With the release of data from the 2020 U.S. census, which is used to draw districts for seats in Congress and state legislatures, officials in state after state have launched a mad dash to begin redistricting ahead of next year's elections. But while Republican-led states are considering extreme means to maximize their gains, some Democrats worry that their party shot itself in the foot before the process even began.
Republicans used redistricting following the 2010 census to carve out near-impenetrable majorities in state legislatures and congressional delegations in states like Ohio, Michigan and Wisconsin. The GOP again has an advantage this year because the party has total control of the map-drawing process in 187 congressional districts while Democrats have full control of the process in just 84 congressional districts. One reason for the major gap is that some Democratic states are "unilaterally disarming," some Democratic lawmakers say, by shifting power to independent redistricting commissions or even cutting deals with Republicans to shrink potential gains.
Republicans, meanwhile, have alarmed even other members of their own party with aggressive plans to shrink Democratic districts and "crack" blue cities in red states, including Louisville, Kentucky; Omaha, Nebraska; Nashville, Tennessee; and Kansas City, Missouri. That tactic involves slicing urban areas up into multiple districts in an attempt to eliminate Democratic seats as much as possible. Even Senate Minority Leader Mitch McConnell, R-Ky., has warned against such a plan and some Republican lawmakers have urged their party's state legislatures to consider the consequences. Rep. James Comer, R-Ky., warned that getting too "cute" with the maps could "end up in a lawsuit." Rep. Tom Cole, R-Okla., warned his party against getting "too greedy" because if "you have a bad election … instead of losing a couple of seats, you lose four or five."
Still, lawmakers like Reps. John Yarmuth, D-Ky., and Jim Cooper, D-Tenn., should be "very nervous" about being drawn out of their seats, David Daley, the former Salon editor who now serves as a senior fellow at the nonpartisan advocacy group FairVote, said in an interview.
"The advantages that Republicans engineered in 2010 and 2011 are very much still with us," he said. "In states like Wisconsin, North Carolina, Florida, Georgia and Ohio, those gerrymanders held for a decade." Although Democrats were ultimately able to claw back some seats and won critical gubernatorial races in states like Pennsylvania and Wisconsin to give them veto power over the most extreme maps, the party's "options are more limited" this redistricting cycle, Daley added.
"The map is just brutal for Democrats," he said.
Democrats who support the shift to independent commissions and have long decried aggressive (and sometimes illegal) Republican gerrymanders argue that the party is simply putting its money where its mouth is and practicing "good government." But with a razor-thin majority in the House and aggressive Republican plans to maximize their potential victories, those principles could also cost Democrats control of Congress. Republicans need a net gain of just five seats to recapture control of the House — and might be able to pick up that many through redistricting Florida alone. The GOP could easily stand to gain six to 13 seats overall through redistricting efforts in Florida, Texas, Georgia and North Carolina. Of those four states, only Georgia failed to gain congressional seats from the census results while blue states like New York, California and Illinois all lost seats.
On the other hand, if Democrats had not shifted power to independent commissions in three states — California, Colorado and Virginia — they would have controlled more districts than the GOP, according to Kyle Kondik, a political analyst at the University of Virginia Center for Politics.
Democrats are particularly alarmed about their prospects in Virginia, where the party sunk millions to win a majority of seats in both chambers of the state legislature under Democratic Gov. Ralph Northam. But then nine Democrats in the House of Delegates voted with Republicans to advance a ballot initiative to create a bipartisan redistricting commission, which was overwhelmingly approved by voters last year. The 16-person commission will include eight state lawmakers from both parties and at least two Republicans must approve the final map, effectively giving the party veto power. If the commission fails to reach an agreement, the state's conservative Supreme Court would decide the new districts.
"We Democrats are cursed with this blindness about good government," Rep. Gerry Connolly, D-Va., told Politico. "In rabid partisan states that are controlled by Republicans, they're carving up left and right. And we're kind of unilaterally disarming. But having said that, I still come down on the side of reforming this process because it's got to start somewhere."
Though Virginia has steadily trended blue for years, some state legislators worry that the commission could imperil their newfound majority.
"I fully support, and voters absolutely deserve a fair, transparent, and most importantly, nonpartisan approach to redistricting," said Democratic state Del. Lashrecse Aird in a statement to Salon. "But the heavy-handed partisanship and disproportionate influence from lawmakers that's unfolding in Virginia is precisely why I was so opposed to the constitutional amendment that created our commission. The inability of this commission to remain neutral and act in the best interests of voters means Virginia's GOP-appointed Supreme Court will almost certainly determine new districts."
In Colorado, another blue state that gained a seat in the census, the Democratic-led House joined the Republican-led Senate to advance an amendment to create a nonpartisan commission that voters overwhelmingly approved. "We're fucking idiots," a Democratic state lawmaker told the Colorado Sun. Republicans, meanwhile, see the independent commission as their best shot at recapturing power in the increasingly blue state. Republican Senate Minority Leader Chris Holbert publicly called it "the first step toward achieving the Senate majority for Republicans."
Though the commissions are nonpartisan, some analysts are concerned that they may ultimately disadvantage Democrats, whose voters are typically concentrated in urban areas.
"Even if you're not trying to gerrymander on behalf of Republicans, the fact that Democrats are concentrated in cities and in the inner-ring suburbs means that it is easier to accidentally gerrymander on behalf of Republicans," Matt Grossmann, head of the Institute for Public Policy and Social Research at Michigan State University, told the Associated Press.
The National Democratic Redistricting Committee, a group founded by former Attorney General Eric Holder, has pushed independent commissions as fairer alternatives to partisan redistricting processes.
The NDRC did not respond to questions from Salon. Kelly Ward Burton, the group's president, told Politico recently that they simply "want fairness, and we put our money where our mouth is."
"We have pushed for fairness in the states where we have control or influence," she said. We're even doing it at the national level. The Republicans are not, because they intend to manipulate the maps to hold on to power."
The NDRC also vowed to pursue legal action against partisan Republican gerrymanders.
"We will fight tooth and nail in the states with every tool at our disposal to prevent them from locking in gerrymandered maps," Ward Burton told Politico. "We will sue them. We fully anticipate being in court. And that will be the battlefront on which we fight for fair maps. We're ready for that."
But those legal challenges will face more hurdles than usual after the Supreme Court effectively barred federal courts from weighing in on partisan gerrymanders, leaving the issue in the hands of state courts. Though courts have previously struck down Republican gerrymanders in states like Florida, Texas, North Carolina and Pennsylvania, and Democrats have already filed preemptive lawsuits in several states in hopes of getting courts involved in the process, legal experts doubt there will be drastic reversals this time around.
The Supreme Court decision has effectively given state legislatures "a green light and no speed limit as far as the extreme gerrymanders that they will be able to engineer and implement," said Daley, the author of two books on redistricting.
A majority of states where Democrats have full control of government will have maps drawn by commissions. But in certain states, like New York and New Mexico, the Democratic-led legislatures can reject the commission maps and draw their own.
New York Gov. Kathy Hochul vowed on her first day in office to use her influence to help the Democrats expand their congressional delegation through the redistricting process. Some New York Democratic operatives believe the legislature can flip as many as five of the state's eight Republican districts, according to Dave Wasserman, an election analyst at the nonpartisan Cook Political report.
The New Mexico legislature can also override the maps created by its advisory redistricting commission. State House Speaker Brian Egolf earlier this year questioned why "Democrats want to unilaterally disarm and give advantage to the people who are trying to make the world a dirtier place, take rights away from people, make it harder to vote — all the things that we oppose."
Egolf told Salon he has "confidence" in the redistricting committee but said the legislature would "review" their recommendations to ensure the maps are fair.
"They are gathering robust public input at meetings all over New Mexico, and I am hopeful that they will use public input, census data and their knowledge of New Mexico's communities of interest to draw district maps that reflect the geographic and demographic diversity of our state," he said in a statement. "Come December, the legislature will carefully review the Commission's maps to ensure that the voting strength of Native American voters and communities of color remains strong. We will also make sure that the maps are fair to communities of interest throughout New Mexico. This is a new redistricting process, but it is one that rightly takes into account the many diverse communities and voices of our state, and that's always been my priority as Speaker."
Democrats have opportunities to expand their gains in other states as well.
In Illinois, Democrats are planning to roll out a party-drawn map that is "very likely" to gut the exurban Chicago district of Republican Rep. Adam Kinzinger and significantly change the district of Rep. Rodney Davis, another Republican, according to Politico. The state lost a seat in the census and Democrats, who now control 13 of the state's 18 districts, are expected to draw a map that will likely give them a 14-3 advantage.
Maryland Democrats, who control seven of the state's eight congressional seats, toyed with the idea of drawing an all-Democratic map in 2010. The party ultimately decided against it but, with the House majority at stake, could face significant pressure to significantly redraw the district of Rep. Andy Harris, the delegation's lone Republican.
Oregon, one of the few reliably blue states that gained a seat in the census, was expected to add a Democratic seat to its congressional delegation, where the party already controls four of the state's five seats. But Democratic House Speaker Tina Kotek stunned colleagues by agreeing to a deal with the state's Republican lawmakers that effectively gives the GOP veto power over the state's new district map in exchange for an agreement by Republicans to stop fleeing the state and using other obstructive tactics to block legislation. Democrats hold supermajorities in both chambers of the Oregon legislature.
If the legislature fails to agree on new districts, the redistricting power would shift to Democratic Secretary of State Shemia Fagan, but Oregon's congressional Democrats are distinctly unhappy with Kotek's deal. Rep. Peter DeFazio called the move "abysmally stupid." Rep. Kurt Schrader said it was "like shooting yourself in the head."
Kotek's office says she is focused on making "real progress for Oregonians who desperately needed support" after the effects of the COVID pandemic and a historic wildfire season. "She remains committed to ensuring Oregon has a fair, transparent, and constitutional redistricting process," Danny Moran, a spokesperson for Kotek, said in a statement to Salon.
But while Democrats have ceded power to nonpartisan commissions in certain reliably blue states, the real reason Republicans hold such a significant edge is that they have been able to capture legislatures in purple states, which makes it hard to "see what Democrats can do if they wanted to do the same thing," said Daley.
"The long-term solution here can't be aggressive Democratic gerrymanders in Illinois and New York. That is a losing battle for the Democratic Party, it's a losing battle for democracy, it's a losing battle for the American people," he said. "It's a horrible idea. And the map is not in their favor, anyway, even if they went down that road. So you not only squander any high ground, any appeal to fairness, but you set yourself up at a political disadvantage."
It's ludicrous to describe Democrats as "powerless" given that they control both chambers of Congress and the White House, Daley observed. "If they want to put an end to partisan gerrymandering, they could pass a law."
Democrats have proposed a ban on partisan gerrymandering and a nationwide shift to nonpartisan redistricting commissions in the For the People Act, but Republicans used the filibuster to block the bill and in any case Sen. Joe Manchin, D-W.Va., the Senate's "moderate" fulcrum, opposes the legislation. Manchin has thrown his support behind the John Lewis Voting Rights Advancement Act, which would restore the pre-clearance requirement for electoral changes by states with a history of racial discrimination, including new district maps.
But while Manchin and President Biden have repeatedly suggested that they can ultimately convince moderate Republicans to support voting rights legislation, only Sen. Lisa Murkowski, R-Alaska, has backed the John Lewis bill, meaning that there are not nearly enough votes to overcome a Republican filibuster. Manchin and Sen. Kyrsten Sinema, D-Ariz., have ruled out eliminating the filibuster and to this point Biden isn't on board either.
But Congress could also pass a more limited law aimed only at restricting partisan gerrymandering, which Daley predicted would have the support of nearly 75% of voters. "The Democrats did not have this power in 2011. They have it now. If they squander it, they will pay for it," he said. "They know full well what's going to happen to them now. And if they do nothing to protect against the worst excesses of partisan gerrymandering, shame on them."