New York’s Gerrymandering Disarmament
When doing the right thing is the wrong thing.
Last week, the opinion editor of the New York Daily News reached out to ask if I’d be interested in writing something about his state’s recent court decision overturning an electoral map heavily gerrymandered to favor Democrats in light of my December OTB post on the Democrats’ unilateral disarmament on gerrymandering. It was published this morning.
Wednesday, the New York Court of Appeals, the state’s highest court, struck down congressional and state Senate district maps, which heavily favored Democrats, as “drawn with impermissible partisan purpose.” While the decision was split, 4-3, it was almost certainly a correct result under the state’s constitution and a theoretical victory for small-d democracy. Alas, since red states play by different rules, it amounts to unilateral disarmament by Democrats and effectively guarantees a Republican takeover of Congress after November’s elections.
The U.S. Constitution delegates the power to draw congressional districts to state legislatures, and the history of their doing so to the benefit of the majority party is long. The term “gerrymander” was coined in honor of Founding Father Elbridge Gerry who, as Massachusetts governor in 1812 signed into law a map rigged in favor of a forerunner of the Democratic Party in the state Senate, with one district that looked, to a cartoonist’s eyes, like a salamander.
Three years ago, in a 5-4 decision, the U.S. Supreme Court ruled that, even though the combination of big data and sophisticated computer systems give modern redistricters the ability to target party affiliation down to the level of the city block, it is within the authority of state legislatures to do so. Chief Justice John Roberts, writing for the majority, acknowledged that “Excessive partisanship in districting leads to results that reasonably seem unjust” but “Federal judges have no license to reallocate political power between the two major political parties.”
Both parties are guilty of gerrymandering. Indeed, the aforementioned Supreme Court ruling was based on a Republican-skewed map in North Carolina and a Democratic-skewed one from Maryland. And, obviously, the New York map heavily favored Democrats, with the party favored to win 22 of the state’s 26 House seats (85%) under the map even though roughly 40% of the state’s voters in recent elections have voted for Republican presidential candidates.
The problem is that increasingly, the two parties are playing by different rules. In recent years, there has been a movement toward having electoral maps drawn by nonpartisan commissions, so that voters choose their representatives rather than the representatives choosing their voters. That’s a positive step. Alas, states run by Democrats, including California, New Jersey, Virginia and Washington, are much more likely to have adopted the practice, while Republican-controlled states are doubling down on gerrymandering. This is compounded by the tendency of Democratic-majority states to make voting easier while Republican-led states seek to make it harder, with a disparate impact on poor and minority would-be voters, who disproportionately favor Democrats.
Indeed, while New York Democrats gleefully rigged the game in their favor when given the chance, the opportunity only came because a deadlocked bipartisan commission charged with drawing unrigged maps failed to satisfy its constitutional responsibilities and the Legislature then ran with the ball. As we learned Wednesday, the 2014 amendment to the state’s Constitution that created this commission also prohibits the Legislature from partisan gerrymandering through the back door.
Meanwhile, Republican-controlled states like Texas, North Carolina and Florida are unchecked by these sorts of measures and are doing everything in their power to maximize their advantage. Even though these states are increasingly “purple,” you wouldn’t know it by their GOP-heavy congressional representation.
My strong preference is for all states to make voting easier and elections meaningful by having competitive districts. (Actually, I would rather eliminate districts entirely, but that’s not on the horizon.) It would maximize participation and representation. It would also be fairer to the fastest-growing voter type, the independent.
When only a Republican or only a Democrat can win a contest, the election is effectively decided in the party primary — and thus by the most ideological and motivated voters. That’s not only undemocratic but inevitably leads to bad governance, as politicians increasingly serve only their party base and move further to the extremes.
At the same time, though, it makes no sense for Democrats to hamstring themselves by rules their Republican opponents aren’t playing by. Doing so not only disadvantages them in individual contests but exacerbates an inherently skewed system.
Republicans already have a significant built-in advantage in the Senate, where each state gets two members regardless of population, and a modest one in the House. This carries over into presidential elections, through the mechanism of the Electoral College, giving us Republican winners in 2000 and 2016 in contests where Democrats won millions more votes. Republicans leveraging all the tools at their disposal to gain additional seats while Democrats opt for fairness stacks the deck even further.
This is made all the more urgent in light of the “Stop the Steal” movement and the Capitol riots. The Republican Party has increasingly decided that it can’t win fair elections and must therefore do everything in their power to rig the game. And, sadly, won’t accept losing even then.