Shifting the Abortion Debate to the States: The Gerrymandering Angle?

(From Bruce E. Cain)

As people come to grips with the seismic political impact of the Dobbs v Jackson decision last week, the question of partisan skew in the state government landscape has come up.  An example is this recent piece in the NYT that asserts the Supreme Court’s decision “has shifted the abortion debate to state legislatures where gerrymandering has given the Republicans an advantage.” It then cites the fact that “Republicans control 23 state legislature while the Democrats lead 14-with 12 bicameral legislatures divided between the parties.”

To be clear, those numbers are the trifecta versus divided government states.  Another way to characterize the facts is to say that Republicans can impose their will in less than half the states at the moment. 

Whether they will have a better trifecta situation in 2023 is the question relevant to redistricting.  Leaving aside how this decision and the ominous warnings in the Thomas concurrence might change voter attitudes in the coming months (my hunch is that it will in significant ways), the gerrymandering angle on this is a call to all fellow redistricting nerds (I know you are out there in ELB land) to scrutinize these claims in the press more carefully.

Looking at the big picture, we should keep in mind that the state governments overall are more majoritarian than the Federal government. The reapportionment decisions converted the upper houses to “one person, one vote.”  Twenty-three states elect their Supreme Courts directly. Similar numbers of states have various forms of direct democracy including ability to put recalls, referendums and popular initiatives on the ballot. There are non-legislative ways to block the most extreme shifts at the state level that do not exist at the national one.

Without overdoing the point, it is important to realize that if the median voter truly lies the left of the Supreme Court on abortion issues, this is different from the more typical minority rights dispute.  The abortion issue concerns the rights of a population majority (women) supported by a majority of voters.

Secondly, the cursory assessment in the NYT of the inherent bias in the state legislatures demands closer scrutiny by all of us in ELB land.  I will offer just a few preliminary thoughts.  To begin with, the preliminary assessment by election handicappers such as 538 and the Cook report is that the Republicans took a cautious approach to redistricting this round, aiming to consolidate seats rather than aggressively expand their numbers.

Hey, if Donald Trump was the leader of your party, how confident would you be that the future for your party? Yes, the status quo bakes in some gains from the previous rounds and creates a higher protective wall against adverse electoral waves, but our thinking about electoral safety has changed. 

The number of people classifying themselves as independents has risen dramatically over the last couple of decades.  This means that simple Dem-Rep registration scores are not as meaningful as in the past.  And while the number of very competitive seats (e.g. plus or minus 5 points) has dropped as Lee Drutman and Rick Pildes have noted, it is common now for handicappers (e.g. 538) to define potentially competitive seats out to 15 points.

Like our weather, extreme political shifts may be more likely now that ever.  Political climate change may be in the offing.  We shall see.        

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