Opinion: Gerrymandering on steroids is the new normal

Editor’s Note: David Daley is the author of “Ratf**ked: Why Your Vote Doesn’t Count” and “Unrigged: How Americans Are Battling Back to Save Democracy.” His work has appeared in The New Yorker, The New York Times, The Atlantic and The Washington Post, among other publications. The views expressed in this commentary are his own. View more opinion on CNN.

In a redistricting cycle filled with indecent affronts to democracy, the US House of Representatives map drawn by New York Democrats is among the most obscene partisan gerrymanders nationwide. It threatens to wipe away four competitive districts, and in a state that awarded nearly 61% of the vote to President Joe Biden in 2020, all but guarantees 22 of 26 House seats will go blue.

It is indefensible by most any standard, which is why both a lower state court and an appellate state court have struck it down. It is expected to be appealed to the state’s highest court next.

That’s good news for voters in New York. But combined with redistricting hardball from Florida Gov. Ron DeSantis this week, it might also lock in Republican control of the US House of Representatives for the near future.

Americans are in this dangerous situation because a 2019 US Supreme Court decision incentivized both parties to wildly gerrymander states where they had complete control, and because Congress failed to pass voting rights protections this past winter that would have halted this anti-democratic behavior.

This week, the consequences became even more frightening: If blue state courts roll back Democratic gerrymanders, but red state judges rule as partisan ideologues, a pro-GOP bias will be baked into the national map for another decade.

With both parties embracing extreme gerrymanders, the national map, before this week, appeared to have erased much of the pro-GOP bias that distorted the last decade of US House races. After a decade in which the median US House district leaned as much as 5.6% toward the GOP, the national congressional map was looking more balanced than it has in several cycles.

How was this quasi-equilibrium achieved? Largely because Democrats – who spent much of the last decade justifiably furious over GOP gerrymanders that tilted the national congressional map red, and turned swing-state legislatures such as Michigan, North Carolina, Pennsylvania, Wisconsin and Florida into unbreakable Republican strongholds – stopped complaining and embraced aggressive gerrymanders in many of the states they control.

They didn’t have much of a choice. Both the Supreme Court’s decision to keep federal courts out of this battle and congressional inaction on voter protections left New York Democrats – along with those in Illinois, Oregon, Maryland and New Mexico – with two bad options: hypocrisy or unilateral disarmament. Democrats could either fight dirty, or model proper behavior in the states they control, dooming themselves to the wilderness while Republicans reaped ugly gains.

Frankly, neither party had any incentive not to abuse the process in every state where it had the upper hand. And so both did.

Yet something funny happened. Mutual assured destruction worked, sort of, by its own crude, primitive logic. Let’s be clear: A maximally gerrymandered national congressional map is horrific for urban Republicans, red-state Democrats, equitable minority representation, competitive districts and anyone rooting for members of Congress who tackle actual challenges rather than preen for the base.

It’s bad in nearly every way except, perhaps, compared with the previous decade’s map, rigged so Republicans held control in 2012 even when they won 1.4 million fewer votes. In 2014, a 4.5-million voter edge for Republicans led to 247 red seats; in 2020, an almost 4.7 million vote bulge for Democrats created just 222 blue ones.

Of course, we should end gerrymandering, not unleash it everywhere. But after the Supreme Court’s abdication of duty and Congress’ failure to act, gerrymandering on steroids is the inevitable new normal.

Republicans, whose 2011 gerrymanders withstood the entire decade (when they were not undone by state courts, that is), began this cycle with an advantage and improved their position. The GOP fine-tuned maps in Texas, Georgia and Indiana to obliterate suburban swing seats and sandbag red districts threatened by minority population growth. They cracked blue cities in red Tennessee, Oklahoma and Utah. They ran roughshod over new voter-adopted overhauls in Ohio and have done the same in Florida.

Democrats countered more than a dozen new red seats with aggressive gerrymanders of their own. They control fewer swing-state legislatures (again, due to gerrymandering) but maximized their opportunities wherever possible. They grabbed a new district in Oregon; unleashed creative cartography to dismantle red-leaning or competitive seats in New Mexico and Nevada; maintained a gerrymandered 7-1 edge in Maryland; and built a 14-3 advantage in Illinois by gutting several GOP seats.

Even those maps, however, wouldn’t be enough to level the playing field, which is where New York comes in. It approaches similar despicable behavior Democrats complain about Republicans unleashing in states like Ohio.

First, New York legislators engineered the collapse of a nonpartisan redistricting commission established by voters in 2014. Next, they ignored the results of a statewide initiative and handed themselves the power to draw lines if the commission broke down. Then they drew a map that essentially hands Democrats 22 of New York’s 26 seats.

But in a zero-sum political world with single-member districts – and with five seats separating the two parties in Congress – it would almost be ineptitude not to do it.

A lower New York state court – entirely appropriately – condemned the craven process and demanded legislators come together and draw a fair map, as voters intended. Democrats appealed the decision, lost again and expect a different result from New York’s highest court, comprised of judges appointed by Democratic governors.

But if New York’s gerrymander gets policed, and Florida goes wild, the equilibrium disappears.

State courts, on balance, have played a positive role this cycle. State courts in Pennsylvania and Virginia helped enact balanced maps when the two parties could not come to agreement. A Maryland court disallowed a Democratic gerrymander, and the North Carolina Supreme Court unwound GOP gerrymanders. The Ohio Supreme Court – led by a courageous Republican chief justice – has rejected multiple maps for failing to comport with the new nonpartisan criteria.

While a lot of litigation remains underway nationwide, New York is the most important case remaining with the most seats at stake that could be decided before the midterms. It would be the right thing for the lines to be struck down. But when it comes to the national congressional map, the “right thing” would also hand the GOP an unearned, several-seat edge heading into the midterms, with little hope that redder courts in Texas, Florida and Georgia would do the same. New York would be better balanced. Red states would remain wildly unfair.

This is the problem of not having a national standard. It places those who care about fair elections in an untenable position: handing a party that has broken faith with democracy a decade-long edge, knowing what dangers that presents for certification of Electoral College results in 2024 and 2028, or embracing a nominal balance in which fairness has been jerry-rigged by indefensible blue state maps.

This is no way to run a democracy. And it’s one more reason ours is in such peril.