Gerrymanders for All

Now things are ramping up in California, where Proposition 50 — the Election Rigging Response Act — will appear on the state ballot in November. If the measure passes, the Democratic-gerrymandered map would temporarily override the existing one created by a nonpartisan redistricting commission.

Created in 2008, the California Citizens Redistricting Commission (CCRC) is an independent citizen commission that draws the boundaries of the state’s US congressional districts instead of the state legislature. Any registered California voter who meets certain requirements to weed out conflicts of interest is eligible to apply for a seat on the commission, which is composed of five Democrats, five Republicans, and four members not affiliated with either major party.

Aside from Newsom, supporters of retaliatory gerrymandering now include former president Barack Obama, former vice president Kamala Harris, California senators Alex Padilla and Adam Schiff, and the California American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). Obama’s former attorney general, Eric Holder, has also argued that Democrats love democracy too much not to play the Republicans’ game, and New York governor Kathy Hochul has declared that “all’s fair in love and war.”

Minority Rule

Thomas Hofeller — the so-called “master of the modern gerrymander” — described gerrymandering as politicians picking their voters instead of the other way around. Others describe the practice as drawing districts “especially for partisan advantage” and “stacking the deck before an election has even taken place.”

Definitions aside, partisan gerrymandering systematically leads to anti-majoritarian outcomes. At the state level, it creates “manufactured majorities” and has led to hundreds of cases where one party wins more votes statewide but ends up with a minority of seats in the state house or state senate. Wisconsin is one of the more egregious examples: Despite winning the popular statewide vote in 2012 and 2018, Democrats controlled only 39 percent of the state’s assembly seats and 45 percent of the state’s Senate seats.

The same issue occurs at the federal level. In the 2012 House elections, for instance, Democratic candidates received about 1.4 million more nationwide votes than Republicans, but gerrymandering gave Republicans a thirty-three-seat majority. (The 2024 House elections were less distorted — the Republicans have a slim House majority after winning a narrow plurality of the national vote.) The scenario of a minority of votes translating into a majority of seats happens for a different reason in the Senate, of course, where today’s Republican majority of fifty-three senators represents roughly twenty-four million fewer people than the Democratic minority of forty-five.

The Texas AFL-CIO said that cheating is the only way Republicans can stay in power. While it’s true that gerrymandering favors Republicans more than Democrats, both parties redraw districts at will, and the practice is legal under federal law thanks to the Supreme Court’s 2019 decision in Rucho v. Common Cause. Speaking for the majority, Chief Justice John Roberts explained that “partisan gerrymandering claims are not justiciable because they present a political question beyond the reach of the federal courts.”

We can also thank the Senate. In 2022, Democrats folded the John R. Lewis Voting Rights Advancement Act into the larger Freedom to Vote Act, which included provisions to attack gerrymandering. The omnibus bill was supported by more than 60 percent of Americans but died in the Senate at the hands of the filibuster. When some Democrats attempted to change the rules to allow the bill to pass with a simple majority, fellow Democrats killed it.

People are understandably angry about gerrymandering, but the tactic makes sense within the logic of our constitutional structure — where power doesn’t come from responding to the majority’s desire and winning votes within a system of universal and equal suffrage but from mastering a system designed to empower geographic minorities. It’s the same antidemocratic logic that drives every presidential candidate to tailor their campaign to a mere 400,000 voters in a handful of swing states.

A William T. Wiley Painting

Proportional representation can solve the problem of gerrymandering by replacing a system of single-member, winner-takes-all districts with multimember districts in which seats are allocated based on total vote share. If Democrats win 60 percent of the vote in a five-member district, they get three seats; if Republicans win 40 percent, they get two.

Proportional representation would also counteract geographic clustering, the phenomenon where urban voters, who are typically more left-leaning, are concentrated into fewer districts. This concentration makes it more difficult for statewide vote majorities to translate into legislative seats, even when maps are drawn neutrally.

Our current system of winner-takes-all elections traps the Left within the Democratic Party. However, proportional representation allows third, fourth, and even fifth parties to gain a foothold. “Whenever we look at maps of the political landscape in the United States, they are always depicted in red and blue, symbolizing the two-headed Cartel Party system that controls the US,” writes election reform advocate Jesse Kumin. “Two-color maps are made possible by Single Member Districts. I’m dreaming of a Proportional Map made up of lots of colors, more like a William T. Wiley painting, made possible by Multi-Member Districts.”

As long as we keep winner-takes-all districts, the temptation to gerrymander will always exist, and the Senate and Supreme Court have already given their approval. The only real fix is structural: multimember districts with proportional representation.

On paper, proportional representation could be implemented nationwide without violating (or changing) the Constitution. The Uniform Congressional District Act of 1967 requires states to elect their representatives to the US House using single-member districts; that law could be repealed. But doing so would require passing a bill through a federal system designed to resist significant policy change. So while proportional representation doesn’t conflict with the Constitution’s text, the Constitution, through its various minoritarian checks, nevertheless blocks the way forward.

Democratic in Name Only

Standing behind a podium emblazoned with the California state logo and the slogan “defending democracy,” Newsom touted Proposition 50 as a way of giving Californians “power to push back on Trump’s attempts to shred democracy” and “bring accountability” to the administration.

Like Biden and Harris did recently, Newsom casts himself as a defender of democracy while clinging to a system that denies it. In reality, there’s nothing democratic about America’s winner-takes-all, single-member district system — just as there’s nothing democratic about the minoritarian Constitution.

We cannot win the battle for democracy by following the Democrats into the black hole of competing gerrymanders. The only way out is through a struggle for a democratic constitution that includes multimember districts with proportional representation — a system that, in the words of Lee Drutman, “treats all voters equally, regardless of where they live. And it treats all parties the same, regardless of where their voters live.” Anything less leaves minority rule in place.