The gerrymandering crisis
Is it time for legislation? Considering the alternatives
As the gerrymandering war rages on this year, with more combat sure to come before the 2028 cycle, prominent commentators have highlighted why this trend is bad for representative democracy.
Henry Olsen writes that by drawing district lines with the specific intent of maximizing the number of districts a particular party will win the crucial link between voters and election outcomes is severed. Think California, Florida, and Texas, the country’s most populous states, where roughly 60% of voters favor one party over the other while the district distribution is likely to be closer to 90-10 in each state after the fall elections.
And of course the gerrymandering goes far beyond just these three states. As a nation we run the risk of holding House elections that are unresponsive to changes in the political climate — remember the House is the only federally-elected institution that is meant to reflect the public’s will on a short term, regular basis. The Senate? Only a third of its members are up any cycle. The presidency? We probably don’t need to remind anyone that it’s the electoral college that determines the victor, not necessarily the winner of the popular majority.
Not only might elections be unresponsive, but even worse: extreme gerrymandering may result in a situation where the party that wins a decisive majority of the popular vote in the House could be denied control of the chamber.
Two fixes
There are two main approaches that seek to address gerrymandering-gone-wild. One represents radical reform, the other a more process-oriented change that is less of a dramatic structural departure from the status quo.
Proportional representation (PR) has been put forward by both Olsen, Lee Drutman, and others. In the Post article cited above Olsen describes systems used by Switzerland, Finland, and Israel, all of which, if one were to adapt the ideas to the U.S., would entail federal legislation mandating that states eliminate districts and instead apportion House seats based on a percentage of the vote a party receives. For example, voters would be presented with two (or more) party lists of candidates. As a voter you’d pick your preferred list. A party with 60% support in the state would garner that portion of House seats or as close as it could be estimated.
Congress could also mandate a process that outlawed nakedly partisan gerrymandering. It is generally accepted that district line-drawing is fairer if the resulting map achieves three things: Contiguity, Compactness, and respect for Municipal boundaries (CCM for short). Legislation might, for example, require non-partisan commissions to oversee a computer-driven mapmaking process (programming is already used by both parties across the country to maximize their share of the seats when they are in control) that adheres to the CCM principles. One scenario would have the commission present, say, five allowable maps to the state legislature, from which it could choose one.
Pros and cons of PR
If proportionality reflects one’s view of what constitutes fairness, then PR may be the best choice. One downside in that in PR systems it is hard to maintain the traditional district-member connection. Israel takes a stab at it by forming party lists based on direct primary results, but, still, if this were done in U.S. states any given constituency might not end up with someone from their area in the House.
PR is also preferred by those who think the two-party system has exhausted its usefulness. It’s a system in which third parties could much more easily gain a foothold than with the winner-take-all single member district system currently in place.
PR is a radical approach to the problem that is certainly preferable to the all-out gerrymandering war. But it would, as noted, result in the severing of the member-district connection. Over time it could also result in a multi-party system that rewarded extremist elements. Cases in point include Israel, where ultra-orthodox communities hold undo sway in a multiparty system; France, where the nationalist right wing has come very close to gaining power; and now even Britain, as Reform UK has surged at the local level.
The good and bad of the technocratic solution
The technocratic solution that would enforce computer-driven mapmaking based on the idea districts should be compact, contiguous, and observe municipal boundaries is the less radical approach. It retains the local connection to the representative and promises to be fairer than ultra-partisan gerrymandering. It also could be structured as suggested above such that legislatures would retain some say, choosing from among several options that meet the CCM criteria.
The downside is that districting in a given state might, based on where people live, result in a highly disproportionate number of representatives from one party or another. The fairness principle in this system, thus, is not strict proportionality; rather, it’s more a negative idea. That is, this approach to districting is fairer based on what’s not involved — and that, of course, would be partisanship.
Democrats tried to legislate in 2021
The Freedom to Vote Act that Democrats put forward in 2021 would have had the effect of not just outlawing extreme partisan gerrymandering but also guaranteeing a certain level of proportionality in seat distribution at the state level.1 After all, a given party’s voters might be geographically concentrated in just a few districts to the extent that it wasn’t competitive in most of the state’s districts while still garnering, say, 45% of the popular vote.
Of course this so-called “inefficient” distribution of a party’s supporters is a fact of life. Democrats are concentrated in and around urban areas, and Republicans are concentrated in smaller towns and rural areas.
There was a time, in recent years up until 2016, when in fact one party was disadvantaged when it came to the national results by the way its voters were distributed. Democrats traditionally had more districts they won with 80+% and also more when you considered those with margins of 25% or higher. And in 2012, for example, Democrats won more popular votes for the House but Republicans got the majority of seats. Regularly Republican representation outstripped its percentage of the vote in those days.
Since 2016 that doesn’t happen, as the Trump-inspired realignment of party support has actually resulted in Republicans winning more seats by large margins than Democrats in recent cycles. This is due to increased support in those small towns and rural areas just as Democrats are winning more seats in outer ‘burbs that might once have gone Republican.
But, as it happens, the myth of Democrats being at a disadvantage with non-partisan gerrymandering lives on. They were accused during the Freedom To Vote Act debates of trying to engineer better outcomes by requiring some level of state-by-state proportionality even though the relevant provision wouldn’t have necessarily worked to their benefit when applied nationally. (Some Democrats even believed it would — having apparently not updated their thinking with recent facts.)
The situation today
Of course at this point the spate of mid-decade redistricting will work to the GOP’s advantage at least in 2026, maybe to the tune of adding 10 or more seats and even possibly enabling the party to win a controlling majority while losing the popular vote. Democrats may make up some of the difference in 2028.
The best way to end the gerrymandering war would probably be to revive some form of the Freedom to Vote Act, leaving out the controversial state level proportionality requirement. Banning districts that resemble salamanders by mandating compactness and respecting community boundaries isn’t a perfect solution — some states would end up with disproportionate results as was noted above. But when it comes to the national results, which is what really matters, such a process would not give a particular advantage to either party. And there’s a bonus advantage: it would probably result in more competitive seats — there are only a couple of dozen this year — and thus a more responsive House of Representatives, just as it was intended to be.