Demonstrators protest against gerrymandering at a rally at the Supreme Court during the gerrymandering cases Lamone v. Benisek and Rucho v. Common Cause.(Evelyn Hockstein / For The Washington Post via Getty Images)
As I write this, control of the United States Senate and House of Representatives are still up for grabs, but it appears that Republicans will gain a slight advantage in the House. The fact that it’s even close is amazing given the cascade of polls predicting a “red wave” and the historical trend that the party of a first-term president gets absolutely whupped in the midterm elections..
Still, while I’m thankful Democrats didn’t get blown out of the chamber, I’m not willing to overlook the structural roadblocks Republicans engineered that saved them from further embarrassment. If Republicans do in fact win control of the House, there is a primary reason for their success: They gerrymandered themselves to victory. Districts drawn to produce Republican success more or less produced Republican success.
We can’t act like gerrymandering like this is inevitable or intractable. We are in this situation because of decisions made by aggressive Republicans (and sometimes self-defeating Democrats) to allow democracy to be decided in a map room instead of a polling station. The Republican gains produced this week have their origins in a series of antidemocratic decisions, and until that changes, until Democrats work harder to fight those kinds of decisions, Republicans will come into every election with an unfair advantage.
The first culprit is the very data that gerrymanders are based on, the 2020 Census. As I explained here, the 2020 Census was broken and should have been thrown out and redone. It was a census taken during a pandemic. It was a census led by Republican forces who were actively trying to manipulate its outcome. The Biden administration and the Democratic-controlled Congress should have used maximal power to abandon the purposefully broken Trump Census and commissioned a new count. The refusal to accurately count the number of people living in the country was the first step in disenfranchising scores of people through political gerrymanders.
The second culprit is mainstream-media darling and chief justice of the Supreme Court John Roberts. While inexplicably viewed as a nonpartisan figure, Roberts has used his influence to deliver victories in two cases critical to promoting the Republicans’ long term electoral desires. The first was in 2013, when he gutted the Voting Rights Act in Shelby County v. Holder. The second was in 2019, when he allowed unfettered political gerrymandering without federal court oversight in Rucho v. Common Cause. The Rucho case ruled gerrymanders “nonjusticiable,” which means that as long as legislatures claim they drew their maps for purely political reasons, those maps cannot be challenged in federal court for constitutional violations (they can still be challenged in state court, but that doesn’t necessarily help under all state Constitutions). It set the stage for red states to aggressively redraw their maps, unconstitutional disenfranchisement of voters be damned.
And red states did just that, especially Florida. There, the Florida legislature drew a redistricting map that largely preserved the pre-Census congressional districts, giving Republicans a slight but not overwhelming advantage in representation. Florida Governor Ron DeSantis wouldn’t accept those legislative maps and ordered them redrawn. The DeSantis approved map “cracked” half of the state’s majority Black districts and split them up among overwhelmingly Republican districts. The new districts paid off, netting Republicans three additional seats in Congress on Tuesday night.
The DeSantis gerrymander was challenged in court—but it was state court because of the Rucho decision. Since conservatives control the Florida state supreme court, they handed DeSantis and the Republican party a victory in the redistricting case.
Conservatives also control the highest state court in New York, which is another state that produced significant Republican gains in the House. For that, we have to thank former New York Governor Andrew Cuomo. As governor, Cuomo appointed two “former” Republicans and two conservative “Democrats” to the state court of appeals (the highest court in New York). Those four tend to vote as a bloc.
The makeup of the court is relevant, because in 2014 Cuomo pushed through an amendment to the New York State Constitution that aimed to stop gerrymandering. The bill partially took the task of redistricting out of the state legislature and put it in the hands of a bipartisan committee appointed by the state legislature; this committee was charged with drawing maps that would then be approved by the legislature. It wasn’t the most artful reform—in particular, it didn’t require the committee to take account of communities of color—but it was a start.
By 2021, when it came time for redistricting, Democrats held a super-majority in the state legislature, but because of the new reform, they couldn’t go nuts like DeSantis did in Florida. Still the legislature approved a map that largely corrected gerrymanders done by Republicans after the last Census, in 2010.
Republicans challenged the maps, and the New York court, by a vote of 4-3, decided to throw out the legislatively approved maps. But instead of telling the committee to do a better job and punting approval back to the legislature, the conservative judges took it upon themselves to appoint a “special master” to draw new maps and then forced the state to use them.
With a hostile incoming administration, a massive infrastructure of courts and judges waiting to turn “freedom of speech” into a nostalgic memory, and legacy newsrooms rapidly abandoning their responsibility to produce accurate, fact-based reporting, independent media has its work cut out for itself.
At The Nation, we’re steeling ourselves for an uphill battle as we fight to uphold truth, transparency, and intellectual freedom—and we can’t do it alone.
This month, every gift The Nation receives through December 31 will be doubled, up to $75,000. If we hit the full match, we start 2025 with $150,000 in the bank to fund political commentary and analysis, deep-diving reporting, incisive media criticism, and the team that makes it all possible.
As other news organizations muffle their dissent or soften their approach, The Nation remains dedicated to speaking truth to power, engaging in patriotic dissent, and empowering our readers to fight for justice and equality. As an independent publication, we’re not beholden to stakeholders, corporate investors, or government influence. Our allegiance is to facts and transparency, to honoring our abolitionist roots, to the principles of justice and equality—and to you, our readers.
In the weeks and months ahead, the work of free and independent journalists will matter more than ever before. People will need access to accurate reporting, critical analysis, and deepened understanding of the issues they care about, from climate change and immigration to reproductive justice and political authoritarianism.
By standing with The Nation now, you’re investing not just in independent journalism grounded in truth, but also in the possibilities that truth will create.
The possibility of a galvanized public. Of a more just society. Of meaningful change, and a more radical, liberated tomorrow.
In solidarity and in action,
The Editors, The Nation
The consequence of letting conservative judges pick the districts, instead of a Democratic legislature, showed up on election night in New York. The Republicans are poised to pick up four new congressional seats, thanks to, among other things, a victory over Sean Patrick Maloney, the chairman of the DCCC (sorry, not sorry).
The GOP needed to net just five seats to flip control of the House, and seven were nearly handed to them by New York and Florida alone—because one court stepped in to force a pro-Republican gerrymander and another court refused to step in and stop one. And all the while, the Supreme Court acts like it’s not its problem that Republicans are jamming the levers of democracy, and Senators Joe Manchin and Krysten Sinema block laws to secure equal representation by holding on to the antidemocratic filibuster.
Given this reality, Election Day could have been much worse for Democrats. The party bucked historical trends, turned out its voters, and won crucial statewide races it was projected to lose. But Republican governors, legislatures, and judges have stacked the deck so that a merely good night isn’t enough—Democrats need to have great nights to stay in the game. And if they want to do even more than stay in the game, they have to wipe the floor with Republicans.
In 2024, Democrats will have to fight all of these Republican gerrymanders again, plus the notorious Electoral College, which also favors Republican candidates. Even though voters largely rejected antidemocratic candidates, the antidemocratic gerrymanders still produced Republican victories. If losing only a little feels good, it’s because the system is designed to make Democrats lose by a lot.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.