Texas wants to gerrymander its congressional districts. What should we do about it? Gov. Hochul wants to maximize Democratic congressional districts to match what Texas Republicans are trying to do there. Some in New York complain that’s improper gerrymandering.
The battle with Texas isn’t about Texas, or state legislatures; it’s about Congress. Gerrymandering is not about funny lines. It’s about trying to maximize one party’s representation and minimize the other’s.
If New York plays fair and Texas doesn’t, that doesn’t make Congress fairer or less gerrymandered. It makes it worse.
When our country was founded, states elected congressional delegations at large so that one party got all the seats.
But that meant voters in minority districts were ignored, and didn’t get representatives who worked for their interests. In response, Congress required that we vote separately for representatives in each district. That improved representation within states but led to battles between the states. If every state drew lines so that both parties were fairly represented, the result in Congress should be reasonably fair. Political scientists and mathematicians have developed precise standards that measure whether the lines are fair.
New York didn’t adopt such a standard and did adopt a system that can easily be hijacked by partisan considerations. Worse, the U.S. Supreme Court under Chief Justice Roberts also refused to adopt a standard for clean and fair districting. As a result, there’s no one standard against which all the states’ districting plans can be measured. Only a national standard can really solve the problem.
Republicans hated the Supreme Court under Chief Justice Earl Warren. But that Court understood that politics was not going to solve districting problems. At the time states were creating districts with different numbers of people so that poorly populated districts had more power than very populous districts. But the districts which were overrepresented liked it that way and had the power to keep it that way. So, the Warren Court said that was inconsistent with the Constitution, that the Constitution requires one person per vote. That of course mattered and forced a major revision of legislative districts all over the country.
But state legislatures realized that there was a way to get around one person per vote – by gerrymandering, or “stacking” and “cracking” the other party’s votes. They stack, or concentrate, as many of the opposing party’s voters into as few districts as possible, creating districts as close to 100% single-party districts as possible, thus wasting most of their votes, so that party won’t have enough votes left to win a majority of the districts. Then the party controlling the state legislature spreads, or “cracks” the other party’s left over voters among the remaining districts in numbers that the ruling party can overwhelm. With those techniques, it’s not hard to turn a loss at the polls into a victory in representation.
But the Supreme Court wouldn’t buy any of the precise standards for measuring the extent of gerrymandering, or require fair districting in any form. As a result, I’m for those who want to fight fire with fire. If the Court were willing to solve the problem with a fair and uniform national rule, great. Until then, I’m most disappointed with the Court and would go with state efforts to get fair representation in Congress, where crucial decisions are made, funny lines or not. Texas shouldn’t be able to gerrymander America.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran. He enjoys the help of his editor, Jeanette Gottlieb
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