How Democrats Flubbed the Gerrymandering Arms Race

Texas Republicans forced through a partisan redistricting map last weekend that should allow the GOP to gain an additional five seats in the House of Representatives during next year’s midterm election. The map gives the state’s white voters, who make up only 40 percent of Texas’s population, control of 73 percent of the state’s congressional districts. On Tuesday, the NAACP sued Texas, alleging that its map is unconstitutionally racist.

There is no real hope that the Supreme Court will stop Texas or white people from overrepresenting themselves in Congress. The more practical response is for other Democratically controlled states to play hardball and aggressively gerrymander their congressional districts to counteract Texas. Trying to live in a society with Texas is like trying to share a Thanksgiving turkey with a rabid dog: All you can do is snatch some flesh with your hands and take your vaccinations. Etiquette and manners are no use here.

California has already started the process. Democrats have proposed their own new congressional map that will be on the ballot as a voter referendum this November. But, predictably, other red states, including Ohio, Missouri, and, of course, Florida, are already looking into how they might gerrymander their states to counteract California, which is counteracting Texas.

The next logical player to enter this gerrymandering arms race should be New York. Earlier this month, Governor Kathy Hochul shifted her position on the issue and embraced a full-fledged partisan redistricting of the state. Hochul has generally been the weakest of the big blue-state governors in standing up to Trump and his fascist junta—behind Illinois Governor J.B. Pritzker (who has already gerrymandered his state to the hilt) and California’s Gavin Newsom (depending, that is, on which side of Charlie Kirk’s forehead he wakes up on in the morning). But she’s running for reelection and the rise of New York City’s Zohran Mamdani has put the fear of God into her, so now she wants to talk tough.

The problem is: It’s surprisingly difficult to gerrymander New York, and nearly impossible to do it mid-decade, between the decennial Censuses. The obstacle is not federal law or the shambolic New York State Democratic Party, but changes New Yorkers made to their state Constitution a decade ago. Those changes, made with the best of intentions, have hobbled Democrats nationally, by making one of their bluest states more fair to Republicans who never play fair themselves. New York is a cautionary tale about how Democrats defeat themselves with rules Republicans refuse to play by. It is a stunning example of why Democrats fail, and when future, alien archeologists are trying to explain the downfall of American-style democracy, they’ll point to the pro-democracy party’s unwillingness to manipulate democracy to protect it.

In 2014, New Yorkers (including myself when I was younger and more naïve about the possibility of comity with my enemies) approved an amendment to the state Constitution that was meant to outlaw partisan gerrymandering. The amendment said: “Districts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.”

At that point, voters like me probably would have approved the summoning of a council of benevolent mega fauna, helmed by Aslan or Mustafa, to draw maps in the most just and fair way. But instead New York did the next best thing, and created an independent redistricting commission, made up of an even number of Democrats and Republicans, which would draw the maps for us, subject to legislative approval.

All that sounds good. But from there it gets complicated, because the New York State Legislature is required to approve the redistricting commission’s maps, and if it doesn’t or if the commission itself cannot agree on the map (which happens sometimes, because whoever thinks there should ever be an even number of commissioners for anything needs to be punted into the sun), the map gets drawn by the legislature, and the results generally end up in court.

That’s what happened ahead of the 2022 midterms when New York’s foolishness pretty much cost Democrats control of the House for the back half of Joe Biden’s term. The redistricting commission proposed two different maps; both were rejected by the Democratically controlled New York State Legislature; the legislature drew its own map; the New York Court of Appeals (which is what we call our highest state court because we’re super special) rejected the map as an unconstitutional partisan gerrymander; the court appointed a “special master” to draw a new map; and that map cost the Democrats the House.

Political scientists from the Hudson River to the Pacific Ocean blamed the state Democrats for our colossal failure, so the legislature got to work on new maps. The state Constitution normally prohibits congressional maps from being redrawn, mid-decade, with one exception: in a case where the current map was drawn outside of the normal redistricting process. That exception allowed the legislature to draw yet another congressional map ahead of the 2024 elections, and that is the map New York is poised to use for the 2026 midterms. Because the current map was drawn through the normal process, the state Constitution prohibits New York from changing its map again until the next Census in 2030.

Constitutions can, of course, be amended. New York State Senator Gianaris and Assemblyman Micah Lasher have introduced an amendment that would allow New York to redraw its congressional maps, mid-decade, if another state does it first. Unfortunately, amending the New York State Constitution is more difficult than navigating the city below Canal Street. Starting from now, the earliest New York could amend its Constitution to redraw its maps would be ahead of the 2028 election.

The Gianaris-Lasher amendment doesn’t actually solve the problem anyway, because their proposal does not include ridding New York of its constitutional prohibition against partisan gerrymandering, which is what got the legislature’s 2022 map kicked in the first place. Any new map in New York that is as aggressive for Democrats as Texas’s map is for Republicans would likely be struck down by a New York court as unconstitutional.

Gianaris defended his choice to leave New York’s partisan gerrymandering ban alone, saying: “We don’t need to sacrifice our principles to do our work.” But he’s demonstrably wrong. We do indeed need to sacrifice our principles on this issue to beat the people who don’t have any. That’s how a race to the bottom works.

New York’s 2014 anti-gerrymandering amendment was adopted in a world that no longer exists. That world was destroyed in 2019 by the Supreme Court in its decision in the case of Rucho v. Common Cause. In the ruling, John Roberts divined that partisan gerrymandering is “nonjusticiable,” meaning that courts cannot regulate gerrymandering done by states when the gerrymandering is done to give one party an unfair advantage over the other. As long as states are only trying to destroy democratic competition, Roberts says it’s OK. It’s one of the worst Supreme Court opinions of all time, and it has opened the floodgates to partisan gerrymandering wider than ever before.

New York’s redistricting rules amount to unilateral partisan disarmament in a post-Rucho world. New York University Law professor Noah Rosenblum (who also helped me work out New York’s byzantine redistricting process) explained the core error with New York’s rules. He told me, “Independent redistricting commissions only make sense against a backdrop of every other state adopting independent redistricting commissions, or the courts enforcing independent redistricting. That backdrop does not exist.”

I don’t know anybody who is a fan of small-d democracy who wants to live this way. There is no obviously right solution to gerrymandering, but most people understand that the answer we’ve arrived at is wrong. John Roberts has decided that Republicans must be allowed to do the very worst thing they can think of at all times, and places like Texas excel at coming up with the absolute worst thing.

New York State Democrats, and Democrats more broadly, cannot continue to fight while hamstrung by their own best intentions. Instead of perpetually fighting the good fight, Democrats should try fighting to win. They should get rid of their anti-gerrymandering chastity belt, and then gerrymander this state so hard that a pan of Chicago soufflé they call “pizza” has a better chance of winning a contest here than a Republican.

I know Democrats won’t, but I no longer understand why. I too once thought the 2014 amendment was a good idea. Then I grew up and changed my position based on new information from the Supreme Court. It would be nice if the state Democratic Party joined me in adulting.