A progressive take on states’ rights can come to the rescue.
Progressives have long looked to federal courts to guard the rights of racial minorities and dissenters. But that protection is weakening. Faced with the enormous injustice of partisan gerrymandering, the Supreme Court last month permitted politicians drawing election district maps to discriminate by party and even potentially mask their racial “packing” and “cracking” as mere partisanship. To fill this growing gap, reformers should take an unexpected route: states’ rights.
Chief Justice John Roberts wrote an opinion that allowed two gerrymanders, one committed by Republicans in North Carolina and one by Democrats in Maryland, to stand. His reason? He could not find a standard to judge when an offense had occurred. He rejected a considerable body of empirical research, including suggestions by my colleagues and me in an amicus brief.
Federalism, in which regional governments retain considerable power, has been invoked in the past to take away representational rights. But a local approach, properly applied, can also restore them. In a stinging dissent, Justice Elena Kagan pointed out that where the Supreme Court had failed to define and regulate partisan gerrymandering, four lower federal courts had succeeded.
State courts can do so, too — without federal approval. The elections clause of the Constitution gives states broad authority over redistricting as long as the actions do not run afoul of federal law. Chief Justice Roberts conceded that states can act on their own by “actively addressing the issue through state constitutional amendments and legislation.” Now that Republicans and their designates control the Supreme Court, the Senate and the presidency, reformers should embrace what Heather K. Gerken, the dean of Yale Law School, calls “progressive federalism.”
The Princeton Gerrymandering Project, which I founded, has investigated federalist approaches to redistricting reform. We found 27 instances in which a district map was overturned on the basis of state law. Recently, Pennsylvania’s Supreme Court overturned an unfair congressional map, citing the state Constitution’s free and equal elections clause, a phrase that is also found in 27 other state Constitutions.
And 47 Constitutions prohibit government discrimination based on political viewpoint, a principle also found in the First Amendment, which Justice Kagan has argued should protect partisan voters. Drawing a district’s boundaries to dilute a voter’s influence violates the principle of equal protection under the law as found in the 14th Amendment — and in 24 state Constitutions.
The use of federalism to protect voter rights will be tested in a trial this month in North Carolina, where General Assembly districts are being challenged as a partisan gerrymander. Since North Carolina law does not require the governor’s approval for maps, state court may be voters’ best and last chance at fair districts there.
Proving the case should be straightforward. Computer simulations can quickly explore thousands of alternatives to determine whether a map is an extreme partisan outlier. For example, in the Supreme Court case, which concerned a congressional map, Jonathan Mattingly, an expert witness, demonstrated that one congressional districting plan was more extreme than more than 99 percent of over 24,000 possible alternatives that honor city and county boundaries. Simpler mathematical formulas, which detect inequities of opportunity and outcome, can also help diagnose astate legislative map as extreme.
These technologies will soon be within reach of nearly everyone. Thomas Hofeller, a redistricting expert who died recently, drew North Carolina’s gerrymander. He was a Picasso of partisan maps. But thanks to data-sharing projects like OpenPrecincts and the Public Mapping Project, as well as free software like Dave’s Redistricting and PlanScore, citizens in every state will be able to draw their own maps — and expose partisan malfeasance the moment it emerges.
Federalism can also be imposed by voters directly. In 2018, redistricting reform initiatives passed in Colorado, Michigan, Missouri and Utah. These reforms earned 8 to 19 percentage points more support than the Democratic vote share in statewide races, showing that reform has bipartisan support.
The Colorado and Michigan initiatives establish independent redistricting commissions, in which passing a plan requires votes from independents or members of both parties. The political scientist Alex Keena and collaborators have shown that independently drawn maps are more balanced than maps drawn by either party alone. These commissions can also ensure representation for racial minorities and other communities. Citizens can change the law in the 24 states that allow voter-initiated ballot measures, and local reformers are now working to qualify such a measure for the ballot in Arkansas.
The spoils from gerrymandering are enormous. After a wave election in 2010 favoring Republicans, Republican-drawn gerrymanders in 10 states tilted the balance of power in Congress by nearly 20 seats, a modern high, and took hundreds of legislative seats out of contention.
With increased local power in the redistricting cycle of 2021, Democrats may be tempted to play tit-for-tat, imposing their own gerrymanders. But a proposed constitutional amendment that would have insulated Democrats from voters failed in New Jersey, in part because of popular anger. Rather than reducing electoral competition further, Democrats should seek representational balance by taking the high road of reform. They would be in step with over 70 percent of Americans who agree that gerrymandering should be curbed.
In states without the initiative process, legislators themselves will occasionally agree to give up power. The New Hampshire legislature has sent a reform bill to Gov. Chris Sununu. The Virginia legislature is considering a constitutional amendment for the 2020 ballot, though perhaps not entirely out of altruism: The current Republican majority may lose seats and fall victim to a future Democratic gerrymander.
A final route to reform uses the governor’s veto to check legislatures. Maryland has a Republican governor, counterbalancing the Democratic legislature. Wisconsin, site of one of the most extreme Republican gerrymanders in the nation, now has a Democratic governor. Depending on three competitive governors’ races this November, bipartisan control may spread to Kentucky, Louisiana and Mississippi.
Putting all federalist routes together — courts, voter initiatives, laws and elections — I estimate that reform is actually possible in the vast majority of states, even without the Supreme Court’s help.
In biological systems, my other area of expertise, self-correction prevents living systems from going off-kilter. If we don’t sweat, we overheat. When cells disregard the boundaries of the organ where they belong, the result is cancer. So too in democracy: Without a mechanism to ensure fair districts, a political party can ensconce itself in power indefinitely. By introducing self-correction mechanisms, we can reverse the erosion of faith in democracy that comes from gerrymandering.