I’m bringing over here to ELB part of a Twitter dialogue that’s emerged in the wake of my post this morning on Gerrymandering as Democracy Protection??? In response to an exchange I had with Rick Hasen on this topic, Nick Stephanopoulos added this tweet: “It’s critical to distinguish congressional and state legislative gerrymanders by Democrats. The latter are indefensible. They skew representation and don’t serve national fairness. But the [former] indeed advance the absolutely vital goal of a fairly constituted House.”

In a forum more conducive than Twitter to deliberative intellectual inquiry, I want to explain why I respectfully but strongly disagree with Nick on this point.

First, 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 of the House (assuming the national electorate as a whole is split 50-50 between blue and red votes). Overall partisan balance of a legislative assembly is not, in my view, the be-all and end-all of a fair redistricting map. A duopolistic divide of all House seats, at the expense of competitive elections anywhere, would not be in the interest of the nation’s voters, even if it would not be to the net disadvantage of either major political party.

Second, and more importantly, I don’t think it’s appropriate to look at this issue from an exclusively national perspective. Article I of the Constitution entitles “the people of the several states,” on a state-by-state basis, to elect Representatives to the House every two years. To judge the fairness of these House elections, one must (in my view) evaluate the fairness of the electoral arrangements by which the voters of each state get to choose their state’s Representatives to the House. If and when the Constitution is amended to create a national legislative assembly that’s not structured on the separateness of the states in our federalist system, the relevant analysis presumably would be different (although the first point, above, still would apply). Until then, however, there is (or should be) no offsetting one party’s unfairness to the voters of North Carolina, for example, by the opposing party’s unfairness to the voters of New York.

If one thinks Rucho was wrongly decided, as I do, then one would want the Court to undo partisan gerrymandering of congressional maps on a state-by-state basis, not based on some overall national standard. Likewise, if one applauds (as I have) the use of state constitutional law by state supreme courts to negate partisan gerrymanders of congressional maps, then one must be at least presumptively supportive of the idea that New York’s high court would invalidate an aggressive partisan gerrymander by Democrats of the state’s congressional districts–and New York’s high court would do this without considering the relationship of its state’s gerrymander to the gerrymandering of congressional maps in Texas and other states. (I haven’t looked into the details of New York state constitutional law to assess whether there are any countervailing considerations to this presumptive point.)

Third, I don’t think one should ignore the way in which gerrymanders interact with other elements of the electoral process to undermine representative democracy. While the acute problem of Trump’s dominance of GOP primaries affects Senate, gubernatorial and other types of elections besides those for the House (and while statewide elections are not subject to gerrymanders), the role of a Trump-dominated primary in the race for a gerrymandered House district is especially pernicious. After winning the primary for a gerrymandered House seat, there’s no need to tack back towards the center of the state’s electorate to win the general election, as is true for Senate seats. Consequently, the insurrectionist wing of the Republican Party is likely to continue dominating the party’s caucus in the House much more than in the Senate, as was true on January 6, 2021.

For Democrats to perpetrate their own gerrymanders in New York, Illinois, and elsewhere does nothing to reduce the risk of Insurrection 2.0 on January 6, 2025 fueled by GOP gerrymanders turbocharged by Trump-dominated primaries. It is mistaken to think (and this point is directed less specifically at Nick, and more at current congressional Democrats) that Democratic gerrymanders will prevent a Speaker Kevin McCarthy from being beholden to Trump, if and when Trump calls upon McCarthy and his caucus to subvert the results of the 2024 election on January 6, 2025. Rather than trying to gerrymander their way to retaining control of the House so that there’s no Speaker McCarthy (an outcome that may not be achievable no matter how hard Democrats try to gerrymander the retention of their slim majority), Democrats should be thinking about the kind of structural reforms that would lessen Trump’s vice-like grip on a Speaker McCarthy if and when Republicans do take control of the House.

Remember, in the immediate aftermath of January 6, McCarthy tried to distance himself from Trump. But then he quickly snapped back in line, because the pressures of the existing system-(caused by the relationship of party primaries to gerrymandered districts) was too great to resist. What have Democrats in Congress done since then to change the structural arrangements that generate that intense pressure? Matching GOP gerrymanders with counter-gerrymanders of their own is surely not the way for Democrats to liberate a future Speaker McCarthy from control of a candidate Trump seeking to subvert his way back into the White House.