Remember Democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide.
—John Adams
“When the Lord closes a door,” Sister Maria reminds herself in The Sound of Music, before departing Nonnberg Abbey to start a new life as governess for the von Trapp family, “somewhere He opens a window.” The Supreme Court’s decision in Rucho did not bring to an end the decades-long battle to cleanse our democratic system of the scourge of gerrymandering. It marks a fresh beginning, a new frontier in the never-ending holding action to preserve and defend the Republic that Benjamin Franklin had promised at the Constitutional Convention in 1787.
The French aristocrat, diplomat, political scientist, and historian Alexis de Tocqueville wrote in his famous treatise on government, Democracy in America, “There is hardly any political question in the United States that sooner or later does not turn into a judicial question.” He might well have been right. But with almost two hundred years of hindsight, a second clause can probably now be added to his aphorism: there is scarcely a political problem in the United States for which there exists a satisfactory and effective judicial solution.
This is now our eighth decade of redistricting litigation since Felix Frankfurter’s famous warning about the dangers of the political thicket. What do we have to show for it? On three separate occasions, the Supreme Court has confronted the issue of partisan gerrymandering and on three separate occasions has failed to effectively address it. The justices have found themselves hopelessly divided, unable to agree upon a definitive standard for even identifying the most severe and egregious gerrymanders, let alone remedying them.
This lack of clarity is certainly not a product of a lack of information. There is more than ample data on the harms of gerrymandering, from the efficiency gap to the multitude of other metrics and statistical techniques that researchers have developed to measure, quantify, and differentiate the manipulative effects of district line drawing. A dearth of data is not the problem here. The problem is that judges are not statisticians, lawyers are not social scientists, and courts as institutions are ill-equipped to solve complex and highly technical policy problems in a satisfactory manner.
This was true in the reapportionment revolution, where the judiciary’s fixation on numerical equality as the be-all and end-all of fair representation allowed the modern gerrymander to fly in under the radar. Politicians are resourceful, strategic, and, when they need to be, devious and underhanded. When the Court closed a door on one avenue of electoral manipulation, it opened a window on another. Such is the nature of politics.
This was clear with racial gerrymandering, where the courts first failed to effectively deal with the problem of racial vote dilution in the wake of the civil rights movement, then became fixated on the highly irregular shapes of certain majority-minority districts, to the exclusion of all other relevant mitigating criteria, stymieing the dramatic expansion in minority office holding that the Justice Department had produced. Their obsession with “traditional districting principles”—applied selectively to districts that were drawn with the goal of allowing racial minority groups to elect candidates of their choice, but conveniently ignored when similarly employed to produce gross inequities between competing political parties—without first stopping to think about what those principles actually are, or if they even exist, should be troubling for any who believe in judicial salvation. If there’s one thing that this book has demonstrated, it’s that the only traditional districting principle that has been ubiquitous in America since before the founding is the gerrymander itself.
Where significant progress has been made in combating the harms of gerrymandering, it has almost always come from the people, rather than the courts. Either through direct action or by persuading their elected representatives to take up the cause. The pervasive use of racial vote dilution to blunt the influence of African American voters in the South was stamped out not through litigation but when Congress stepped up to pass the bipartisan 1982 amendments to the Voting Rights Act.
When the Prison Policy Initiative finally shined a light on the gross inequalities produced by counting prisoners at their place of incarceration rather than their homes, eleven state legislatures passed bills to correct those discrepancies. Hundreds of local jurisdictions have done likewise. And while the justices on the Supreme Court have repeatedly fiddled while our electoral system burned, significant progress has already been made in fighting back against the evils of gerrymandering using democratic mechanisms.
After six straight decades of partisan infighting, squabbling, and bickering, the people of California had finally seen enough. In 2008, the reform group California Common Cause collected enough signatures to place an initiative on the ballot, Proposition 11, amending the state constitution to create an independent, nonpartisan commission to take over responsibility for redrawing state legislative districts after the 2010 census. The effort was supported by such ideologically diverse groups as the ACLU, the NAACP, the League of Women Voters, the California Chamber of Commerce, the California Police Chiefs Association, and the National Federation of Independent Business.
Politicians of both parties endorsed it, including both the Democratic former governor Gray Davis and the man who replaced him in Sacramento following the 2003 recall election, the incumbent Republican, Arnold Schwarzenegger. Many of the state’s largest newspapers, including the Los Angeles Times, the San Francisco Chronicle, the San Jose Mercury-News, the San Diego Union-Tribune, and The Fresno Bee, ran editorials in support of Proposition 11. And more than $16 million was raised by the “yes” campaign and its affiliated interest groups, compared with only $1.5 million by the “no” side. Howard Jarvis would have been proud.
But it was also not without its opponents. And when opposition did arrive, it came from the places where it would be most expected: incumbent politicians whose party held a vested interest in the preservation of the status quo. The Democratic senator Barbara Boxer, the Democratic House Speaker, Nancy Pelosi, and the California Democratic Party all came out in opposition to Proposition 11, as did numerous Democratic interest groups. With Democrats dominating the state legislature, and the term-limited Republican governor unable to run again in 2010, their control over the 2011 redistricting process if the initiative were to fail seemed likely.
While Democrats elsewhere had grown increasingly skeptical of the gerrymander since the Republican successes of the early twenty-first century, in California, as chapter 7 discussed, it was one of the party’s most potent weapons. Now the state’s Democratic voters faced a choice. Would they support the creation of the Citizens Redistricting Commission, even if it meant ceding some of their political power to the Republicans? Or would partisan self-interest once again rule the day?
The people of both California and Ohio had faced a similar dilemma three years earlier. In 2005, the November ballot had included both Ohio Amendment 4, a Democratic-sponsored initiative to create a commission to redraw state legislative districts, and California Proposition 77, a Republican proposal pushed by Governor Schwarzenegger that would have turned over responsibility for redistricting to a panel of retired judges. Both measures went down to heavy defeats, by a 70–30 margin in Ohio and 60–40 in California.
The takeaway was clear. In both states the majority party—Republicans in Ohio, Democrats in California—opposed giving up their own hard-earned control over redistricting. While members of the same party, now in the minority—Democrats in Ohio, Republicans in California—suddenly became proponents of good government reform. It was a neat illustration of one of this book’s central arguments. Reforming partisan gerrymandering is so maddingly difficult because while everyone wants to get rid of it when they’re losing, no one wants to do so when they’re winning. But perhaps this too has begun to change.
In 2008, the voters of California approved Proposition 11 by the narrowest of margins, 51–49, with the “yes” campaign eking out victory by 200,000 votes in an election where nearly 14 million ballots were cast. Two years later, another ballot initiative, Proposition 20, added the drawing of congressional districts to the commission’s list of responsibilities, this time by a 61–39 margin. Then, in 2018, the floodgates finally opened. The citizens of five additional states—Colorado, Michigan, Missouri, Ohio, and Utah—passed redistricting reform measures, some by even more lopsided margins. In Ohio, where Amendment 4 had been voted down by forty points in 2005, a subsequent 2015 redistricting amendment, turning over the drawing of state legislative districts to a bipartisan commission, passed with 71 percent of the vote. The 2018 reforms to the drawing of congressional boundaries passed with 75 percent support.
In blue states, red states, and swing states, the voters were being given an opportunity to have a voice in how redistricting would be conducted after the 2020 census. Their message was clear, and spoken in unison: keep politics out of it. In one election, the American people made more meaningful progress toward ending gerrymandering than the Supreme Court had managed in more than three decades. And reform is possible even where state law does not allow for policy questions to be placed on the ballot through a citizens’ initiative. In New York, after four decades of redistricting dysfunction, pressure from activists, interest groups, and disgruntled voters finally persuaded the legislature to cede some of its control over the drawing of districts to a ten-member bipartisan commission. Change is happening, albeit slowly and frustratingly inconsistently.
All of which is not to suggest that lawsuits cannot sometimes be an effective tactic for combating gerrymandering. At least in certain circumstances, they can. Although I would still maintain that change at the impetus of the people is preferable to change at the direction of judges. And in the wake of the Supreme Court’s decision in Rucho, litigants have begun to bring partisan gerrymandering challenges in state court, with several notable successes.
In Florida, a 2012 suit by the League of Women Voters alleged that the Republican-controlled legislature had violated the state’s Fair Districts Amendments by impermissibly favoring GOP incumbents in the drawing of its state senate and congressional maps. After four years of litigation, during which several courts concluded that the plans violated the state constitution, the Florida Supreme Court finally approved a new map that corrected the violations in the U.S. House plan. A trial court later imposed a similarly redrawn set of districts for the state senate. Both court-drawn maps were used for the 2016 elections. Though the GOP was able to maintain their majority in both the senate and the House delegation, they had narrowed to twenty-three to seventeen and fourteen to thirteen, respectively, by the 2018 election, having been twenty-six to fourteen and seventeen to ten earlier in the decade.
In Pennsylvania, another lawsuit by the League of Women Voters targeted the gerrymandered Republican congressional map, alleging that it violated the free and equal elections clause of the state constitution. The GOP-drawn plan had produced a thirteen-to-five Republican edge in U.S. House seats in the 2012, 2014, and 2016 elections, despite the popular vote fluctuating between a two-point Democratic victory in 2012 and an eleven-point Republican landslide in 2014. This is the essence of a partisan gerrymander—a 13 percent popular vote swing from one election to the next produced precisely zero change in control of the seats in Congress.
In early 2018, the Pennsylvania Supreme Court ruled that the gerrymander was invalid, concluding that it “clearly, plainly and palpably violates the [state] Constitution.” For their trouble, the four justices who made up the majority in the 4–3 decision were subjected to an impeachment attempt by twelve Republican members of the state legislature. Under the new map imposed by the court for the 2018 and 2020 elections, the eighteen districts were split nine-nine, with the Democrats picking up four seats.
Finally, in North Carolina, the congressional districts that had been drawn by Thomas Hofeller in 2011 were also subjected to legal challenge, this time by a group of fourteen voters. A parallel lawsuit was filed by Common Cause, alleging that the Republican-drawn general assembly districts violated the North Carolina Constitution’s free elections clause. Under the challenged plan, Republicans had won 29 of the 50 senate seats in 2018, and 65 of the 120 house seats, despite losing the popular vote for both chambers.
In Congress, the story was remarkably similar to Pennsylvania. The popular vote had ranged from a two-point Democratic victory in 2012 to a twelve-point GOP win in 2014, but the seat totals had remained virtually unchanged. After winning nine of the thirteen seats in 2012, Republicans held a ten-to-three edge in the elections of 2014, 2016, and 2018. In 2019, the North Carolina Supreme Court ruled that all three sets of districts must be redrawn to cleanse them of their partisan taint. The result: Democrats picked up two additional seats in 2020, creating a somewhat more balanced eight-to-five split in the delegation. “After nearly a decade of voting in some of the most gerrymandered districts in the country,” said Eric Holder, the chair of the National Democratic Redistricting Committee, “courts have put new maps in place that are an improvement over the status quo, but the people still deserve better.”
Holder was correct about the limits of judicial remedies. These three cases, though ending in victory for the plaintiffs, illustrate some of the continuing drawbacks in relying on courts to police partisan gerrymandering. The wheels of justice, it is often said, turn slowly, sometimes agonizingly so. Each of these maps, though plainly in violation of its respective state constitution, was used for multiple elections before the judiciary was finally able to step in and ensure its replacement. The Florida gerrymander remained in place for the 2012 and 2014 elections; the Pennsylvania map was used through 2016; and Hofeller’s North Carolina plan survived longer than the man himself. The districts he drew were still in place for the 2018 election, which took place several months after his death.
Courts are reactive, not proactive. And while the moral arc of the gerrymander may bend toward justice, every delay along the parabola permitting another election to be held under illegally drawn boundaries represents justice denied. Lawsuits remain a lengthy, complex, and expensive method of combating gerrymandering, one that must be undertaken every decade, in every state, with no guarantee or even likelihood of success.
So, what other options remain? So fundamentally broken is the redistricting process in the United States that any reform, no matter how imperfect, represents an improvement over the status quo. And rather than providing a singular policy prescription, I will conclude this book with a discussion of some of the strategies that have already worked, either in individual states or in other nations, along with notes on their likely effectiveness.
The redistricting reforms that have been implemented in a minority of U.S. states generally fall into one of three categories, albeit often with partial or even significant overlap. It’s perhaps best to think of these solutions as existing along a continuum, with their positions dictated by the extent to which they remove the process from the hands of self-interested politicians and the degree to which they impose constraints on those who are responsible for it.
At one extreme is the status quo, the foxes-guarding-henhouses conundrum. Redistricting is the responsibility of the majority party in the state legislature or, if control of state government is divided, the product of compromise between competing factions. Constraints on the process are generally minimal. They usually amount to little more than norms favoring the types of “traditional districting principles” that have been discussed extensively in this book, such as contiguity, compactness, preservation of communities of interest, and a desire to avoid splitting counties or other municipal units. As we’ve seen, when a party has both the political will to subvert these norms and the political capital to effectively do so, they offer little resistance to the imposition of an egregious gerrymander. Some of these principles are also codified into individual state constitutions, although enforcing them effectively remains a challenge.
A number of states also have some variation of the free and equal elections clauses that formed the basis of some of the recent state court challenges to partisan gerrymandering. According to the National Conference of State Legislatures, “30 states have some form of constitutional requirement that elections be ‘free,’ 18 of these states further require that elections be either ‘equal’ or ‘open’ in addition to being free, [and] 15 state constitutions also include language that explicitly protects a citizen’s right to vote from improper influence or interference.” I discuss these and other types of legal restrictions on redistricting extensively in my 2017 book, Drawing the Lines: Constraints on Partisan Gerrymandering in U.S. Politics. Suffice it to say, while they can, and sometimes do, have marginal effects in restraining some of the worst impulses of line drawers, they are of little impediment to a party that is determined enough to implement a gerrymander.
The constitution of the State of Maryland includes a contiguity mandate, a compactness requirement, and a free elections clause, as well as requirements that those conducting redistricting follow existing political subdivisions and preserve both communities of interest and the cores of previous districts. None of these prevented the Democratic legislature from crafting a plan in 2011 that unseated one of the two Republican House incumbents, giving them a seven-to-one advantage in congressional seats from 2012 through 2020. These nominal constraints, where they exist, are enforceable only through litigation, and so suffer from the same drawbacks associated with other legal remedies that have already been discussed.
A handful of states, namely Florida, Iowa, and Ohio, have taken things further, imposing additional legal criteria designed specifically to prevent partisan gerrymandering. The Florida Fair Districts Amendments, passed with 63 percent of the vote in the 2010 election, provided that “legislative districts or districting plans may not be drawn to favor or disfavor an incumbent or political party.” But, as we’ve already seen, these amendments are not self-enforcing. When legislators choose to ignore them, as the Florida Republicans did in 2011, the only remedy is to file a costly and time-consuming lawsuit. And though the Fair Districts Amendments did lead to the dismantling of the GOP gerrymander, it was not until two sets of elections had already been held under the unconstitutional boundaries. In essence, Florida sends the foxes a sternly worded letter warning them not to eat any chickens and lets you sue them afterward if they don’t listen. Hardly a panacea.
The voters of the Buckeye State also implemented reforms to their redistricting practices, this time through a legislatively referred amendment to the state constitution. The 2018 Ohio referendum, while leaving the state legislature in control of congressional redistricting, added additional procedural requirements designed to encourage bipartisanship. Under the new rules, any proposed map must receive a three-fifths majority, along with at least 50 percent support from both Democrats and Republicans, to go into effect for the remainder of the decade. This bipartisan supermajority requirement is designed to ensure that the majority party in the legislature is unable to implement a partisan gerrymander of both chambers. And while that eventuality is foreclosed by the reform, the drawbacks of this approach are immediately obvious.
First, it is open to bipartisan incumbent protection, where the minority party agrees to the majority’s proposed plan purely to safeguard their own seats, and jobs. Second, it incentivizes the kind of collusive handshake deals that became endemic in New York. If control of the legislature is divided, each side can agree to allow their respective chambers to draw their own map, institutionalizing the existing division of partisan control. In both situations, voters are precluded from any meaningful input into who wins control of the legislature and which candidates are elected to its individual seats. Basically, Ohio requires the foxes to agree beforehand how many chickens each of them gets to eat, or else the henhouse remains closed. It’s a good thing foxes aren’t known for their cunning.
Iowa has an entirely unique system for conducting redistricting. Since 1980, the state legislature has delegated the task to nonpartisan legislative staffers, who are required to produce district maps without any reference to political data whatsoever. This includes the addresses of incumbents, the partisan affiliations and other demographic information on registered voters, and the results of prior elections, none of which may be considered when producing a plan. The resulting maps are then submitted to the general assembly for an up-or-down vote.
Of the approaches that leave the legislature as the primary mover and shaker in the redistricting sideshow, this one is clearly superior. But it still doesn’t entirely foreclose the possibility of shenanigans. If three successive proposals from the legislative staffers are voted down by the assembly, the process short-circuits, and the foxes are given free rein to craft their own alternative plan. It was also imposed by statute rather than constitutional amendment, meaning that the legislature could at any point decide to change its mind and reassume control. Nevertheless, the system appears to have worked pretty well so far. In 1991 and 2011, the first plan was adopted; in 2001, it was the second proposal; and in 1981, the third time was the charm. Iowa leaves the foxes at least technically in charge of the henhouse but takes the added precaution of locking them in cages around mealtimes.
Which brings us to the phenomenon of redistricting commissions. When reformers talk about how to fix the problem of gerrymandering, these discussions almost inevitably involve an appeal for some kind of commission. What this conceals, however, is the staggering amount of variation even among the minority of states that have already adopted one. Commissions fall into one of four broad categories, although even these often have significant overlap between them. In fact, there are almost as many different kinds of redistricting commissions as there are redistricting commissions. Basically, it’s complicated.
The first are backup commissions, whose responsibilities are triggered only when the legislature is unable to pass a redistricting plan by the statutory or constitutional deadline. Backup commissions for state legislative plans have been established in Connecticut, Illinois, Mississippi, Oklahoma, and Texas and for congressional plans in Connecticut, Indiana, and Ohio. In states without backup commissions, failure to pass a plan in a timely fashion instead throws the matter to the courts, so their utility is marginal. Not much to see here.
The second are advisory commissions, an example of which is the system adopted in New York after the final handshake deal discussed in chapter 10. Here, the commission—usually appointed by some combination of the party leadership in the state legislature, the governor, or the courts—is responsible for drawing up a proposed set of district boundaries, which may then be adopted as is, amended, or rejected and replaced with an alternative map by the legislature. Five states (Maine, New York, Rhode Island, Utah, and Virginia) have so far established advisory commissions that play a role in the redrawing of their congressional and state legislative districts, while Vermont, which has had only one seat in the House since the 1930 census, uses its advisory commission only for the state legislature. While advisory commissions impose a democratic norm in favor of independently drawn district boundaries, they cannot prevent a party that is determined enough to gerrymander from successfully doing so. It’s akin to handing the foxes a memo outlining the farmer’s voluntary but strongly encouraged chicken protection plan before turning them loose on the henhouse.
The next step along the continuum is the bipartisan redistricting commission. Here, as the name suggests, the state has removed the logistical task of redrawing districts from the hands of the politicians who will compete in them, and vested it in a commission made up of equal numbers of Democrats and Republicans. Sometimes, these commissions also include a tie-breaking member who is independent of either side, such as a nonpartisan redistricting expert, legal scholar, or political scientist. Other times, a supermajority requirement plays the same role, ensuring at least a modicum of bipartisan consensus to successfully pass a plan. While members of the legislature themselves are not directly involved, it is generally the responsibility of the party leadership to select the commission’s members, so its composition may still be subject to political influence.
Some commissions are bipartisan in name only. The very first state to adopt a redistricting commission was Arkansas in 1956, with 58 percent of the state’s voters supporting the switch. The Arkansas Board of Apportionment, whose responsibilities extend only to the drawing of districts for the state legislature, is made up of the governor, the attorney general, and the secretary of state, all elected positions in the executive branch of the state government. By virtue of the 2018 elections, all three of these positions will be held by Republicans when redistricting is conducted after the 2020 census. Even on occasions when the voters have returned a bipartisan slate of executive branch officials, as was the case in 2010 when the Democratic governor, Mike Beebe, was elected alongside a Republican secretary of state, the odd number of commissioners ensures that one side will always control a majority.
New Jersey’s Apportionment Commission, the next to be established in 1966, was instead created to guarantee bipartisanship. It has thirteen members, two each appointed by the senate president, the assembly Speaker, the minority leaders of each chamber, and the chairs of the state Democratic and Republican Parties. The tie-breaking thirteenth vote is selected by consensus or, if the commission deadlocks, by the chief justice of the state supreme court. In recent decades, that tie-breaking vote has been held more often than not by the late Rutgers University political science professor Alan Rosenthal, who served as the independent member of the congressional redistricting commission in 1992 and 2001 and of the state legislative commission in 2011. Some form of bipartisan commission has primary responsibility for the drawing of state legislative districts in Hawaii, Missouri, Ohio, and Pennsylvania, with Hawaii and New Jersey also using them for congressional districts. Bipartisan commissions effectively take the foxes out of the henhouse-guarding equation entirely and replace them with weasels. Sure, fewer chickens per capita are likely to find themselves getting eaten, but I doubt the residents of the coop are feeling especially secure.
Finally, there is the gold standard: the independent redistricting commission. Or at least, independent in theory; in practice, your mileage may vary. The most prominent of these in the United States is probably the California Citizens Redistricting Commission. Its fourteen members consist of five registered Democrats, five registered Republicans, and four unaffiliated voters. Politicians, legislative staffers, and lobbyists are all prohibited from serving. The process works thus. Any registered California voter may apply for a position on the commission. In 2010, there were almost thirty-six thousand applications. The state auditor’s office then reviews the application materials, which include a personal essay and letters of recommendation, and narrows the list to the sixty most qualified candidates: twenty Democrats; twenty Republicans; and twenty independents. After each category is narrowed to twelve, eight commissioners are selected at random from the remaining pool, and they in turn are responsible for choosing the remaining six. The goal is to create a representative cross section of qualified citizens unbeholden to the Sacramento political establishment.
Once empaneled, the commission is subject to strict rules about how the districts must be drawn. Traditional principles like compactness, contiguity, and respect for communities of interest and political subdivisions must be followed, while the interests of incumbents, candidates, and political parties may not be considered. The commission is required to “conduct an open and transparent process enabling full public consideration of and comment on the drawing of district lines.” In 2011, thirty-four public hearings were conducted during which the testimony of twenty-seven hundred citizens and organizations was heard. But the process is by no means foolproof. A widely cited article by the independent investigative journalism organization ProPublica alleged that the California Democratic Party had engaged in a systematic effort to influence the commission’s deliberations, surreptitiously enlisting “local voters, elected officials, labor unions and community groups to testify in support of configurations that coincided with the party’s interests.” While the commission members denied that they had been unduly swayed by these tactics, the resulting maps were viewed by many observers to be somewhat more favorable to the Democrats than they were to the Republicans. An investigation by the nonpartisan Public Policy Institute of California concluded that “the CRC plans led to greater competitiveness compared to plans drawn by the state legislature in 2001,” and that while “Democrats have had a slight edge under the CRC plan,” this advantage nevertheless lacked “the size or durability typical of a gerrymander.”
California was not the first state to experiment with independent redistricting. Montana (1972), Washington (1983), Idaho (1994), Alaska (1998), and Arizona (2000) had already established similar commissions on which elected representatives and public officials were prohibited from serving. Notably, these other states allow the legislature to have direct input into the selection of commissioners, increasing the possibility of undue political influence. But the California model seems to be one that is catching on. In 2018, the voters of both Colorado and Michigan approved constitutional amendments creating independent redistricting commissions. Both states, like California, require them to be made up of a mix of registered Democrats, Republicans, and independents, allow any interested citizen to apply for a position, and employ some form of random process to select the membership.
The takeaway from California’s experiment is that attempting to constrain, incentivize, or shame the foxes into behaving themselves is futile. It is the nature of foxes to eat chickens. Nothing can change that. At the conclusion of this tour of the history of American gerrymandering, one lesson is clear. Only the chickens themselves can be trusted to guard the henhouse. And while only a handful of states have so far truly embraced the notion of independent redistricting, in the rest of the world it is very much the norm.
“During the nineteenth century, in Europe and in self-governing European colonies around the world, the drawing of constituency boundaries was the responsibility of the legislature,” writes Lisa Handley, the political scientist and consultant to the United Nations on issues of democracy building and election administration. “Partisan politics and gerrymandering were more often than not a normal element of the [redistricting] process. But in most consolidated Western democracies, the idea that politicians are best excluded from the [redistricting] process has emerged, and legislators have opted out, handing the process over to independent commissions.” Her essay appears in the 2008 book Redistricting in Comparative Perspective, perhaps the most comprehensive academic study to date of the differing practices utilized by the world’s democracies to draw the districts from which the members of their legislature are elected. The results were stark.
“Today, a substantial majority of countries employ an election commission or a specifically designated boundary commission to [redraw] constituency boundaries,” she continues. “Of the 60 countries in the survey that [redraw] electoral districts, 43 (73 percent) assign the responsibility for constituency [redistricting] to an election management body or to a boundary commission specially formed for the purpose.” Boundary commissions, as the independent nonpartisan bodies responsible for redrawing the United Kingdom’s parliamentary constituencies are known, originated in New Zealand in 1887. They have since spread throughout the British Commonwealth, including to the UK itself, Australia, Canada, India, and Fiji. Independent boundary commissions are also used in Albania, the Bahamas, Belize, Botswana, Dominica, Germany, Ireland, Japan, Namibia, Nepal, Papua New Guinea, Singapore, and Zimbabwe.
Other nations make use of an election management body, generally a government agency or commission that is responsible for election administration more generally, rather than redistricting specifically. They usually have a significant degree of independence from the executive and legislative branches. Such systems are used in Armenia, Bangladesh, Belarus, the Dominican Republic, Indonesia, Jamaica, Kenya, Lithuania, Malaysia, Mexico, Nigeria, Pakistan, Poland, Tanzania, Turkey, Ukraine, and Yemen. Of the remaining seventeen nations in the survey, the vast majority of those whose legislature has primary responsibility for redistricting also employ some form of proportional representation or mixed electoral system. These award parties a percentage of seats based on the overall popular vote, rather than the results in individual districts, making gerrymandering less of a concern. “The United States and France,” Handley concludes, “are the only two surveyed countries dependent solely on single-member constituencies for the election of legislators that allow the legislature a dominant role in the [redistricting] process.”
That process is now under way in the United States. Across the nation, legislatures and commissions are redrawing the boundaries that will be used for U.S. House of Representatives and state legislative elections for the remainder of the decade. The storm is already upon us. Both sides have been planning and organizing for this for almost a decade. Eric Holder and the National Democratic Redistricting Committee, along with his counterpart Scott Walker and the National Republican Redistricting Trust, are already implementing their strategies for rigging the results of American elections for the next ten years. In August 2019, the two men aired their respective grievances on Twitter. “As we said, @EricHolder doesn’t want the public to know the real mission of his organization—to gerrymander Democrats into permanent control,” Walker charged. “If anyone tells you that @EricHolder is ‘fighting against gerrymandering’ and for ‘fair maps,’ just look at the form his organization filed with the IRS. The truth: their mission is to ‘FAVORABLY POSITION DEMOCRATS FOR THE REDISTRICTING PROCESS.’ ” “This is so contrary to the facts—things Scotty doesn’t like—and his own efforts to gerrymander for R’s that it’s laughable,” Holder countered. “The big lie. Challenge: Say—like me—you will support non-partisan commissions to draw the lines. Politicians not in control.”
This is what we’ve been reduced to: the two parties’ respective redistricting czars sniping at each other on social media about which side’s efforts to subjugate the will of the people is more pervasive. Enough already. The blame game accomplishes nothing. I have no doubt that both Holder and Walker have exactly the same goal in mind: how best to manipulate the redistricting process to ensure that their side comes out ahead. Lather, rinse, and repeat. Always repeat. The battle for control of America’s governing institutions will not be fought on the campaign trail, in the media, or by the armies of campaign volunteers, activists, and paid professionals whose job is to mobilize supporters and win over undecided voters. It will be fought and won by a handful of mapmakers, attorneys, data scientists, and redistricting professionals whose names most people will probably never even know.
“Each generation,” wrote Chief Justice John Roberts in his 2019 year-end report on the federal judiciary, “has an obligation to pass on to the next, not only a fully functioning government responsive to the needs of the people, but the tools to understand and improve it.” Only months earlier, he and his colleagues had dashed the hopes of millions with their decision in Rucho, foreclosing once and for all a federal judicial solution to the problem of gerrymandering.
Roberts, a pragmatist, an institutionalist, and a conservative in both ideology and temperament, seemed keenly aware of the backlash their decision had produced. So, he took the opportunity to remind his fellow citizens about the importance of civic education, civil discourse, and an engaged body politic for the continuing health of democracy. His colleague Justice Neil Gorsuch expressed similar sentiments in a book published the previous year. “My worry,” he wrote, “is that in our country today we sometimes overlook the importance of these kinds of bonds and traditions, and of the appreciation for civility and civics they instill.”
The Framers of the U.S. Constitution gave us the institutions, the philosophical traditions, and many of the tools and norms necessary to create a healthy and functioning representative democracy. But they did not supply the virtues required to maintain it. The seeds they planted were strong and hardy. The American system of government has weathered a devastating civil war, numerous attempts at demagoguery from all corners of the political spectrum, massive expansion of the franchise, civil unrest, and all manner of threats both foreign and domestic. But as we enter the third decade of the twenty-first century, the level of confidence that Americans have in the mechanisms of their democratic system is waning.
Aside from the pervasive influence of the modern gerrymander, which is today more devastatingly effective than it has ever been before, voter suppression, outdated voting technology, underfunded and often unfortunately incompetent election administration, the influence of wealthy donors and big money, and foreign interference in our campaigns have shaken the foundations of our democratic mechanisms to their very core. And if there’s one thing that I hope this book has made clear, it’s that the politicians who benefit from this dysfunction cannot be trusted to fix it. We have the power. Only we can act to safeguard our democracy.
It will not be easy. The mechanisms that incumbent politicians have erected to protect their cushy institutionalized jobs and insulate themselves from the public sentiment are strong and difficult to break down. Some of them may even be intractable. But that should not prevent us from affecting what we can affect, fixing what we are able to fix, and reforming what is capable of being reformed. Let’s not allow the perfect to become the enemy of the good. Voting is not enough. Once rigged, elections cannot be unrigged merely through the diligent and careful exercise of the franchise. We must organize to prevent gerrymandering from creating yet another decade in which who votes in elections, and whom they vote for, matters little in a sizable percentage of American states.
Where direct democracy is available, petitions must be organized, signatures must be gathered, and initiatives must be placed on the ballot to remove redistricting from the hands of self-interested incumbent politicians and place it in the hands of independent commissions. Where it is not, state legislatures must be lobbied to sponsor popular referenda, or to pass bills achieving similar ends. Congress must be pressured to enact legislation to require independent redistricting for all federal elections. Momentum must be built and then sustained. Minor reforms beget more significant ones, and each small step in the direction of a healthy, responsive democracy makes the next giant leap not only possible but inevitable.
The good news is that the anti-gerrymandering position is the popular one. A 2019 poll by the Campaign Legal Center, a nonpartisan democratic advocacy group, found that 63 percent of Americans—including 65 percent of Democrats, 64 percent of independents, and 59 percent of Republicans—viewed partisan gerrymandering unfavorably. In that same poll, 62 percent expressed support for the creation of independent redistricting commissions, and 65 percent opined that they preferred for districts to be drawn without partisan bias, even if that bias benefited their side. We don’t need to win people over, to persuade them why it’s a bad idea to continue leaving the foxes in charge of guarding the henhouses. They already agree. What is needed is for them to be mobilized, for the media to shine a brighter light on the abuses of the people’s charge, for rich philanthropists to fund interest groups dedicated to redistricting reform, and for politicians to be shamed, cajoled, and brought kicking and screaming into the realization that they must take action. We need to make the electoral downside to the powers that be of stymieing redistricting reform outweigh the benefits that they currently receive from gerrymandering. We have made some progress, but it’s not enough.
In statehouses across the nation, the task of redrawing districts at all levels of federal, state, and local government is now playing out. The idle hands of those who have spent a decade preparing for this latest round of gerrymandering are being put to work drawing up spreadsheets, crunching census data, and tweaking boundaries. The next ten years of American elections have already happened in the mainframes of supercomputers running simulation after simulation on every conceivable combination and permutation in the game of redistricting chess. And the devil, as always, is in the details. How much do you really know about redistricting in your state? If the answer is not much, well, that’s what the career politicians already huddling behind the scenes with teams of redistricting professionals, attorneys, political scientists, and strategists are hoping for. Democracy dies in darkness. It’s up to us to turn on the light. “Those who cannot remember the past,” George Santayana once wrote, “are condemned to repeat it.”
Benjamin Franklin, at eighty-one when the Constitutional Convention concluded, was the elder statesman and among the most experienced of all the Founding Fathers. He had traveled extensively, observing how governments the world over fail to realize the dream and promise of democracy. He was acutely aware of the responsibility that later generations bore when it came to setting a watchman at the gates through which the people’s elected representatives must pass. “Doctor, what have we got, a republic or a monarchy?” asked Elizabeth Willing Powel as Franklin left Independence Hall on the final day of the Constitutional Convention in Philadelphia in 1787. “A republic,” he replied, “if you can keep it.”
Acknowledgments
It’s rare for an academic to be given the opportunity to write a book that will be read by anyone other than their fellow academics. When they are, it’s usually because they’ve received the advice, guidance, and assistance of numerous people along the way. Oh, and luck, too. A whole lot of luck.
I was fortunate enough to begin my academic career under the mentorship of an extraordinary group of professors at the State University of New York at Buffalo. My thanks to Jim Battista, Jim Campbell, Munroe Eagles, Chuck Finocchiaro, Steve Halpern, Gregg “Bagel” Johnson, Chuck Lamb, the late Franco Mattei, Harvey Palmer, Claude Welch, and, most of all, to Josh Dyck.
Fifteen years ago, I walked into Josh’s office and told him that I didn’t want to be a professor. I’d enrolled in graduate school with no clear career goal in mind, but simply because I loved political science. That love had been kindled by my high school politics teacher, Patrick Walsh-Atkins, at Bromsgrove School in the United Kingdom. His classes on American government inspired me to move three thousand miles away from home and family to follow the American Dream. “Give me a year,” Josh replied, “and I’ll do my best to change your mind.” He did.
I’d also like to express appreciation to my wonderful colleagues, current and former, at the University of North Florida. Matt Corrigan, who took the chance of hiring a twenty-six-year-old British dude to teach American politics. He saw the potential in me that I was unable to find in myself. Adrienne Lerner, who encouraged me to dream big and then helped make that dream a reality. I’ve never met a more supportive and dedicated colleague and friend. Mike Binder, who still laments my retirement from the game of golf. And Georgette Dumont and George Candler, to whom I’ll merely say: “pip pip, socialism!” My thanks also to Mary Borg, Lauren Chartier, Natasha Christie, Sierra Ejankowski, Sean Freeder, Josh Gellers, Paul Harwood, the late Anne Hopkins, Emily Maiden, Pat Plumlee, David Schwam-Baird, Enrijeta Shino, Henry Thomas, and Pam Zeiser. You’ve made coming to work every day this past eleven years a pleasure.
This book became a reality thanks to the hard work of numerous people. These include my agent, Ian Bonaparte, my editor, Victoria Wilson, her assistant, Marc Jaffee, publicist Michiko Clark, art director Kelly Blair, and production editor Nora Reichard.
Finally, and most importantly, I’d like to thank my family—your boy did good! My parents, Mike and Hilary, my grandmother, Maisey, who passed away during the writing of this book at the age of 101, and my brother, Will. And most of all, my wife, Saundra. Thanks for coming on this crazy journey with me.