How to End the Gerrymandering Doom Loop Forever

Produced by Claire Gordon

How to End the Gerrymandering Doom Loop Forever

This is an edited transcript of “The Ezra Klein Show.” You can listen to the episode wherever you get your podcasts.

Until the last couple of weeks, Democrats thought they were drawing nearly even with Republicans in the gerrymandering wars. Yes, Texas had tried this aggressive midcycle redistricting, but California had countered it. That was the pattern we were seeing: For every red state that was doing a big redistricting, there was a blue state trying to match it.

But then, over the past couple of weeks, Democrats caught a series of very bad breaks. One was the Supreme Court decision in Louisiana v. Callais, which gutted the Voting Rights Act, one of the last boundaries on what you could do in terms of partisan and racial redistricting.

The second was that Virginia, which had paused its commission and drawn new maps, had its new maps thrown out by its courts.

Now Democrats are going to be down something like seven to 10 seats from these redistricting fights.

So I think there are two questions here: One is what this means for the midterm elections and the fights over gerrymandering that will come after them. And the second is: How can we actually put an end to this?

Because this is a disaster for our democracy. This is exactly how our system is not supposed to work.

Lee Drutman is a senior fellow in the Political Reform program at New America, a public-policy institute. He’s the author of the 2020 book “Breaking the Two-Party Doom Loop: The Case for Multiparty Democracy in America” and writes the newsletter Undercurrent Events.

Drutman is one of the most persistent and thoughtful advocates for proportional representation — something you see in a lot of other countries and that might be the answer we need to turn to here.

Ezra Klein: Lee Drutman, welcome to the show.

Lee Drutman: Hey, it’s a real treat to be having this conversation, Ezra.

Before we get into everything that has happened with gerrymandering over the past couple of weeks, months, years — what is gerrymandering?

What is gerrymandering? That is a great question that nobody has the perfect answer to.

“Gerrymandering” is an old word. It goes back to 1812, when The Boston Gazette popularized the phrase for Elbridge Gerry, who was actually one of the signers of the Declaration of Independence. He was a big pooh-bah in Massachusetts politics, and as governor he approved these maps that looked like crazy shapes. One of them looked like a salamander, so The Boston Gazette called it a gerrymander.

We’ve used that term for more than 200 years to describe messing with district lines for partisan or incumbent advantage. But it’s a good question because nobody has a clear definition of what counts as a gerrymander.

But I think we know what is being attempted with gerrymandering, and I think it’s worth walking through that.

Imagine a state where you have a 60-40 Democrat-Republican split in the electorate. If you have 10 House districts in that state, you might think: Well, that should give you a distribution where you get some Republican ones, a little bit more Democratic ones.

But it turns out, if you’re smart and you’ve got computers and you’ve got algorithms, you can cut that up so functionally there are no Republicans, or very few, who get elected in that state.

Right. And you can be an even bigger state like California and be a roughly 65-35 Democratic state and cut up 52 districts in a way that potentially gives you 52 Democrats.

This is what is a problem and somewhat offensive about gerrymandering to me: It is an act of effective disenfranchisement, at least in House elections. The people in power are choosing their voters — rather than the voters choosing the people in power.

There have been efforts to ask: Isn’t this illegal or unconstitutional in some ways? A couple of years ago, there was a series of cases brought to the Supreme Court that basically wanted the court to hold that there were levels of partisan gerrymandering that were unconstitutional. What happened in those cases?

That series of cases culminated in the Rucho decision of 2019, in which the conservative majority said: We can’t find a standard that would be justiciable to declare what is partisan gerrymandering. And anyway, it’s not our role. It’s up to the states, and it’s not something that we should be ruling on.

That cleared the way for more aggressive partisan gerrymandering, I think.

States also have their own constitutions, and some challenges are brought under state constitutions. But broadly, in the 2019 decision, the Supreme Court gave a green light to partisan gerrymandering.

It’s worth noting that there were a bunch of states where this was unpopular. People do not like gerrymandering. So places like California and Virginia had created independent commissions to make the maps nonpartisan.

And then there is this other thing happening in the political system, which is that Trump and Texas kick off what’s called a midcycle redistricting effort that then begins to ping-pong back and forth between red and blue states.

Explain to me what has been happening just in the past year and how it’s different from what we normally see.

Usually, districts are drawn after a census, every 10 years. So if a state grows and another state shrinks, maybe some congressional districts shift between states, and that means that the states get to redraw the maps.

There are various approaches to how states have done that over the years, none of which are great. But the standard was you do it once, those maps last for the decade, and then, after the next census, you get another turn to draw those maps.

But what President Donald Trump did last summer was say: Hey, I’m looking at Texas, and I think if they were a little more aggressive in their maps, Republicans would win even more seats. So, hey, Texas, why don’t you do this thing that is pretty outside of what we normally do?

Not illegal, but outside the norms.

Not illegal, but outside the norms. This is an important distinction. There’s a certain amount of restraint.

And he says: Why don’t you get a little bit more aggressive and redraw the map?

This is a big fight. Eventually, Texas does this. They get up to five more Republican seats.

So in California, Gavin Newsom says: Hell, no. We’re going to run a ballot initiative, and we’re going to get rid of our redistricting commission, at least for the time being, and we’re going to redraw maps that give Democrats more seats. That passes.

There’s also a challenge in Indiana, where some Republicans in the state legislature say: Actually, we’re not going to do what Trump wants us to do. We’re not going to redraw the maps to give us two extra Republican seats.

Then Virginia passes this ballot measure where it narrowly approves also overriding their independent redistricting maps that were fair to give Democrats 10 out of 11 seats. Although then the state court says: Actually, you violated some obscure procedure about what counts as an election, so we’re invalidating that.

Now, as we speak, the Supreme Court will rule on who’s right there.

The Virginia Supreme Court?

No, the U.S. Supreme Court. They’ve brought a challenge to the U.S. Supreme Court.

OK. So the Texas move and the fight for House control lead to a situation where blue states are one after the other now destroying their independent redistricting commissions — whether or not those are holding. Like, in Virginia, we’ll see.

But it’s an all-out redistricting war, which means if you are a voter in the minority — and here I mean the minority party in a state — you are becoming more likely to be functionally disenfranchised. It is becoming more likely that you will just not have a voice in House elections because they will have drawn your district in a way where you don’t matter.

This is true for Democrats in red states, true for Republicans in blue states.

Then there is a series of fights around the Voting Rights Act, culminating in this Louisiana v. Callais case that just came before the court.

What is that set of previous restrictions on gerrymandering that are now gone?

Section 2 of the Voting Rights Act basically said that there are prohibitions against racial gerrymandering. So partisan gerrymandering is OK as of 2019, but racial gerrymandering — which is basically depriving minority voters of a chance to elect their candidate of choice — is still illegal.

A state like Louisiana couldn’t draw districts that prevented Black voters in Louisiana from being able to elect their candidate of choice. So there’s no one standard. It’s been litigated on and off over the years.

But basically, what the Supreme Court said in the Callais decision is that unless you are wearing a K.K.K. mask and saying: I don’t want Black people to be allowed to vote — like, a high standard of intentionality — racial gerrymandering is not something that’s able to be proved. You can just draw maps however you want.

It’s worth noting that part of the case here was an argument that this was illegally disenfranchising white voters — who would be straightforwardly more powerful if they could gerrymander out these minority districts.

Yes, and also that racism was no longer a problem in America, and therefore, the Voting Rights Act had outlived its usefulness. [Laughs.]

I mean, you can argue with the logic of this case from any number of directions.

But the Supreme Court gets to decide because they’re the Supreme Court, and we are left with a landscape in which there are no prohibitions on partisan gerrymandering, no prohibitions on racial gerrymandering, and it’s just a free-for-all.

So any guardrails that might have come from the Constitution or the courts have been bulldozed over the past decade.

Walk me through what’s likely to happen, particularly in the Southern states, in this post-Callais era.

OK. We’ve got Louisiana, where the governor had immediately said: We’re going to redraw the districts. Forget about the primaries — postpone them.

It looks like they’ve settled on a map that’s 5-1 Republican, so they didn’t go for the most aggressive gerrymander.

Mississippi is currently 3-1 Republican. They will probably wind up eliminating that one Democratic district and go 4-0.

East Alabama is currently 5-2 Republican. They’re going to redraw their maps — whether it’s 6-1 or 7-0, we’ll see how aggressive they get.

In Florida, DeSantis already had it ready to go, and they have redrawn their maps to go from an expected 20-8 Republican to 24-4 Republican. Pretty aggressive.

South Carolina just announced they’re going to 7-0 Republican.

Tennessee is going all Republican. They’re eliminating the one Democratic district that was Memphis.

Georgia could go more aggressive. That’s uncertain.

There are some estimates that Republican-controlled legislatures across the South could target as many as 19 majority-minority districts, all held by Democrats.

I don’t know. They may be a little cautious in some places, given that it’s not a great year for Republicans. But it’s basically eliminating a lot of majority-minority districts. They’re going fast.

Which is eliminating a huge amount of Black representation in Congress.

The term that Hakeem Jeffries has been using is “maximum warfare, everywhere, all the time.” What does that mean to have maximum gerrymandering warfare everywhere, all the time?

It basically means we’re turning the House into the Electoral College, in that whichever party controls the state legislature and is the majority party in the state, no matter how narrow, they’re going to maximize the seats that they can get.

That basically means we’ll have no competitive elections. I think the latest analysis suggests we’ll only have 15 meaningful toss-ups in this November election, out of 435.

What was that 20 years ago?

Twenty years ago, it was closer to 50.

That’s amazing. We’ve gone from House elections where routinely you’d have 50 House elections in a cycle to, you said, 15?

Fifteen. Some of that is gerrymandering. A lot of it is partisan sorting. You think of 20 years ago, 2006. You had Blue Dog Democrats who were winning in a lot of districts that are now completely safe Republican districts.

There’s been this increasing nationalization of partisanship. I think I remember a book by a guy named Ezra Klein. He wrote a book about this polarization thing that has been happening to America.

Great book. [Laughs.] Great book. Gets more relevant every day, unfortunately.

Yes. It’s just the geography that Democratic places have become more Democratic. Republican places have become more Republican. And because we have these place-based districts, that means just a lot of them are safe naturally, and then gerrymandering is another level on top of that.

In your best guess, given where things would have been if nothing had changed, what does this mean this year for the midterms?

If nothing had changed, I would say Democrats easily take the House. Donald Trump is unpopular. Enthusiasm among Republican voters is down. Enthusiasm among Democratic voters is up.

And every incumbent president loses, his party loses, seats during a midterm unless there’s a war or some extraordinary circumstance. That is just how the electorate moves. With the latest shifts in the maps ——

How many seats do you think this has taken away from Democrats?

Yes, it’s interesting. I’ve seen estimates around nine, and then I’ve talked to Democrats who run me through the way they think about it, and they’ve pegged it closer to seven.

But it’s a significant number, whichever of those you’re looking at. Maybe not enough to keep them from taking the House, but it shifts the math of the competition significantly.

It does. Now the one thing about spreading out your advantage, as Republicans are trying to do in states like Florida, is that it could backfire.

I know Democrats who think they were way too aggressive in the Florida gerrymander, specifically. And these maps that they’re putting out now, that it’s going to be all red, they’re going to break that map.

Right. So if you think: I want to have a bunch of 55-45 Republican seats — if it’s a really bad year for Republicans, those could all go Democratic.

I want to draw out something you’re saying here. When you’re gerrymandering, there is a choice you have to make as the gerrymandering party, which is that you can draw extremely safe districts — a 60-40 Republican-Democratic district — or you can try to draw more districts where you have an advantage. But maybe that means you’re drawing 45-55 districts or 53-47 districts.

So the more you spread your voters to make sure you have the maximum number of districts, the less safe you are making every individual district.

If you’re in an incredibly lopsided state, that may not matter. But if you’re in a state that is in any way competitive in a bad year, you might lose a bunch of those elections.

This is what’s sometimes known as a dummymander, where in trying to maximize your gerrymandering advantage, you do a thing that dummies do, which is you overreach and then that backfires.

OK. So there is then a question of what happens after this election. There’s only so much that the Democrats and Republicans can do before 2026. You can tell me if you think this is wrong, but the forecast from people I talk to is that this doesn’t end in 2026, absent changes.

If nothing changes, this goes on into 2028. This goes on into 2030 as people keep torquing the maps for more and more advantage — because if the other side is doing it, aren’t you an idiot to not do it, as well?

Yes, you would be an idiot. [Laughs.] That’s the logic of our trench warfare politics. Absolutely, unless Congress outlaws mid-decade gerrymandering, which I doubt they will do, there will be a whole bunch of other attempts after the 2026 midterms to redraw the maps and get rid of the independent commissions.

Colorado has an independent commission.

There’s also a reality that after the Voting Rights Act, there are blue states that were maintaining minority districts.

And I think this is an under-noticed way this might play out, but Hakeem Jeffries and others have been talking about needing to maximize partisan advantage here.

The end result of this might be much more partisan maps and less minority representation in Congress.

Right, because one way to get more Democratic maps is to split up majority-minority districts.

In blue states, yes. And that’s a real tension within the Democratic coalition.

I’m just going to say it: This system is a disaster and broken.

I know people who are deeply involved in the effort right now to do counter-gerrymandering, to gerrymander the blue states, and they will tell you that this is bad for everyone.

They have to do it, but they think this is bad. They think it is bad for America’s politics. They think it is bad to disenfranchise these voters. Being locked into the system where they don’t see a choice is not what........

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