Packing, Cracking, and Power (Part 5)
A 7-Part Series on The Tactics of Gerrymandering
In Part 4, we examined the key Supreme Court rulings on redistricting, and we came to a stark conclusion. While the Constitution gives states the primary authority over federal elections through Article I, Section 4, the Supreme Court's decision in Rucho v. Common Cause explicitly left the regulation of partisan gerrymandering to the states and Congress. This created a new reality where states have become the main battlegrounds for addressing this issue through their own constitutional provisions and legislative processes.
Now, in Part 5, let's pull out that ol’ magnifying glass and take a closer look at the legal conflicts and differences between the U.S. Constitution and those of our individual states.
State-Level Responses and Innovations
One of the most promising solutions to the issue of gerrymandering is the creation of Independent Redistricting Commissions. Several states have adopted this approach to take the power of drawing electoral maps out of the hands of partisan legislators. The state of California's commission, which was established in 2008, is highlighted as one of the "best systems in the country." This is because it is designed to draw district lines "without regard to party." This approach aims to create maps that are more representative of the people and less susceptible to partisan manipulation.
The ballot initiative process in states such as California provides a direct way for voters to enact redistricting reforms, potentially bypassing the resistance of a partisan legislature. California Governor Gavin Newsom's recent threat to use a ballot initiative to approve a Democratic gerrymander in response to Texas's actions - even possibly circumventing his own state's independent commission - shows both the power and the complexity of this mechanism. It demonstrates a willingness to "bend" the rules rather than "ignore" them through direct action by the voters themselves. This approach, while democratic in its form, highlights the lengths to which political actors may go in this "war over redistricting."
State courts can be a critical line of defense against partisan gerrymandering, as their power comes from their own state constitutions, which might have different or more explicit provisions than the U.S. Constitution. North Carolina serves as a stark example of both the promise and the peril of this approach. A Democratic majority on the state Supreme Court initially ruled in 2022 that partisan gerrymandering violated the state's constitution. However, just one year later, that ruling was reversed after a shift in the state Supreme Court's partisan makeup following an election. This illustrates how vulnerable state-level judicial remedies are to political shifts and partisan control of the judiciary itself.
Some states have taken direct action to constrain gerrymandering by adopting specific constitutional amendments and laws. For example, in 2010, the people of Florida adopted amendments that forbid redistricting plans from favoring or disfavoring any political party or incumbent. Similarly, in 2018, Ohio residents passed an initiative that requires redistricting maps to have at least 50% approval from the minority party in the legislature. These are important steps that show how states can use their own legal frameworks to fight back against partisan manipulation and maintain the integrity of their elections.
Variances and Conflicts: The "Fight Fire with Fire" Mentality
Our state constitutions and laws can, and often do, place stricter rules on redistricting than federal law does. These rules often include requirements for districts to be contiguous, compact, and to respect existing political boundaries. The core conflict arises when a state with strong anti-gerrymandering provisions, such as California, is faced with aggressive partisan gerrymandering in another state, like Texas. The "fight fire with fire" mentality that has been threatened by blue-state governors shows the tension between a desire for fair maps and what is perceived as a need to retaliate in a national political climate where partisan advantage is aggressively pursued.
The Rucho decision, by pushing the responsibility for partisan gerrymandering to the states, suggested that state-level reforms could be the solution. However, the fragility of these efforts is becoming painfully clear. Take, for example, California's independent commission, which, as previously mentioned, has been highlighted as one of the "best systems" in the nation. It is now threatened with circumvention by its own governor in a "fight fire with fire" response to actions taken in Texas. Similarly, the North Carolina Supreme Court's ruling against partisan gerrymandering was swiftly reversed after the court's partisan composition shifted following an election.
This demonstrates that even robust state-level reforms can be undermined or abandoned when faced with aggressive partisan tactics from other states or national party pressures. This suggests that a purely state-by-state approach to combating partisan gerrymandering may not be enough to solve the problem comprehensively. Without a federal backstop or a broad, bipartisan commitment to electoral fairness across the nation, individual state efforts can be isolated, retaliated against, or overturned. This leads to a fragmented and inconsistent landscape of electoral integrity across the U.S., which ultimately undermines the principle of nationwide equitable representation in our federal elections.
The ideal of "fairness in districting" is rightly considered a "lofty goal." Yet, the current discourse, exemplified by Governor Newsom's sentiment that "if Texas cheats... then California should cheat," and the Republican argument that fairness must be "measured on a national level," points to a dangerous shift. This suggests that fairness is no longer an intrinsic principle guiding redistricting, but a relative concept dependent on the actions of opposing parties. If one side engages in aggressive partisan gerrymandering, the other feels justified in doing the same, creating a destructive cycle. This retaliatory approach threatens to permanently embed partisan advantage as the main driver of redistricting. This moves our system further from a true "portrait" of the people and closer to one where power is consolidated through strategic manipulation, further eroding public trust and deepening political polarization. The very definition of what constitutes a "fair" election is now becoming a partisan battleground, leading to a fragmented and inconsistent landscape of electoral integrity. Even Shakespeare would agree: a House divided by manipulated districts cannot stand.
