After the long-anticipated 2022 midterms, Republicans appear likely to emerge with the narrowest of majorities in the US House. If the GOP’s current advantage holds, they’ll have partisan gerrymandering to thank.
The day after midterm balloting, NBC News projected that Republicans will win 220 seats. The New York Times needle, at 224, was slightly more bullish. If the final number falls somewhere within that range, it will mean that between three and seven seats will make the difference.
The New York Times and the know-it-all campaign savants at the Times-branded political site The Upshot declared this decade’s maps the fairest in years—and much of the media mainstream followed their lead. But the apostles of this confident appraisal remained blind to the way state after state dismantled competitive seats, diluted minority voters (with an assist from the US Supreme Court), and allowed lawmakers drawing district lines to declare the winners. As a result, the maps ultimately produced a photo finish that only highlighted the immense power of gerrymandering.
An aggressive—and likely unconstitutional—partisan and racial gerrymander demanded by Governor Ron DeSantis helped provide Republicans with four of those seats from Florida alone. Maps that likely violated Voting Rights Act (VRA) protections against racial gerrymanders were allowed to proceed in Alabama, Georgia, and Louisiana. A conservative district court in Texas endorsed a blatantly discriminatory congressional there that reduced the political power of Latinos even as they drove 95 percent of the state’s population growth over the last decade.
Wisconsin’s conservative court mediated a redistricting deadlock between the Republican-controlled legislature and Democratic governor by mandating a new map that made the fewest possible changes to the current one—meaning that the previous decade’s toxic GOP gerrymander was locked in place for another 10 years. In Ohio, meanwhile, the state supreme court twice rejected congressional maps drawn by GOP lawmakers as unconstitutional partisan gerrymanders. A bipartisan majority of justices declared these maps wildly out of line with a 2018 statewide initiative backed by more than 70 percent of voters mandating that districts be drawn up with lines that did not favor or disfavor any political party, to better bring them into alignment with the state’s partisan balance. Lawless GOP officials used the maps anyway. They ignored the courts, ran out the clock, and—won 10 out of 15 House seats—two-thirds of the delegation—in a state where J.D. Vance defeated Tim Ryan by only 53.3 percent to 46.7 percent for the US Senate.
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Pretty soon, these gift-wrapped seats begin to add up, especially when the national voting margins seem to be tight. Four seats in Florida, three across the Deep South, another handful from Texas and Ohio, one in Wisconsin, a pickup in Iowa won from playing hardball with the state’s independent commission, one in Arizona from hijacking that state’s “independent” in name only commission, another gain in Tennessee by cracking Nashville in half: More than a dozen newly Republican seats came not from ousting Democratic incumbents but by redrawing districts to their advantage.
Florida provided the largest windfall. After GOP lawmakers passed a largely status quo map, DeSantis pushed back and overruled the legislature. A ProPublica investigation found that his administration worked closely with national GOP lawyers and operatives to draw a new array of gerrymandered districts. The entire effort likely violates the Florida state Constitution, which voters amended in 2010, with overwhelming majorities, to ban partisan gerrymandering.
But like the leaders of the Ohio Republican Party, DeSantis brushed aside the people, his state Constitution, and the courts. His map-rigging team was determined to push a 16-11 GOP edge all the way to 20-8. They accomplished this by dismantling Florida’s fifth district, a majority-minority seat held by Democrat Al Lawson, cracking it into four smaller pieces, and attaching each to an overwhelmingly white Republican district. Florida’s Supreme Court defended the state’s Constitution and overturned last decade’s map, finding that the GOP had engaged in a conspiracy to conduct a hidden, parallel map-making process alongside the one first approved by the legislature. But Florida’s current court, packed with DeSantis cronies, allowed the rigged map to stand.
It worked as expected: Republicans netted those four seats Tuesday, handing the GOP 70 percent of the House delegation in a state Donald Trump carried in 2020 with 51.3 percent (and that DeSantis won in 2018 with just 49.6 percent).
This week, right after elections were held using these gerrymandered maps, a three-judge panel allowed litigation against them to proceed to discovery. But this is a long process; litigation against Florida’s 2011 maps proved successful in 2015 and led to new maps ahead of 2016. Inconveniently for cheated Democrats, that ruling came with no time-machine provision to rerun the 2012 and 2014 elections. Nor did Barack Obama get a redo on his second term with the Democratic US House that voters tried to elect by mobilizing 1.4 million more votes than Republicans did, only to be stymied by GOP maps. Stalling is the entire point. Steal a cycle, maybe two. And then let conservative courts handle the rest.
In Alabama, meanwhile, where seven congressional districts and a 27 percent Black population should have opened the door to two districts for Black voters to elect a candidate of their choosing, GOP lawmakers instead packed most Blacks into one tentacle-shape district, and then diluted the rest across the remaining House maps. It was such a textbook violation of section 2 of the Voting Rights Act that even a federal three-judge panel filled with Trump appointees demanded a new map. But when the case reached the US Supreme Court on appeal, the conservative majority blocked that ruling—over the objections even of Chief Justice John Roberts—hardly a friend of the VRA). In his dissent, Roberts wrote that existing law and long-standing precedent had been correctly applied.
That decision, in turn, pushed still another federal judge to OK Georgia’s racial gerrymander, even though the judge believed that it also violated the VRA. Later in the summer, the US Supreme Court would place its thumb on the scale again, reinstating a congressional map in Louisiana that a federal judge had blocked as a racial gerrymander. Black voters and others across Southern states now deprived of the preclearance protections of the VRA’s Section 5, effectively ended in the Shelby County v. Holder case in 2013, suddenly found themselves stripped of any safety net whatsoever.
The high court had already decided in 2019’s Rucho v. Common Cause that partisan gerrymandering was a nonjusticiable political issue beyond the purview of federal courts. And in this recent set of rulings, the court’s emboldened conservative majority enacted a separate and unequal playing field for the redistricting cycle that led directly to this midterm election. State courts might step in and declare these kinds of partisan gerrymanders unconstitutional. But that would provide little comfort in states such as Florida, Texas and Georgia, where state courts were long ago annexed by the right. (State supreme courts in North Carolina and Ohio flipped over to conservative majorities in the 2022 midterms, all but ensuring that Republican lawmakers in both states will rework maps mid-decade into airtight gerrymanders.)
To get a clearer sense of our near-term future, just compare New York—where Democrats sought to elude reforms passed by voters in order to enact an extreme gerrymander of their own—with Florida. Florida’s courts worked to undermine reforms won by voters via constitutional amendment—as they did two years earlier, when voters ended the state’s long-standing felon disenfranchisement efforts, only to have the court effectively reinstate them, this time with a modern-day poll tax. But New York’s state supreme court, properly, refused to allow the legislature’s chicanery to stand. The court, finding that the legislature could not be trusted to draw a constitutional map, handed the responsibility instead to a respected and independent special master—who drew a responsive and balanced map on which Republicans could make some of their biggest gains outside Florida. The New York Democrats who enacted this losing and antidemocratic effort should be out of work; they helped cost their party control of Congress. Yet there were no similar consequences when Republicans ran the same play and defied the courts.
It’s a judicial game of heads I win, tails you lose: Win on fair maps elsewhere, and entrench safe Republican districts in the states the GOP controls. There is no rule of law when one side listens to the courts, and the other packs them with relatives of state elected officials—and, if a decision does not go their way, ignores the decision like Stalin scoffing over the size of the pope’s army.
Tuesday did bring some good news: State legislatures in Michigan and Pennsylvania flipped for the first time in decades, as new maps drawn by, respectively, a commission or with court assistance proved responsive to the will of the people. It’s good that some of the overall GOP bias in the maps has been erased; it’s less appealing—and a reminder of the inherent bias with any system of winner-takes-all, single-member districts—to recall that much of that is due to Supreme Court–sanctioned maximal gerrymanders everywhere.
But overall, this election—and the likely near-miss for preserving the Democrats’ majority in the House—only reinforces the power of gerrymandering to determine results. Republicans drew many more districts than Democrats this time around, as they did after 2010. And in a tight battle for control of Congress, that edge proved decisive. Democrats, of course, aren’t blameless here, especially Senators Joe Manchin and Kyrsten Sinema: They could have used complete control of Washington to put an end to partisan gerrymandering, but never brought any real urgency to the issue and failed.
Things will only get harder in 2024. You may not read about in The Upshot, but it’s entirely likely that Ohio and North Carolina will be the Florida of 2024, with new, mid-decade congressional redraws that add another five or six safe red seats to the already steep hill Democrats must surmount. All this legally sanctioned ballot chicanery will work to further entrench the anti-majoritarian lean of the most representative arm of the national legislature and accelerate our turn toward one-party minority rule.
