The subhead on a now-infamous 2009 op-ed (paywall) by Republican operative Karl Rove detailing a plan to redraw district lines to make it easier for GOP candidates to get elected and stay in power succinctly summarized the goal: “He who controls redistricting can control Congress.”
Turns out Rove was right. Republicans netted 16-17 seats in the current Congress based on a systematic advantage that includes partisan redistricting, according to a report released last month by New York University’s Brennan Center. To put that number in context, Democrats need 24 seats to regain control of the House of Representatives in 2018.
Now, in Gill v. Whitford the US Supreme Court is hearing arguments that could determine whether the practice of partisan redistricting, or gerrymandering, violates the Constitution. The case could reshape how Americans vote for their political representatives.
What is gerrymandering?
Gerrymandering is a fancy word for redistricting on partisan lines, or as journalist Bob Garfield put it on On the Media: “The art of redrawing congressional districts in order to favor, or screw, one party over another.”
The purported aim of redistricting is to make the voting for Congress and state legislatures more democratic by refining district lines every 10 years as community demographics shift, per federal law. But this mechanism has been used for decades for the very undemocratic goal of manipulating the voting pool to bolster a particular party, often whichever is currently in power.
Gerrymandering is achieved by either “cracking” or “packing” voters into districts. Cracking entails drawing lines to ensure the opposing party’s voters are divided among as many districts as possible, lessening their chance of achieving a majority. Packing refers to cramming as many voters from one party into as few districts as possible, so that the votes are hyper-concentrated.
While partisan redistricting in the US not new—the practice dates back to the 1800s—the precision with which political leaders can choose their own voters has become increasingly sophisticated. Through strategic gerrymandering of districts, politicians who are already in power can now essentially choose their voters. And the GOP has gotten particularly good at it.
How did we get here?
In 2008, Republican strategists—reeling from the party’s decisive defeat in the presidential election of Barack Obama—realized that 2010 presented the GOP with a unique opportunity to wrestle back political control. It was both a census year—when district lines are redrawn—and also an off-year election, which, in the US, tends to favor whichever part does not control the White House and/or Congress.
What came next was an “audacious Republican plan” to create supermajorities for conservative candidates and policies in otherwise blue and purple states. David Daily, author of the book Ratf**ked: Why Your Vote Doesn’t Count, told Quartz in an interview this summer that the strategy, called REDMAP (short for “the REDistricting MAjority Project”), was ”so elegant in its simplicity that it’s startling that it hadn’t been used that way before.”
The GOP focused on capturing state legislative chambers in 2010 with the intent of controlling how the new district lines were drawn in 2011 following the nationwide census. Republicans won about 700 state legislative seats in 2010, but what especially mattered were the 107 seats in 16 states that flipped control of state legislative chambers for the GOP. Those included the traditionally close swing states of Pennsylvania, Michigan, Ohio, North Carolina, and Wisconsin.
What came next was what American University law professor Herman Schwartz has called a “gerrymandering orgy,” resulting in a “bizarre menagerie of electoral districts shaped like snakes, dragons, and other exotic creatures that make a travesty of democracy.”
Here’s how the numbers shook out in 2012, in REDMAP’s own words:
Pennsylvanians cast 83,000 more votes for Democratic US House candidates than their Republican opponents, but elected a 13-5 Republican majority to represent them in Washington; Michiganders cast over 240,000 more votes for Democratic congressional candidates than Republicans, but still elected a 9-5 Republican delegation to Congress. Nationwide, Republicans won 54% of the US House seats, along with 58 of 99 state legislative chambers, while winning only 8 of 33 US Senate races and carrying only 47.8% of the national presidential vote.
The result is that states that are politically divided are not seeing that political diversity reflected in their state houses or congressional delegations.
What comes next?
Today in the US, about 48% of registered voters identify as Democrats or lean Democratic while with 44% identify as Republican or lean Republican, according to the Pew Research Center. Yet Republicans control more than two-thirds of state legislative chambers, in part because of the party’s success with its REDMAP strategy.
The Supreme Court’s announcement that it would hear Gill v. Whitford represents the first time in more than a decade that America’s highest court will take up the issue of partisan gerrymandering.
In previous cases, Daley says, the court has not been willing to accept the role of arbiter of what it has called an inherently political process. But now experts say that we can use available data to calculate ”efficiency gaps” in gerrymandered districts—a new standard which counts the number of votes each party “wastes” in an election to determine whether either party had a systematic advantage in turning votes into seats. Being able to quantify the impact of gerrymandering may give the court the impetus to weigh in more directly.
Even if the Supreme Court rules against partisan redistricting, any large-scale changes would still have to wait until 2021, following the 2020 census. Should the court decide otherwise, it would give Republicans time to keep strengthening district lines in the party’s favor. Democrats are gearing up for the fight to come.
“It’s not a silver bullet, and it’s not a cure-all. But [a SCOTUS ruling] would certainly draw a red line for those in state legislatures who want to use redistricting to give themselves an advantage,” Daley said. “We’re in a very dangerous place. As far as a legal fix goes it could be now or never.”