Partisan Gerrymandering: Courts Should Keep Out of the Debate By Hans A. von Spakovsky & Michael Watson
Partisan Gerrymandering: Courts Should Keep Out of the Debate
Surprise: The supposedly nonpolitical bill to change how districts are drawn would … help Democrats.
For the past few years, liberals have been pushing the courts to declare that partisan redistricting — the consideration of politics when drawing the boundaries of legislative districts — violates the Constitution. In fact, we are awaiting a decision from the U.S. Supreme Court on this issue in two cases out of Maryland and North Carolina.
We hope that the Court will refuse to involve itself in the political thicket of the redistricting process. Engaging in politics does not violate the Constitution. Besides, the solution to gerrymandered districts should come from state legislatures, not the courts.
The allocation of representatives in a state legislature or in the U.S. House of Representatives is a fundamental political question that cannot be resolved without political considerations. Democrats know this, which is why they are demanding major revisions to the way elections are held for the U.S. House of Representatives in their H.R. 1 bill — major revisions they could exploit to increase their political power. Funny, they never complained about partisan redistricting that favored the Democrat party when they controlled a majority of state legislatures.
H.R. 1, the For the People Act of 2019, passed the House in March on a party-line vote. It would take away the constitutional authority of state legislatures to draw the boundaries of their congressional districts and would require states to set up supposedly “independent” redistricting commissions. The Democrats and their allies claim that this provision would ensure that congressional redistricting, when considered on a statewide basis, would not “unduly favor or disfavor any political party.”
It wouldn’t? A purportedly “independent” redistricting commission already draws congressional districts in California, and that state’s “citizens redistricting commission”—explicitly “grandfathered” by H.R. 1 — drew more unrepresentative districts than did partisan Republicans in Texas.
A recent report by the Capital Research Center (CRC), “The Myth of Nonpartisan Districts,” demonstrates this using real-world election results for the House of Representatives. CRC investigators applied a simplified version of the procedure many countries use to allocate their representatives to the European Parliament, a proportional representation formula known as the “D’Hondt method.”
If one takes the stated view of H.R. 1’s authors, then a state with multiple congressional seats “should” elect a delegation of representatives whose Democratic-to-Republican ratio more or less matches the proportion of the total votes cast in the state for Democrats and Republicans. In other words, liberals are pushing the idea that the Constitution guarantees proportional representation to the political parties — an absurd notion.
But going with that argument, how did California, long a model for left-of-center electoral “reforms” — including independent redistricting commissions, top-two primaries, and extended voting periods — perform on that standard? Exceptionally badly, election after election. In all the election cycles studied, California returned more Democrats than would be proportional, by at least nine percentage points — five of its 53 seats — in each election.
In its 2018 election, California produced a dramatically disproportionate result: It returned the Democrats an “extra” ten seats relative to the statewide vote proportion, a boost of 18 percentage points to Democrats compared with their vote share. Meanwhile, the partisan gerrymander-ers in Texas sent only four “extra” Republicans, boosting the GOP less in absolute terms and as a share of the state delegation than California’s purportedly nonpartisan system boosted Democrats.
Interestingly, given the Democrats’ insistence that H.R. 1 must be passed in order to remedy “Republican gerrymandering,” the report found that the present Congress already has essentially the same partisan breakdown that it would have if the 2018 vote totals had been run through a D’Hondt allocation calculator to allocate state congressional delegations: The Democratic caucus would have 235 members, the exact number that it has today.
That outcome was helped along by one little-remarked effect of attempting to maximize a party’s seats by drawing advantageous districts: If political winds change, a district map drawn in one party’s favor might end up backfiring — the “dummymander.” In 2018, that fate befell New Jersey Republicans. Their formerly helpful district maps with suburban voters distributed in many districts returned four more Democrats than a proportional vote would have, as suburban voters who had previously supported Republicans defected to Democrats amid a changed political environment.
While discussion in the metropolitan-elite press has focused on Republican-controlled states such as North Carolina, Democrat-drawn district lines in Connecticut and Massachusetts successfully prevented the GOP from winning a single seat in either of those states for an entire decade, despite vote proportions suggesting the Republicans “should” have won seats in those states each year.
Now, this is not to recommend actually adopting European-style proportional representation, which violates fundamental principles of American democracy and provides political parties with more rights than individual voters. If it were actually used in a real-world U.S. election, that change would probably cause voters to change their behavior. If proportional representation were adopted, both parties would probably splinter unpredictably into competing independent factions, creating even more gridlock.
Instead, the study by the Capital Research Center shows that the proposals demanded by H.R. 1 are not in the interest of increasing the representativeness of Congress. Instead, they advance the political power of the Democratic party and its aggressive, well-funded litigation machine.
What this experiment shows is that there is no “scientific” way to determine how communities should be represented and how political ideals should be contested. Claims that this or that system for drawing the boundary lines of state and congressional districts is “nonpolitical” are a myth.
Hans A. von Spakovsky, a senior legal fellow at The Heritage Foundation, is a co-author of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama’s Enforcer: Eric Holder’s Justice Department. Michael Watson is the research director for Capital Research Center and the managing editor for InfluenceWatch.org.
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