambers.

So Democrats aren’t staring at an exact replica of 2010, but they remain clearly disadvantaged this time around. According to a tally by Stephen Wolf for Daily Kos Elections, Republicans have sole control of line-drawing for 38 percent of House districts, and Democrats only have 16 percent. The rest of the country has either divided partisan control of the process or has handed it off to commissions.

Overall, then, the GOP will quite likely gain an advantage in taking back the House, but just how much of an advantage is still up in the air. To understand what’s about to go down, we have to delve into what’s happening in the states. This will be a broad summary, but if you’re craving more detail, excellent guides to redistricting in every state have been written by Kyle Kondik and J. Miles Coleman at the Center for Politics and Stephen Wolf for Daily Kos Elections, and Dave Wasserman’s coverage for the Cook Political Report is also essential.

Partisan legislatures

First, let’s take the states where one party has control of redistricting. These are the easiest to predict — Republican-controlled states will try to draw pro-Republican maps, and Democratic-controlled states will try to draw pro-Democratic maps. Many specific factors will also come into play, such as whether the state is gaining or losing seats, geographic concerns, incumbents’ preferences, and what state courts might do — but generally, both parties are expected to gerrymander as much as they think they can get away with. The problem for Democrats: Republicans simply control more of these states.

Republicans’ big opportunities (TX, FL, GA, NC): The GOP has full control of redistricting in four large, somewhat competitive states that will comprise 94 congressional seats — Texas, Florida, Georgia, and North Carolina (a state where the governor, a Democrat, has no role in the process). It’s possible that Republicans could draw maps aimed at knocking out at least two Democratic incumbents in each of these states.

Other GOP-controlled states: Republicans control the redistricting process in 14 more states, most of which are solidly red. In some of them, they may have already “maxed out” what they can do with partisan gerrymandering — but even eking out just one more safe GOP seat in many of these states would add up to a significant swing in the House map. States where they could do so include Tennessee, Missouri, Kentucky, Indiana, Kansas, Ohio, and New Hampshire.

Democrats’ big opportunities (NY, IL): Democrats’ biggest opportunity for gerrymandering is in the large state of New York, where the legislature can override the commission that’s nominally in charge. The party has the chance to knock out several Republican seats there — as many as five, according to the New York Times. Illinois is the only other big state where Democrats control map-drawing, but their gains there will likely be smaller.

Other Democratic-controlled states: Democrats have full control over map-drawing in five more states, but they have fewer opportunities to make gains — those opportunities appear to be for one seat in Maryland (where a Democratic legislative supermajority can cut out Republican Gov. Larry Hogan from the process) and one in New Mexico.

States with divided partisan control: Finally, there are some states where the two parties are sharing power. Wisconsin, Pennsylvania, Minnesota, and Louisiana each have Democratic governors and GOP-controlled legislatures, and that will mean some tense negotiations. It’s possible no agreement will be reached, and the courts will have to step in. What happens then depends on which state court we’re talking about. A court could take a neutral approach, or act politically if the justices are so inclined (for instance, Democrats have a majority on the Pennsylvania Supreme Court, but conservatives have a majority on the Wisconsin Supreme Court).

Commission chaos

For another group of states — those using commissions to redistrict — partisan outcomes are more difficult to game out. The commissions used in different states vary quite a bit, and much may hinge on precisely who is selected to them. Here are a few key states where there’s some drama unfolding:

• California: This is a tremendously important state for Democratic control of the House (there are currently 42 House Democrats and 11 House Republicans there), but the party doesn’t get to gerrymander it. There’s a 14-member independent commission with five registered Democrats, five registered Republicans, and four from neither party. California is losing a seat, so it remains to be seen who will draw the short straw or how much the existing lines will change.
• Michigan: Here, a citizens’ commission composed of four registered Democrats, four registered Republicans, and five registered voters from neither major party has to draw maps without a disproportionate partisan impact. Democrats trying to read its tea leaves have reacted with something like panic to recent moves, including its hiring of a GOP law firm (they were the only bidder). Meanwhile, Republicans have questioned whether certain commissioners filling the seats for registered independents are secretly Democrats.
• Virginia: When Democrats took over the Virginia legislature in 2019, they supported a new bipartisan commission process for redistricting. They’re now having some second thoughts about that move, because the commission appears dysfunctional, and if it deadlocks, the conservative Virginia Supreme Court will get the final say.
• New Jersey: New Jersey’s congressional redistricting commission isn’t fully independent — it’s filled with political appointees — and Democrats got their preferred tie-breaking member. Still, they’ll face the challenge of drawing lines that can manage to protect all of their incumbents (they currently hold 10 of 12 House seats).

Democrats’ challenge

All of the arcane gamesmanship described above would be irrelevant if the House adopted proportional representation with multi-member districts. In such a system, the seats in the legislature each party gets would depend on what proportion of the vote they win in the relevant area. (This can only work if that area has multiple seats to split up, so “multi-member districts” rather than districts with only one seat each would be required.)

Gerrymandering is so effective because the US uses single-member districts where there can only be one winner. That makes it possible to draw districts in contrived ways so as to dilute or waste your opponent’s votes. With proportional representation and multi-member districts, a party winning 60 percent of the vote in a state would get about 60 percent of the seats in a state. But that would be a major change in the way the House has long worked, with one member per district. Even Democrats were unwilling to go this far in their voting reform legislation.

Yet the added difficulty for Democrats is that, so long as you have single-member districts, “natural” disadvantages, based simply on where supporters of each party live rather than deliberate gerrymandering, can also come into play.

Indeed, there’s long been a debate among election experts about how much of the clear GOP advantage in the current House map is attributable to gerrymandering, and how much to simple geography.

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In many states, it is possible to draw a politically balanced and competitive map — but you have to try. Put another way: If line-drawers were instructed to ignore partisanship entirely, they would be more likely to draw a map that favors Republicans, because of where Republicans and Democrats happen to live (Democrats are concentrated in cities). To draw a map that will incline toward fair partisan competition, you usually have to think about and try to achieve that outcome. This is an issue Michigan’s independent redistricting commission is currently facing.

So for Democrats, getting the politics out of redistricting might prevent the worst gerrymandering abuses, but it wouldn’t necessarily produce a map they consider fair.

Of course, in the abstract, any gerrymandering or geographical disadvantage can be overcome — you simply have to convince more, perhaps many more, people to vote for you.

In our polarized reality, that’s a lot easier said than done. But it may be Democrats’ only hope in 2022.