KEY POINTS FROM THIS ARTICLE
— The Supreme Court’s recent decision to stay out of adjudicating gerrymandering doesn’t necessarily change anything because the court had never put limits on partisan redistricting in the first place.
— Republicans are still slated to control the drawing of many more districts than Democrats following the 2020 census, although there are reasons to believe their power will not be as great as it was following the last census.
— How aggressively majority parties in a number of small-to-medium-sized states target incumbents of the minority party following 2020 may help tell us whether the Supreme Court’s decision will lead to more aggressive gerrymanders.
Redistricting: Rucho and beyond
The Supreme Court’s 5-4 decision in Rucho v. Common Cause last month reiterated something that has always been true: There are no court-enforced limits on partisan redistricting. By declaring that such cases are nonjusticiable, the high court decided that federal courts are going to stay out of determining what is and what is not a gerrymandered House map, at least for the time being.
Again, this is not really a change. While the court has suggested at times, such as in 2004’s Vieth v. Jubelirer, that it hypothetically could create standards for determining whether a gerrymander has gone too far, it never actually created such a standard.
It may be that this ruling could allow gerrymanders to become even more aggressive in the future, although it may also be that they already are maximally aggressive. For instance, one North Carolina Republican — whose party authored not just one, but two, effective congressional gerrymanders this decade — bluntly conceded that they drew a map designed to elect 10 Republicans and three Democrats “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.” (In 2018, North Carolina elected nine Republicans and three Democrats, with a pending election do-over in NC-9 coming in September.)
Part of the reason that lawmakers can be so brutally frank about partisan gerrymandering is that using such language seeks to define their behavior as something that is legal and always has been legal –partisan gerrymandering — instead of something that courts have ruled can be illegal: racial gerrymandering.
Courts can still weigh in against districts that constitute racial gerrymanders, which illegally pack minority voters into single districts to make surrounding districts whiter (this can benefit Republicans, given that nonwhite voters are much likelier to vote Democratic than white voters). Because of racial differences in voting, constraints on racial gerrymandering may effectively represent constraints on partisan gerrymandering.
There are reasons to believe both that redistricting after 2020 will be more balanced in the aggregate, but also that when given the opportunity, one-party-dominated redistricters may act aggressively.
Who draws the lines?
First of all, we don’t precisely know exactly how many seats Republicans will hold sway over, how many Democrats will, and how many will be decided through bipartisan or nonpartisan methods. The 2019 and 2020 elections will help finalize partisan control of redistricting in some places.
Following the 2010 elections, Republicans had the power to draw 193 districts while Democrats had the power to draw only 44. So Republicans had much more redistricting power than Democrats, and they used that power to reinforce its then-new majority, which survived without much trouble until the 2018 Democratic wave.
As of right now, that topline is not that much different, according to a post-election analysis by Daily Kos Elections’ Stephen Wolf, a redistricting expert and liberal critic of gerrymandering.
Wolf found that Republicans currently control the redistricting levers in states containing 179 districts while Democrats control only 49. The rest will be drawn by divided governments or through bipartisan or nonpartisan methods (or they are in states that have only a single House member and thus have no need to redistrict).
However, the alignment of line-drawing control has shifted in ways that make the GOP’s current edge less imposing than the one they enjoyed after 2010.
For instance, two of the few states where Democrats actually controlled redistricting after 2010 were in Arkansas and West Virginia; now Republicans control those states, but they already hold all seven seats between them.
Meanwhile, Republicans have lost their dominance in some key places. Pennsylvania and Wisconsin now have Democratic governors, blunting the GOP gerrymandering power from a decade ago (the Keystone State’s Democratic-controlled Supreme Court unwound the GOP gerrymander in advance of 2018).
It is also possible that new reforms will emerge in certain places, or state courts will intervene, as has happened in Florida and Pennsylvania. Michigan, another site of a GOP gerrymander that held up from 2012-2016 but not in 2018, now has a nonpartisan redistricting system and also divided government.
This count on current control of redistricting also does not take into account reapportionment following the census. Speaking of:
According to a late 2018 report from Election Data Services, here are the current projections for the states that will gain and lose seats thanks to population shifts.
Projected gainers: Arizona (+1), Colorado (+1), Florida (+2), Montana (+1), North Carolina (+1), Oregon (+1), and Texas (+3)
Projected losers: Alabama (-1), California (-1 or even), Illinois (-1), Michigan (-1), Minnesota (-1 or even), New York (-2), Ohio (-1), Pennsylvania (-1), Rhode Island (-1), and West Virginia (-1)
As has been the overall trend for decades, the South and West — particularly Florida and Texas — are gaining seats at a rapid rate, while the Northeast and Midwest continue to grow more slowly and lose seats. A big exception to that trend would be California if it indeed loses a district: The Golden State delegation consistently grew from statehood through the 2010 census, when it failed to add a seat, so it has never seen its seat total contract.
The reapportionment projections provide a good jumping-off point to look at some of the redistricting decisions coming after 2020. Here are some possibilities in the states projected to gain or lose seats, a list that allows us to assess redistricting in many of the nation’s most populous states (Michigan and Pennsylvania, both slated to lose seats, were addressed above).
— Assessing the partisan consequences of some of these shifts, if in fact they occur, are easy. For instance, if Rhode Island (-1) and West Virginia (-1) each indeed lose a seat, the Democrats will lose one of their two seats in the Ocean State and the Republicans will lose one of their three seats in the Mountain State. Those losses cancel each other out.
— Alabama (-1) has only one Democratic district as it is, which almost assuredly will be protected as a majority-minority district, so Republicans probably will have to eliminate one of their own members.
— Texas (+3) seems to be becoming less Republican, and the state’s GOP gerrymander came perilously close to breaking in 2018: Democrats picked up a couple of seats and came close to winning several others. Assuming Republicans retain control of the process, it will be interesting to see how they both add seats and protect incumbents, potentially of both parties. For instance, if newly-elected Reps. Colin Allred (D, TX-32) and Lizzie Fletcher (D, TX-7) win second terms next year, Republicans could give them safe seats as a way of shoring up neighboring Republicans and helping preserve the GOP’s overall edge in the delegation, which is currently 23-13.
— The Republican majority in Florida (+2) may be blunted by state-specific reforms. Their previous gerrymander already was, back in 2015, although the state Supreme Court that ordered the change based on a state constitutional amendment passed by voters in 2010 may now be less receptive to acting against a gerrymander.
— Illinois (-1) Democrats, who also controlled the process a decade ago, will be faced with the challenge of eliminating a seat and shoring up some new incumbents. On the current map, Democrats drew IL-6 and IL-14 in the Chicago exurbs as Republican vote sinks, but the GOP’s troubles in the suburbs allowed Democrats Sean Casten (IL-6) and Lauren Underwood (IL-14) to actually win both districts in 2018. Meanwhile, Democrats may be able to reconfigure downstate districts to endanger Rep. Rodney Davis (R, IL-13), who won very narrow victories in both 2012 and 2018, although they probably will also be inclined to help Rep. Cheri Bustos (D, IL-17), whose gerrymandered district is trending Republican.
— California (maybe -1) has a nonpartisan process that undoubtedly helped Democrats this decade: Democrats netted a dozen seats there this decade, creating a lopsided 46-7 Democratic edge in the nation’s largest House delegation. This was after the 2000s, when California’s map was amazingly stable: In 265 individual House elections over five cycles (53 contests per year), only one seat ever changed hands. Though the process is formally nonpartisan, ProPublica found back in 2011 that Democrats found ways to influence the maps in their favor. Republicans might be able to make gains on a new map — or even on the current map as they try to win back some lost ground in 2020 — although the state has become so Democratic that even places where the GOP used to dominate, like Orange County, are trending blue. Some perspective: As recently as 2004, George W. Bush only lost California by 10 points, and he carried much of Southern California outside of Los Angeles County; that included carrying four of the seven counties in the whole state that cast more than 500,000 votes in that election: San Diego, Orange, Riverside, and San Bernardino. By 2016, Hillary Clinton was carrying the state by 30 points, and she carried all the big counties (all 13 that cast 250,000 or more votes). So while the Democrats’ huge edge in the state’s House delegation probably is unrealistically inflated, it may not be.
— New York (-2) also will be trying out a nonpartisan redistricting process next decade. It may be that both the Democrats and Republicans will lose a seat apiece in the interest of fairness.
— Arizona (+1) and Colorado (+1) are competitive states with nonpartisan redistricting systems that favor the creation of competitive district when possible: Arizona’s has been in place for a couple of decades, while Colorado’s is new. So perhaps each will get a new swing seat as part of the growth of their delegations?
— Oregon (+1) is controlled by Democrats, who hold a 4-1 edge statewide. Presumably they will try to make that 5-1 Democratic, although in the process they may also need to shore up the districts of Reps. Peter DeFazio (D, OR-4) and Kurt Schrader (D, OR-5), both of whom occupy districts that are competitive on paper if not necessarily in practice (at least for them).
— If Montana (+1) gets back its second district, which it lost following the 1990 reapportionment, the state might revert back to having a district covering the state’s eastern two-thirds and then its western third; the eastern district would be safely Republican in all likelihood, but the western one could very well be competitive and winnable for a Democrat even if it leaned Republican on paper.
— Ohio (-1) voters approved a constitutional amendment last year to make redistricting less partisan; we’ll have to see how effective it is. But a reasonable compromise between the two parties might involve Democrats getting new, winnable seats centered on Cincinnati and Toledo while Rep. Tim Ryan’s (D, OH-13) Democratic but Republican-trending seat that runs from Akron to Youngstown could be split several ways, potentially making it difficult for Ryan to win reelection in 2022. Perhaps the uncertainty of redistricting provides some of the explanation for why Ryan is trying to raise his profile through a quixotic presidential bid.
— The 2020 election will determine if Minnesota (maybe -1) Democrats will get to control redistricting (they hold the state House and the governorship; Republicans have a narrow edge in the state Senate). If divided government endures, judges may end up drawing the map, as they have done recently in Minnesota.
— In North Carolina (+1), the state’s Democratic-controlled state Supreme Court has just begun hearing a gerrymandering case involving the state’s legislative districts. If Democrats succeed in that lawsuit, perhaps the threat of a similar lawsuit concerning congressional districts might hamstring GOP efforts in that state (or the Democrats might win control of a state legislative chamber, giving them a formal say in the process). North Carolina is unusual in that the governor — Roy Cooper, a Democrat who is up for reelection next year — has no role in redistricting. That was a change made by North Carolina Democrats back in the 1990s, back when moderate-to-conservative Democrats still held a dominant position throughout the South. State legislative Democrats “reason[ed] they would always hold the legislature but voters might occasionally elect a Republican governor,” observed the authors of the 2014 Almanac of American Politics as they described a devastating gerrymander passed by a Republican state legislative majority over the objections of a powerless Democratic governor following the 2010 census. Things change in a hurry.
Beyond these reapportionment changes, it will be interesting to see if partisan majorities in one-party states will crank up their gerrymandering. For instance, assuming the GOP retains control of the process in states like Indiana, Kentucky, Missouri, Oklahoma, South Carolina, and Tennessee, they could attempt to break apart the districts of Reps. Andre Carson (D, IN-7), John Yarmuth (D, KY-3), Emanuel Cleaver (D, MO-5), Kendra Horn (D, OK-5), Joe Cunningham (D, SC-1), or Jim Cooper (D, TN-5), assuming these members are reelected in 2020 (Carson, Yarmuth, Cleaver, and Cooper occupy safe Democratic seats, but first-termers Horn and Cunningham are among the most vulnerable House Democrats). These efforts would generally involve cracking big, Democratic-heavy urban areas into smaller pieces that are absorbed by surrounding Republican-held districts. If Republicans are able to really flex their redistricting muscles after 2020, it may be that it manifests itself in some of these smaller states.
Maryland Democrats, who hold veto-proof majorities in both houses of the state legislature and thus could overrule Gov. Larry Hogan (R-MD) on redistricting matters, successfully eliminated a GOP district in the post-2010 round (which led to one of several lawsuits that the Supreme Court effectively threw out as part of its recent decision). They could try to turn their 7-1 Democratic delegation into an 8-0 majority if they went after Rep. Andy Harris (R, MD-1) on the Eastern Shore. Democrats could have attempted to draw an 8-0 map following the 2010 census, but some of the Democratic members of the state’s delegation didn’t want to potentially risk drawing such a gerrymandered map and then see it backfire.
This sort of dynamic could also emerge in some of the aforementioned GOP-dominated states, in which the self-interest of individual members could come into conflict with larger partisan goals.
Democrats also currently control the process in Nevada and New Mexico, where they may be able to shore up newly-elected members in competitive districts: Reps. Xochitl Torres Small (D, NM-2), Susie Lee (D, NV-3), and Steven Horsford (D, NV-4), assuming they survive 2020.
What happens in some of these small states could help us determine the impact of Rucho. Was redistricting already maximally aggressive, or can it become more so? In the states with one-party rule, we’ll find out.
P.S. In the immediate aftermath of the Supreme Court’s redistricting decision, I appeared on C-SPAN’s Washington Journal to discuss it and other redistricting topics. Click here if you’re curious to hear more about the ruling and the fallout.