Two wrongs may not make a right, but if all you’re concerned about is winning, that second wrong could be exactly what you’re after. That seems to be the logic behind what Democrats in the New Jersey legislature are thinking as they attempt to push through a nakedly partisan gerrymandering plan for state legislative seats.
The question is, should Democrats be as ruthless as Republicans when they have the chance, and do the same thing they’ve decried so often? It turns out to be a complicated question.
Right now we have a situation where Republicans have been far more aggressive in using partisan gerrymandering in drawing both congressional and state legislative districts where they're in control than Democrats have. So the New Jersey legislature has decided that they'll be just as merciless. In addition to giving legislators more influence over the makeup of the commission that draws district lines, their proposal would set out some innovative requirements for the how those lines would be drawn. Slate's Mark Joseph Stern explains:
It would require half of legislative districts to favor Democrats, and half to favor Republicans—but at least 25 percent of districts would have to be “competitive.” That might be reasonable if the measure defined competitiveness fairly, as a district evenly divided between Democrats and Republicans. It does not. Instead, a district would be “competitive” if its party composition is within 5 percentage points of the statewide average vote for president, senator, and governor over the past decade.
That number likely gives Democrats a 55 percent majority. So a district with a Democratic majority from 51 to 61 percent would be considered competitive. To understand how the map would operate in practice, consider the state Senate, which has 40 seats total. Democrats would start each election with 20 safe districts. It could then compete in up to 10 more districts where Democrats outnumber Republicans. The map is a recipe for a permanent Democratic supermajority; an analysis by the Princeton Gerrymandering Project found that Democrats could theoretically capture 70 percent of legislative seats with just 57 percent of the statewide vote.
This certainly seems like a violation of every argument Democrats have been making recently about fair representation, not to mention their fundamental belief that every citizen not only has a right to vote but should at least have the opportunity to have that vote mean something. When Democrats see the moves Republicans have taken in places such as Wisconsin, Michigan and North Carolina, it enrages them not just because it means Democrats will lose but also because it’s offensive to important principles they hold.
That’s why the measure is being opposed by Phil Murphy, the state’s Democratic governor, as well as former attorney general Eric Holder, who now heads an organization advocating for voting rights, and liberal groups such as the American Civil Liberties Union. “I’m a proud Democrat, let there be no doubt,” said Murphy. “I want to win stuff fair and square, and this is not.”
The simplest argument in favor of this kind of proposal is that if Republicans aren't going to fight fair, Democrats shouldn't either. Look at what just happened in Wisconsin: Republicans pushed through a series of measures limiting the power of the incoming Democratic governor, Democrats raised a big stink, and today outgoing Gov. Scott Walker signed the bills. Democrats retained the moral high ground, and what do they have to show for it? Pretty much nothing.
There’s another somewhat more sophisticated argument in favor of the New Jersey legislators, one suggested by Kevin Drum: “This is the only thing that will ever get the Supreme Court off its butt to do something about gerrymandering.” In other words, it’s a bit of strategic envelope-pushing that could produce a fairer system in the end. The court has never struck down a partisan gerrymander, though it recently heard a case involving the question and put off making a decision. As long as the five conservative justices see partisan gerrymandering as something that helps Republicans almost exclusively, they’ll never strike it down.
One could contend in response that they’re unlikely to do so anyway, especially since even if Democrats in a state like New Jersey undertake some savage gerrymandering, in the country as a whole Republicans will still do it more often.
On the other hand (and yes, we've got of lot of hands going), if partisan gerrymandering is wrong, then it's wrong. Democrats should oppose it not because doing so will help them make some other argument about a related issue, but just because that's what they believe. Being principled is important even if you don't get a lot of political gain from everyone knowing you're the principled ones. And you don't — Republicans have no principles at all when it comes to representation and democracy, and they've paid precisely zero price because of it.
But that doesn’t mean Democrats' principles will inevitably cause their defeat. Just this year they used voter initiatives to strike down felon disenfranchisement in Florida, create independent redistricting commissions in Colorado, Michigan and Utah, and pass automatic voter registration in Maryland, Michigan and Nevada. They’re making progress, even if it isn’t easy to do so while holding on to your belief in democracy.