On May 6th, Jonathan Cervas, a postdoctoral fellow at Carnegie Mellon, sat impassively in a courtroom in the rural town of Bath, New York, taking notes. A week earlier, the New York State Court of Appeals had upheld an opinion issued by Patrick McAllister, the Republican-appointed presiding judge in Bath, which tossed out the congressional district maps that the State Legislature and the governor had approved earlier this year. Those maps would have created three additional Democratic districts in New York. McAllister had called such gerrymandering a “scourge” on democracy, and appointed Cervas to come up with something better. Now the clock was ticking: Cervas would have about two weeks to submit new maps. The districts had to be geographically contiguous, with a comparable number of residents in each. Ideally, they would fairly represent the interests of voters.
Throughout the day, New Yorkers who had made the pilgrimage to Bath, a town in Steuben County that is closer to Toronto than Manhattan, stepped up to a makeshift lectern and told Cervas how they believed congressional representation in the state of New York could be improved. Dan Hennessy, a thirty-year veteran of the the state legislature’s Task Force on Demographic Research and Reapportionment, who made the trip from Staten Island, submitted his own map, which he said was created with “wholly non-political census data.” Esmeralda Simmons, a civil-rights attorney and the founder of the Center for Law and Social Justice, at Medgar Evers College, in Brooklyn, endorsed the “unity map,” which her organization had drawn with the Asian American Legal Defense and Education Fund and the National Institute for Latino Policy, among others, and which aimed to protect the voting rights of people of color.
The current confusion dates back to 2014, when voters approved a constitutional amendment to take redistricting—a decennial process that determines the size and shape of congressional districts—out of the hands of politicians and into those of an independent commission. But it didn’t quite work out the way voters might have imagined. The commission—created by a compromise between the then governor, Andrew Cuomo, a Democrat, and Republican leaders—was bipartisan, with four Democrats, four Republicans, and two theoretically Independent members. But the two sides couldn’t come to an agreement, and each submitted their own map to the Legislature. Rather than demand that the commission go back and try again, as the law required, the Democratic-controlled legislature simply accepted the Democrats’ maps. A day after the Governor signed off on them, a group of Republican voters sued to have them thrown out.
Those maps not only established new Democratic districts—they eliminated four Republican strongholds. Staten Island, a Republican-leaning district, was appended to reliably Democratic Park Slope, in Brooklyn, which likely would have given the Democratic candidate, Max Rose, a clear path to victory. Parts of (Republican) Long Island were absorbed into (Democratic) Westchester. “The idea that the primarily Yankees-Giants-Rangers fans of the south shore of southern Westchester should be united with primarily Mets-Jets-Islanders fans of Suffolk County, Long Island, makes no sense,” Michael Foley, a voter from Yonkers, told Cervas at the hearing.
The Framers determined that seats in the House of Representatives would be apportioned on the basis of population, and they envisioned redistricting as a way to preserve the integrity of representative democracy as the country’s population changed. A decennial census, the first of which was conducted in 1790, would “enumerate” these demographic shifts. Political parties did not emerge in the United States until the last years of the eighteenth century, so the Framers did not anticipate that the redistricting process could become a tool wielded by officeholders to enhance their political fortunes. “Redistricting, in and of itself, can be democracy-protecting—a way of simply realigning representation,” Guy-Uriel Charles, a scholar of voting and elections at Harvard Law School, told me. “It also provides an opportunity for misalignment. Politicians who have a stake in the process and in maintaining their own political power can’t help but tilt the playing field in their favor.”
In 1812, Elbridge Gerry, the governor of Massachusetts and a member of the Democratic-Republican Party, carved up an electoral district held by rival Federalists in a distinctly contorted way. A political cartoonist thought that the new district, which snaked up the west side of the state, from just outside of Boston to the New Hampshire border, then curved around to the coast, looked like a salamander, and combined “Gerry” and “mander” to get gerrymander. Both the word and the practice stuck.
Although partisan gerrymandering has long been a feature of American politics, it became a national Republican strategy following the 2008 election, in which Democrats swept the White House and both chambers of Congress. The Republican plan, called the Redistricting Majority Project, or REDMAP, was a thirty-million-dollar effort sponsored by the Republican State Leadership Council to gain control over the redistricting process. It was wildly successful. According to the project’s Web site, “Election Day 2010 proved to be an even bigger ‘wave’ election at the state level than anticipated.” Republicans flipped at least nineteen legislative bodies to Republican control and held majorities in ten of the fifteen states that were set to gain or lose U.S. House seats—places where the legislature would play a central role in redrawing a congressional district. The results, the group added, would help “maintain a Republican stronghold in the U.S. House of Representatives for the next decade.” Two years later, in the midterms, nearly a million and a half more Americans voted for Democrats for Congress, but Republicans won a thirty-three-seat majority in Congress.
REDMAP led to the creation of the National Democratic Redistricting Committee, in 2017, an effort spearheaded by former Attorney General Eric Holder. Kelly Burton, the group’s president, told me that the N.D.R.C. was started “to put in place all the things that needed to happen to make the redistricting process more fair.” This largely has meant working to get Democrats elected to state offices in places where the Republican Party controls both houses of the legislature and the executive. (Such political control, it should be noted, is how Democrats in New York State were able to capture the redistricting process.) “When the Republicans won everything in 2010,” Burton said, “they drew very gerrymandered maps that locked in Republican power and minimized Democratic power to the extreme in a way that this country had never seen before. That’s why you saw the congressional delegation in a fifty-fifty Democrat-Republican state like Pennsylvania end up with thirteen Republicans and five Democrats. Same thing in North Carolina—in the next election cycle, it was ten Republicans and three Democrats.”
The other part of the N.D.R.C..’s strategy is to bring the fight for fair maps to the courts. Of more than thirty-one lawsuits challenging redistricting maps this cycle, the majority have been brought by Democrats, many supported by the N.D.R.C. But, with so many state courts also in Republican hands, the results have been mixed.
The redistricting process may seem arcane and academic, even negligible, but it is a foundation of representative democracy. “There are all these voter-suppression laws being passed around the country, but in a lot of ways those are like a death by a thousand cuts that make it harder in incremental ways to vote,” Michael Li, a lawyer at the Brennan Center for Justice, told me. “But gerrymandering is a little bit like a nuclear bomb that levels everything in its place. Because it means that even if you jump through all the hurdles—the I.D. requirements, the elimination of drop boxes, the shortening of voting hours—and are able to vote, your vote doesn’t matter.” Once the basic tenets of democracy—one person, one vote in a government of the people—are subverted, other devolutions follow. This is why Congress is so often out of step with public opinion on issues like gun control and immigration reform. It is what we are now seeing with the curtailing of abortion rights: a group of conservative Supreme Court Justices, three of whom were appointed by a President who was not elected by a popular majority, are poised to overthrow a precedent favored by nearly seventy per cent of the country. And, once they do, conservative legislators in states across the country will be positioned to impose their own deeply unpopular beliefs on their constituents.
“[Samuel] Alito is, like, Dude, just leave it up to the states,” Burton said, of the Supreme Court Justice who wrote the leaked draft opinion that would overturn Roe v. Wade. “O.K., so let’s talk about the state of Ohio. Let’s say that the Roe ruling comes down, and the Ohio legislature adopts extreme abortion measures, even if the majority of Ohioans oppose them. When those voters go to the polls, they are not going to be able to hold those politicians accountable because of gerrymandering. It creates a structural barrier that predetermines the outcome.”
The domino effect of REDMAP may be best illustrated by Wisconsin. In 2010, Republicans won majorities in the state legislature, and Scott Walker, a Tea Party Republican, became governor. The party then brought in REDMAP, which used proprietary software, in secret, to slice and dice the electorate based on all manner of demographic data. Two years later, Republicans won seventy-four per cent of the seats in the State Assembly, with only fifty-two per cent of the vote. Walker and the Republican Legislature then went on to pass a spate of unpopular anti-union and voter-suppression laws. In 2016, Donald Trump became the first Republican to win the state since 1984, an upset that proved crucial to his Electoral College victory. According to Ben Wikler, the chair of the Democratic Party of Wisconsin, “studies afterward found that almost certainly the margin of victory for Trump was accounted for by voters who were shut out of the system because of these laws.” Among other things, a new voter-I.D. law disproportionately affected residents of Milwaukee, many of whom are Black and typically vote Democrat. The Department of Motor Vehicles office is situated outside the city, which meant that, for many Milwaukee residents, it was out of reach.
In 2015, a group of Wisconsin residents sued the state agency responsible for administering elections in an effort to strike down the Republican-drawn maps. After years of litigation, the Supreme Court sidestepped the gerrymandering claim and, in a unanimous decision in 2018, sent it back to the state court on procedural grounds. Then, in 2019, the Court ruled that partisan gerrymandering is a political issue beyond the purview of the federal courts. “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions,” Chief Justice John Roberts wrote for the majority in Rucho v. Common Cause. But this wasn’t the final word on the constitutionality of gerrymandering. The Voting Rights Act of 1965 includes provisions that outlaw racial gerrymandering, a tactic that was first used by Southern Democrats during Reconstruction. Roberts’s opinion, in effect, was saying that the Court would take on only claims of racially based gerrymandering, since they were subject to Section 2 of the Voting Rights Act. Yet, because many people of color tend to vote for Democrats, the decision allowed Republican mapmakers to claim that what appeared to be racial gerrymandering—packing minority voters into a single district, or “cracking” districts with significant numbers of voters of color so that they would be absorbed into majority white districts—was simply partisan gerrymandering
“One of the things that Republicans have done in the cycle is they’ve said, ‘Look, we’re not looking at racial data—we’re only looking at political data, and so you can’t accuse us of racial gerrymandering,’ ” the Harvard Law professor Guy Charles said. “But, of course, everybody knows, especially in certain states like Georgia, the most reliable Democrats are Black Democrats. So if you’re going to reduce the power of the Democratic Party, you’re also going to have to take away some of the majority-Black districts or, in the case of Texas, not add majority-Latino districts even though that is where all the population growth has been. So it is easy to say that a racial gerrymander is a political one, because right now, the fact is that for voters of color, especially Black voters, racial identity and political identity are tightly intertwined.”