The judicial tidal wave against Republican gerrymandering continues to grow.
This week, Pennsylvania became the seventh state to have its Republican-engineered voting districts nullified by a state or federal court, joining Wisconsin, North Carolina, Texas, Florida, Alabama, and Virginia. The Pennsylvania Supreme Court ruled Monday that the GOP-drafted districts “clearly, plainly, and palpably violate” the state’s constitution, and gave the legislature just three weeks to come up with replacements in time for the May primary elections.
All eyes are now on the Supreme Court, which heard oral arguments in the Wisconsin gerrymandering case, Gill v. Whitford, in October. The Pennsylvania case does not depend on Gill, as the court went out of its way to specify that its ruling was solely based on the state constitution, not any federal law. But the wave of setbacks for gerrymandered districts is now unmistakable, and Gill is the biggest one of them all.
There’s a reason those seven states are at issue: All but Alabama and Texas are “purple” swing states, with Texas projected to become one in 2020 or 2024. Wisconsin’s voter ID laws likely provided the margin of victory for Trump in 2016, with record low turnout in majority-nonwhite areas—the same areas disproportionately affected by voter suppression laws. And an array of voter suppression laws in North Carolina were credited by local Republicans for reducing black voter turnout in that state as well.
In Pennsylvania, the state’s 18 congressional districts look like a Rorschach test, with districts extending in bizarre tendrils and noncontiguous shapes. But unlike a Rorschach test, the meaning of the map is unmistakable: to “crack and pack” Democratic voters into districts where they are minorities.
And it worked: As of the 2014 election, approximately 44 percent of voters were Democratic but 2 in 3 districts were represented by Republicans.
The question in such cases, though, is how much is too much. When district maps are proxies for race, as in Texas, they’re easier to strike down. But what about when they are proxies for party?
On the one hand, at the Gill oral arguments, Chief Justice John Roberts dismissed the mathematical modeling used to show that Wisconsin’s districts were impermissibly partisan as “sociological gobbledygook.” (The comment drew immediate fire from sociologists and data scientists.) In Wisconsin, Republicans won 60 percent of the seats in the legislature despite winning only 47 percent of the popular vote.
To put it another way, Justice Gorsuch asked, “What are the numbers that we are supposed to read into the constitution?”
The response from Pennsylvania Republicans has been identical. “We understand that [the court’s judges] want lines that, dare I say, look neater,” said Drew Crompton, chief of staff to the state’s Senate leader. “And that’s their right but unfortunately they can’t base that on case law or the constitution because it’s not there.”
On the other hand, surely there’s some point at which a rigged map becomes so rigged that it violates constitutional guarantees to equal protection, or constitutional values like a democratically elected government. Suppose a party rigged the districts so that it subsequently won every single seat in the legislature, despite winning a minority of the popular vote. Surely that map would be unconstitutional, right?
So where do you draw the line between that map and Pennsylvania’s and Wisconsin’s?
It’s not just a numbers game. In Wisconsin, the redistricting was done in secret, by an all-Republican team, with several iterations, each one more slanted to the Republicans than the previous one. In Pennsylvania, Republicans threw out decades of geographical precedent to redraw the map from scratch.
In both states, Republicans have leaned heavily on big data—Cambridge Analytica in particular—to further refine their efforts. While Chief Justice Roberts jokes about gobbledygook, state Republican parties are putting it into practice.
And throughout the country, the Republican effort to rig electoral maps is right out in the open. Here, read the website of REDMAP, the Redistricting Majority Project, a program (as the website proclaims) of the Republican State Leadership Committee. The first article on the now-dormant website is titled “How a Strategy of Targeting State Legislative Races in 2010 Led to a Republican U.S. House Majority in 2013.”
To quantify that effect, consider this data from the Brookings Institute: In 2016, Republicans won House of Representatives elections by 1.2 percent. But the difference in the number of seats is 10.8 percent. That’s a total of 21 extra seats to Republicans.
More data: While Republican House candidates won about half (49 percent) of the nationwide vote in 2016, they captured 55 percent of the seats—241 to the Democrats’ 194. In states where Republicans drew the maps, they won 56 percent of the vote but about 75 percent of congressional representation. Where Democrats drew the maps, they won 60.3 percent of the vote but 69 percent of representation.
That’s why the House of Representatives is so far to the right of American popular opinion on so many issues: because elections really are rigged, not by “media” or “elites” but by the Republican Party, which has drawn distorted district maps all across the country, and supplemented them with voter suppression tools that fight a nonexistent voter fraud problem with very real measures that hit less affluent and less white populations the most.
As in so many other cases, the last firewall has been the court system—which is precisely why the radical right, led by the Federalist Society and Heritage Foundation, have focused on stacking the courts with young, white, male conservatives. It’s a race against demography. America is getting browner and more liberal, but if the rules can be changed—and the courts reconfigured to allow the changes to happen—then the whiter and more conservative party can cling to power.
Which ultimately is what the Pennsylvania court has observed. Specific constitutional rights—free speech, free association—are impacted by these high-tech gerrymanders. But what’s really at stake is representative democracy itself. If the decks are stacked so much that the majority party can’t win a majority in the legislature—or, for that matter, the White House—then in what sense are we living in a democracy?