Recommended: two posts by Ohio State law professor Ned Foley on Election Law Blog, here and here, on whether it’s commendable or defensible for one party (in this case Democrats) to gerrymander where they can since the other party (in this case Republicans) has gerrymandered in so many of its states.
Foley’s first post takes up claims that the situation for liberals is simply too serious not to take advantage of every tactical opening. (Legislatures controlled by Democrats have lately enacted extreme partisan gerrymanders in states like New York, Illinois, and Maryland, and at least one commentator estimates that Democrats may be set to gain seats overall from this redistricting cycle, notwithstanding widespread predictions to the contrary.) “There has been a sense in the caucus, given that we view this as an election to defend democracy against insurrection and coups, that we have to do everything we can do,” said Rep. Jamie Raskin (D‑Md.).
This won’t do as a rationalization, in Foley’s view. “The basic attitude that motivates partisan gerrymandering is a desire to hold power despite the electorate’s desire to make a different choice,” he writes. That “should never be part of the pro‐democracy effort.” In particular, “competitive electoral democracy entails the political parties taking turns depending on the changing preferences of voters.” To support democracy in practice therefore means to support “a set of institutions that enables Republicans to have a turn at governance if that’s what the validly cast and counted ballots dictate.”
Foley’s second post goes further into the weakness of the arguments for what might be called retaliatory gerrymandering, a somewhat tricky term since the upper hand in gerrymandering has cycled back and forth between the major parties for a very long time. “Even from a national perspective, I don’t think it would qualify as a ‘fairly constituted House’ for Democrats to gerrymander half the House seats in response to GOP gerrymandering of the other half.” But a national measure of fairness is far from the only relevant criterion, nor necessarily the best. Article I of the Constitution bestows the power to select House members on “the people of the several states,” on a state‐by‐state rather than national basis. That suggests a relevant constitutional duty of fairness toward the electorate of the particular state for which lines are being drawn, not merely some national constituency. (I make this argument constantly in my own state of Maryland, if mostly in vain.)
On the level of practical politics, Foley argues, blue‐state gerrymanders tend to drive moderate Republicans toward extinction in favor of carving out fewer but super‐safe seats dominated by the Republican base. That contributes to the difficulty of reining in extremist impulses within the House GOP caucus.
The first post also includes a bonus discussion of ranked choice voting and how it could “alter the institutional dynamics” that currently tend to keep party nominees dependent. It’s also worth noting, by the way, that Prof. Foley was one of the four scholars (along with Michael McConnell, Bradley Smith, and Richard Pildes) of a useful and pointed Washington Post opinion piece on the need for Electoral Count Act reform that has helped move the ball along on that topic.
