Unless The Democrats Act, The GOP Will Steal The House Next Year

"Bipartisanship" by Nancy Ohanian

In his newsletter about redistricting this morning, Judd Legum points out what's at stake: "the future of democracy itself." It isn't just about insuring that each member of Congress represents the same number of people-- something that is accomplished by Texas gaining two seats while Florida, North Carolina, Colorado, Montana and Oregon each gain one at the expense of California, Illinois, Michigan, New York, Ohio, Pennsylvania, West Virginia, Rhode Island having lucked out by the skin of their teeth.

6 low-population states have only one congressman each-- Wyoming, Vermont, Delaware, Alaska and each Dakota (which would-- and should-- only be one state except for some GOP power-grabbing shenanigans in the late 1880s)-- and they have no redistricting to do... just as the Senate seats-- all at-large-- have no changes. However, the other 94 states all will be redrawing their districts to reflect internal population shifts, in both congressional districts and state legislative districts.

Members of both parties have historically attempted to manipulate redistricting to gain a political advantage-- slicing and dicing states to secure the maximum number of seats-- in a strategy called gerrymandering. But, in recent years, Republicans have seized an advantage with increasingly brazen tactics. In 2018, for example, "Wisconsin Democrats won the majority of the statewide vote but only 36 of 99 state assembly seats." After the 2010 Census, North Carolina Republicans attempted to gain more Congressional seats by packing Black voters, who overwhelmingly support Democrats, into two oddly shaped districts.

The 2020 redistricting process, which will play out over the next few months, could lock in a decisive advantage for Republicans for the next decade. In 20 states which oversee 187 Congressional districts, Republicans have full control of the state government and, therefore, the redistricting process. Democrats have similar control in just 8 states which oversee 75 Congressional districts. The remaining Congressional seats will be determined by independent commissions or states with divided governments.

In previous years, redistricting has been somewhat constrained by the courts. But, since 2010, the Supreme Court has significantly diminished the federal judiciary's ability to rein in gerrymandering. As a result, in 2022, Democrats could "win the national popular vote for the House by 2 or 3 points like they did in 2020-- yet they still lose 10 or 15 seats." The current Democratic margin in the House is just five seats.

Gerrymandering has been deployed to deprive racial minorities of political power. This was initially done by spreading out minority voters across many districts. Later, growing minority populations were packed into as few districts as possible.

Regardless, prior to 2013, redistricting proposals in areas with a history of racial discrimination required pre-clearance by the Justice Department under the Voting Rights Act. This included all of Texas, which is adding two new districts, and parts of Florida, which is adding one.

In the 2013 case of Shelby v. Holder, however, Chief Justice John Roberts gutted the Voting Rights Act and ended the preclearance process. This means that, for the first time in decades, the Texas legislature will be able to redraw its lines without Justice Department oversight.

The ability of the legal system to curb the excesses of gerrymandering took another blow in the 2019 case of Rucho v. Common Cause. In that case, Roberts said that partisan gerrymandering was “non-justiciable.” That means courts do not have a role in determining whether gerrymandering for partisan purposes goes too far. Federal courts, "relying on the work of respected political scientists," had come up with standards and used them "to strike down partisan gerrymanders in Wisconsin, North Carolina, Ohio, Michigan, and Maryland." But Roberts [a stupid and ignorant man with a big job] dismissed all of that as “sociological gobbledygook.”

Legum asserts that there are ways to fight back against gerrymandering. He suggests independent non-partisan or bipartisan commissions, which are already operative in Arizona, Colorado, California, Hawaii, Idaho, Montana, Michigan, New Jersey, Virginia and Washington and-- to a lesser (advisory) degree Connecticut, Indiana, Iowa, Maine, New Mexico, New York, Ohio, Rhode Island and Utah. Legum writes that "If such commissions controlled the process in all fifty states, it would solve much of the problem. But right now, more of them are in place in large states controlled by Democrats, including California, Colorado, and New Jersey. Republicans that have gained power over the state legislature through gerrymandering are predictably unwilling to cede the power to gerrymander. In some states, it may be possible to override the legislature through a ballot amendment."

California could, for example, tell Texas that if they don't put in an independent commission for congressional seats, California will abolish its own and instead of 11 GOP seats, they could easily reduce that to just one or two. (Bye-bye Moron Kevin McCarthy, as well as Tom McClintock, Jay Obernolte, David Valadao, Devin Nunes, Mike Garcia, Young Kim, Ken Calvert and perhaps Darrell Issa. Doug LaMalfa would be still represent a red district.)

Legum doesn't consider that option, which, admittedly, is politically pretty implausible. Instead, he notes that "While federal courts will no longer strike down partisan gerrymanders, no matter how severe, state courts are still an option. In 2018, the Pennsylvania Supreme Court struck down a partisan gerrymander of the state's Congressional districts. That map 'was designed to pack as many Democratic voters as possible into Pennsylvania’s 1st, 2nd, 13th, 14th and 17th districts.' It allowed Republicans to gain a 13-5 edge in the state's congressional delegation despite Republicans and Democrats securing a roughly equal number of votes. The map featured districts that looked like this:

The court found the map violated Section 1, Article 5 of the state constitution which provides that "Elections shall be free and equal." An excerpt:

By placing voters preferring one party’s candidates in districts where their votes are wasted on candidates likely to lose (cracking), or by placing such voters in districts where their votes are cast for candidates destined to win (packing), the non-favored party’s votes are diluted. It is axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation. This is the antithesis of a healthy representative democracy. Indeed, for our form of government to operate as intended, each and every Pennsylvania voter must have the same free and equal opportunity to select his or her representatives.

Under new maps, the Pennsylvania Congressional delegation is now evenly split, with 9 Democrats and 9 Republicans. The decision "gave states a blueprint" to strike down partisan redistricting and could be a "powerful new tool."

While states no longer need to preclear new districts under the Voting Rights Act, maps designed to dilute the votes of racial minorities could still be challenged in federal court. In the 2016 case of Cooper v. Harris, a majority of the Supreme Court found that "[t]he sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics" and struck down North Carolina's maps. The Supreme Court, however, is more conservative than it was in 2016 and it's unclear if future challenges to racially gerrymandered districts would be successful.

The ultimate solution to the problem of gerrymandering would be federal legislation, like the For the People Act, that would "ban gerrymandering, set uniform national rules for map drawing, and create independent commissions to draw all congressional districts." That legislation, however, has little chance of advancing unless more Senate Democrats support reforming the filibuster.

And abolishing the filibuster would take strong action by a weak-- and recently weakened-- president to force the hand of Joe Manchin and psychopath Kyrsten Sinema (or, more plausibly, Lisa Murkowski). I don't believe any of that's going to happen. It would be more realistic for New York, if not California-- both would be best-- to abandon it's commission-status and send Texas a message by reducing the number of Republican seats in the Empire state from 7 to 2. I'd prefer Legum's solution but Sinema-- if not Manchin-- is immovable.