A blue wave washed away the Republican House majority on Nov. 6. Also swept out to sea was the conventional wisdom that software-enabled, partisan gerrymandering of legislative districts has gotten so far out of hand that the federal courts, led by the Supreme Court, must correct it.
Lawsuits to have gerrymanders declared unconstitutional, most but not all of them filed on behalf of Democrats, originated in the Republicans’ sweeping 2010 election victory, after which the GOP used its power in the states to skew the decennial post-census line-drawing process heavily in its favor.
In 2012, the new maps produced a GOP majority in the House, even though Democrats won the cumulative popular vote for House races, 48.3 percent to 46.9 percent.
This anomaly would not be repeated — the GOP won both more votes and majorities of seats in 2014 and 2016 — but sent a lasting jolt of fear through the political left.
As federal courts continued to ponder the problem without, yet, a definitive ruling from the Supreme Court, progressives fretted that gerrymandering would unfairly stymie Democrats again in 2018.
“Even a strong blue wave would crash against a wall of gerrymandered maps,” a March report by the Brennan Center for Justice predicted. Democrats would need an unprecedented 11 percentage point popular vote margin to win a “bare majority” of the House, the report said.
Nov. 6 debunked this pessimistic scenario. As of Monday, Democrats had 52.5 percent of the votes cast for the House, 6.7 percent more than the Republicans, and they had won — wait for it — 53.2 percent of the seats (with seven still undecided).
The system’s built-in checks and balances thwarted the GOP’s redistricting chicanery, even though the Supreme Court, after spending much of 2017 and 2018 considering the matter, had refused to rule on it.
The first fail-safe was old-fashioned democracy: Democrats mobilized their supporters and got them to the polls. Second, political evolution occurred: Suburban districts in GOP-run states such as Michigan and Georgia that were created to favor a pre-Trump Republican Party turned against the post-Trump edition. And third, Pennsylvania’s state supreme court overturned that state’s especially egregious GOP gerrymander.
Not only did the Democrats conquer the GOP’s supposedly invulnerable gerrymanders, but the voters also took additional preventive measures to make heavily biased plans less likely to be imposed again, by either party, in future elections. (The Brennan Center, it should be noted, supported these as well as litigation.)
The reform seems especially consequential for Ohio, where the GOP gerrymander “held” this year. Democrats got only four of the state’s 16 House seats despite winning 45 percent of the vote.
Republicans retained the governorship and legislature but, under the new, law no 10-year map could be approved without a specified minimum of support from the minority party in the state government.
Another GOP-gerrymandered Midwest state, Wisconsin, imposed a different sort of check: divided government. Newly elected Democratic governor Tony Evers can veto any plans the Republican legislature comes up with after the 2020 Census. This may render moot the long-running constitutional challenge to Wisconsin’s state legislative district maps, which the Supreme Court recently considered but sent back to lower courts for further proceedings.
Overall, it’s a happy ending to a story that might well have concluded with extreme partisan gerrymandering continuing unchecked, thus making it harder for federal judges to resist taking on the subjective task of deciding how much partisanship is too much — under a Constitution that does not enshrine proportional representation in the first place. And that would be a formula for the politicization and corruption of the federal judiciary.
To be sure, two notorious partisan gerrymanders for House seats “held,” with no short-term remedy in sight: North Carolina’s pro-GOP gerrymander, which yielded a 10-to-3 Republican-to-Democrat House delegation, and Maryland’s pro-Democratic one, which produced seven Democratic representatives and a single Republican.
Divided government offers no help in either state. North Carolina’s Democratic governor, Roy Cooper, lacks the power to veto the GOP state legislature’s next map. Maryland’s Republican governor, Larry Hogan, has the power to veto but lacks the votes in the Democratic Maryland General Assembly to sustain it.
Challenges to both are still percolating in the lower federal courts, with a three-judge appeals court panel having struck Maryland’s map down in an opinion released shortly after the election.
Still, this is an ugly situation in two states for what may be only one more election cycle — not a national crisis.
At issue are a total of 21 House seats, only a handful of which would change hands under more equitable maps.
The stakes are too small to justify the risks of involving federal courts in this sordid political business.
America’s partisan gerrymandering problem is real, but it’s on its way to being cured, with no need for federal judicial intervention. And if that intervention is not necessary, it’s probably not proper.