The Washington PostDemocracy Dies in Darkness

Opinion New York’s courts stood up to gerrymandering. Congress should, too.

Demonstrators protest against gerrymandering at a rally at the Supreme Court in 2019. (Evelyn Hockstein for The Washington Post)

Wednesday’s decision by the New York State Court of Appeals to overturn the state’s congressional and state Senate maps as unconstitutional partisan gerrymanders is great news for Republicans. It should also spur members of both parties to finally outlaw this scourge upon democracy.

No serious person can deny that the state’s proposed map was a skillful partisan gerrymander. It ruthlessly eliminated one Republican-held seat and redrew three other GOP strongholds such that, had they been in place during the 2020 election, President Biden would have carried them by at least 9.5 points. State Democrats did so with aplomb, crossing mountain ranges, rivers and even the Long Island Sound to advance their cause.

As a one-time redistricter, I appreciated the effort as an artist would applaud a masterpiece. As a Republican and advocate for fair redistricting, it sent shudders down my spine.

The plan’s audacity surely helped its demise. All seven of the justices on the New York court were appointed by Democrats, yet five joined a majority opinion to strike down the plan. (One justice dissented in part because he believed the procedural flaws accompanying the map’s adoption were sufficient to render it unconstitutional, making a substantive finding as to the plan’s partisan effects unnecessary.) My one foray into redistricting 40 years ago ended when a 6-to-1 Democratic majority on the California Supreme Court threw out a plan I drew on a — wait for it — 6-to-1 vote. Losing five members of your own party’s judicial appointees is practically unheard of.

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Still, the victory for democracy in New York is tempered by the fact that other courts — usually dominated by Republican appointees — are rarely so brave. Texas’s GOP gerrymander still stands, as does Georgia’s. Ohio’s Supreme Court struck down a GOP gerrymander because one Republican appointee sided with Democrats, but their refusal to appoint a special master to draw a replacement means the map still tilts strongly to the GOP. Florida’s recently passed plan would likely send 20 Republicans to fill the state’s 28 congressional seats, even though the electorate is split nearly 50-50 along party lines.

The Supreme Court’s decision that partisan gerrymandering does not raise constitutional claims leaves the remedies for legislative gerrymanders up to states. But the Constitution gives Congress the power to regulate elections for federal office. Congress already mandates that all representatives be elected from single-member districts; it can and should change that law to ban partisan gerrymandering forever more.

There are three ways it can do that. First, it can follow the example of other democracies such as Canada and Australia and require states to employ a specific type of expert commission to redraw the lines, subject to clear boundaries that limit the ability to split cities, counties or communities of interest and that protect minority voting rights. Our long history of gerrymandering and partisan gamesmanship, coupled with our uniquely politically administered elections process, makes this approach risky. But it has been used in states such as Iowa and has successfully limited, if not entirely eliminated, political manipulation of district lines.

Congress could also mandate the system used last year to redraw Virginia’s districts. After that state’s redistricting commission deadlocked on partisan grounds, the state’s Supreme Court appointed two special masters — one appointed by each party — to jointly draw the lines. The two, Democrat Bernard Grofman and Republican Sean Trende (whom I recommended to the state GOP), did brilliantly, producing a set of maps that keeps regions and political jurisdictions intact. Their efforts also fairly represent the state’s partisan lean, giving Democrats a majority of seats in normal years and Republicans a chance to take over in years of red waves. That’s the sort of result all Americans deserve.

The final approach would be radical, but still constitutional: requiring states to elect House members by proportional representation. Districts are not constitutionally mandated, so Congress has the authority to abolish them completely. The model here is Switzerland, which is also a federal republic with a bicameral legislature. The Swiss elect their upper house like we elect the Senate, with each canton sending two members by “first past the post” or majority vote. (Six tiny half-cantons elect one member.) The lower house is elected by proportional representation, with the number of members apportioned among the cantons according to population. There can’t be gerrymandering if there are no districts. This system would also reward minority parties in states dominated by one party. There would be more Republicans from Massachusetts or California, for instance, and more Democrats from the Deep South. These people exist; they just aren’t concentrated enough in to carry more congressional districts.

Democracy is too important to be left to politicians’ devices. Citizens are slowly winning the fight for fair districts. We should carry that fight now to Congress and push for national reform so this blight is forever banished from our shores.