Should Partisan Gerrymandering Be Outlawed?

Interviews by Amy E. Schwartz

Should partisan gerrymandering be outlawed?

Yes. It is a complete distortion and abdication of what a republican form of democracy is supposed to be. To use the cliché, in a republic, voters choose representatives to represent them. Partisan gerrymandering turns it around so that the representatives choose the voters. It should be against the law. 

Why is gerrymandering so persistent, then? 

The current state of the law is that partisan gerrymandering is allowed, but racial gerrymandering is not. I can’t read the justices’ minds, but I suspect that most are reluctant to get involved in a subject that pisses off a lot of politicians. Also, there’s a widespread belief that partisan gerrymandering works better for Republicans than for Democrats, and this is a partisan Supreme Court.

Back in 2004 I co-wrote an amicus brief with Brookings scholar Thomas E. Mann in a case about Pennsylvania called Vieth v. Jubelierer. There was a vigorous debate in the Supreme Court about partisan gerrymandering, and the court ultimately voted 5-4 to allow the practice. Justice Anthony Kennedy provided the fifth vote, and his opinion said, basically, it’s too bad we have partisan gerrymandering, but we can’t do anything about it, because we don’t have an objective standard to apply to determine when it’s crossed a line. But Kennedy said he’d be open to reconsidering his position if we could find a standard that was consistent, applied across states and was relatively easy to understand. 

Voters should pick their representatives, not the other way around.

So I and many other people then spent years working to develop such a standard. It was used to challenge a Wisconsin map in a case the court took up in 2017. Kennedy was still on the bench, and this answered every one of his objections. He voted to push the case off to the next year, and then he retired. Chief Justice John Roberts ridiculed the whole effort as mumbo-jumbo—although it wasn’t a standard that you’d need a degree in physics or advanced econometrics to understand—and used it as an excuse to say, yet again, that we can’t do anything about partisan gerrymandering.  

Does gerrymandering tend to benefit Republicans or Democrats?  

Generally speaking, it benefits Republicans, for the simple reason that there are currently more states with completely Republican legislatures and governors. States that are set up structurally so that they have the opportunity to gerrymander are more likely to be red—not exclusively; Illinois is an exception. Until now, more Democratic states than Republican states have had nonpartisan redistricting commissions. California was a good example. In some states where there have been commissions, Republicans have either disallowed them or gone around them. 

People who support the creation of nonpartisan commissions to draw redistricting maps are generally willing to sacrifice their self-interest for fairness, and that includes many Republicans. They did it in Iowa, and it’s something of a model. 

Are we in a gerrymandering arms race?

Of course. It’s a rarity—not illegal, or unconstitutional, but rare—to have a round of redistricting in the middle of a decade. Traditionally, you have a census, you look at populations and allocate seats based on population shifts, and then you draw up a new redistricting plan. Doing it mid-decade is an innovation, and it’s basically happening because President Trump worried about backlash in the midterms and ordered Texas to redistrict immediately with the hope of getting rid of five Democratic seats, mostly held by people of color. California Governor Gavin Newsom responded by saying, well, if you’re going to distort the election process despite what voters want, we’re going to respond in kind.

Will it be self-correcting? We’re seeing some states, such as Indiana, pushing back, saying they don’t want to redistrict. Or we may see so many states on both sides engaging in extra redistricting that the effect is a wash. 

The actual election results could also backfire, defying what the gerrymanders were supposed to accomplish. There’s been a lot of unease in House Republican ranks after the election result in a recent open seat in Tennessee. The Democrat didn’t win, but the district had gone for Trump by 21 points in 2024 and that Republican advantage dropped by more than 10 points, making it a much closer race. That could be enough of a swing to hand losses to Republicans who won their seats in the House by 10 percent. And if you’re a Republican who won by a comfortable 15 percent, and if a new round of mid-decade redistricting creates more Republican-leaning districts but cuts your expected margin to, say, nine percent, you’re not going to be thrilled with that in the current environment.

How does redistricting for racial reasons intersect with all this? The Voting Rights Act has been a guardrail against doing away with majority-minority districts, where redistricting was done to try and provide a legitimate voice to minority voters. This legislation was upheld over and over by courts, including this Supreme Court. If the Supreme Court does what we expect and eviscerates Section 2 of the Voting Rights Act, or leaves it impotent, we could see eight to ten seats that are in majority-minority districts disappear. 

Race and partisanship are intertwined in many ways. Democrats tend to be concentrated around metropolitan areas that also have greater minority populations. The Voting Rights Act provided for majority-minority districts in such cases, but the temptation in redistricting, even for Democrats, is to break them up: If a district is 70 percent minority, for example, you can dilute it down to four districts that will each be carried by a 10-point majority.  

We’ll have an interesting test case soon on how far the court is willing to go. They’ve just embraced the Texas mid-decade redistricting map, even though a panel of judges for the appeals court—with a Trump-appointed judge writing the opinion—had overturned it, saying this was very clearly illegal racial gerrymandering. The Supreme Court gave a middle finger to this appeal’s court’s decision, reversing it in a preliminary decision with no deliberation. Its reasoning could be paraphrased as, “Well, it does screw minorities, but only because they’re Democrats.” 

Next the court will probably take up the California map, which was redrawn for explicitly partisan, but not racial, reasons, via a referendum that got overwhelming support in the state.

Gerrymandering can benefit minority communities. Does it have any effect on Jews? It depends on how we want to define a benefit. It has an impact on the broader sense of fairness, and fairness to minority groups, that we count on as part of our deeper value system. Among other things, if what we see is an attack on the representation of some minorities, we know what history tells us: If they go after one minority, they’re coming after Jews too.

INTERVIEW WITH GALE KAUFMAN 

Should partisan gerrymandering be outlawed? | No

Should partisan gerrymandering be outlawed?

No. Not right now, anyway. I realize that the word gerrymandering has never had a positive connotation. But we’re in a time nobody could have foreseen, when there are no norms left, and when the president of the United States is personally recommending to red states that they, and only they, should do partisan redistricting. If Texas and other states are going to unilaterally add Republican districts where they don’t exist now, without following any of the accepted criteria for what constitutes a legitimate district, then why wouldn’t Democrats want to do it too? How could you possibly want to outlaw it? We either just sit by and watch this happen, or we fight back.

In California, the Democratic leadership concluded that the only way to fight back was Proposition 50, the successful initiative spearheaded by Governor Gavin Newsom, committing the legislature to draw a new map adding five new Democratic congressional districts if the Texas plan produced five new Republican ones. California has a lot of districts that can, in fact, be moved around and still maintain their integrity. You can meet basic criteria and still add Democratic seats. 

It’s hard to have these conversations without some institutional memory.

In 2008, over the objections of strongly partisan people like me, California passed an initiative that established an independent redistricting commission. Republicans had pushed the commission idea, whose obvious but unspoken purpose was to counter the Democratic advantage in voter registration. The idea was that there were way too many Democratic districts, and somehow a more neutral process would do away with that. Until that point, redistricting was done by the legislature in coordination with Congress—all people who had a particular personal interest in the results.

When that commission became a reality, much to our shock, it actually was very well done, with people who took their job seriously as commissioners. Right now Democrats hold two-thirds majorities in both the state assembly and the state senate, and the map that produced that result emerged from a genuinely nonpartisan process. 

Why is gerrymandering so persistent, then?

It would be nice to think an independent commission in every state would work, and that thoughtful voters who are outside of the political equation could take all the issues into consideration and draw even maps. But people in most states don’t seem to feel that way. They think they know better. And I’m not convinced that they don’t.

If Texas and other states are adding Republican seats, why wouldn’t Democrats want to do it too?

I worked with Willie Brown, the legendary speaker of the California State Assembly from 1980 to 1995, and I believe both Democrats and Republicans were well served in that period by the work done over many years to try and put together the best districts possible, to keep communities of interest together and to meet all the other necessary criteria. Obviously, it served incumbents. But if you wanted to take minority communities and civil rights issues into consideration, you had a better chance of doing it the way we were doing redistricting then, through the regular political process, than any other way. 

Any system can work as long as there are honest brokers. You have to consider people’s motives, and with President Trump you don’t have to do an in-depth study. He says it right out loud. When someone just sees California as a “blue state” and could not care less about minority communities being disenfranchised, you have to deal with what he’s doing.

Does partisan gerrymandering tend to benefit Republicans or Democrats?

Mostly it benefits incumbents, but it depends on the state, and on whether the leadership is paying attention to the criteria being used to set districts. For younger people, this may seem like a new debate, but there have always been issues with drawing districts fairly. These days, with computers, you don’t have to hand-count the census, so unless you screw around with the census itself—which of course this president is trying to do as well—gerrymandering should be less common than it was 50 years ago. And I think we were getting there. Most states had plans that could pass legal muster, with geography, partisanship, race and many other criteria all part of the mix. The issue seemed to have quieted down. But I guess not. 

Are we in a gerrymandering arms race?

Not really. I mean, look what just happened in Indiana. People have been watching all this with alarm. When everything is done purely on a partisan basis, you get lunacy. People would rather have what they see as rational, normal districts that are fair. 

We were fortunate to be able to do something in California that will be helpful to the midterms, but we don’t normally govern and legislate based on the next election, unless you’re this president. Proposition 50 was purposely made temporary: The independent commission goes back into effect after the next census. All Prop 50 says is that if Texas and other states try to add Republican districts during this cycle, we are going to add Democrats. The intention was not to undo something that voters had approved. I was a critic of Prop 50 at first, because I thought it was a long shot. It’s such a process issue, and I was worried voters wouldn’t get it or weren’t paying attention. But boy, did they get it.

How does redistricting for racial reasons intersect with all this?

Unfortunately, given everything they’ve been doing, it feels as if the Supreme Court will undo the part of the Voting Rights Act that allows states to create majority-minority districts so as to give racial minorities the ability to elect representatives. That’s been upheld by the court in the past, even though other forms of racial gerrymandering have been banned, even while partisan gerrymandering has been upheld. Parts of the Civil Rights Act and the Voting Rights Act are going up to the Supreme Court, and little by little, they are taking away some of what we worked so long and hard to get. The basics of redistricting are who can vote, who should vote, and where they live. But when you start screwing around with the census data and changing the number of voters and the requirements for who can vote, rolling back reforms that protect people’s right to vote at all—those are all ways of changing the game on redistricting.

Gerrymandering can benefit minority communities. Does it have any effect on Jews? 

I think it does, because the intention of this most recent kind of aggressive political gerrymandering is not just to keep people with brown skin or black skin from voting, it is to divide and conquer communities everywhere. We have to be vigilant in terms of where people go next in terms of trying to separate communities.