While denouncing Republicans for gerrymandering as attack on democracy, Democratic figures like lawyer Marc Elias are under attack for raising millions to support Democratic gerrymandering. Elias previously declared “Republicans gerrymander like this because they do not want free and fair elections.” (Elias was previously accused of lying to conceal the Clinton campaign’s funding of the Steele dossier, has sought to reverse election results, and has been sanctioned by the courts). Notably, the raw gerrymandering in New York not only seeks to rig the coming elections but openly flouts the will of the voters who repeatedly demanded that the practice stop in their state.
Here is the column:
“Voters should choose their representatives — not the other way around.” With those words late Friday night, President Biden celebrated a decision by North Carolina’s supreme court rejecting new state legislative districts that favored Republicans. The ruling was used to support Biden’s past portrayals of Republicans as the enemies of democracy, including their use of gerrymandering.
Biden is not alone. Former President Obama condemned Republican gerrymandering efforts as threatening democracy. The liberal Brennan Center has declared that “gerrymandering is deeply undemocratic.” Liberal commentators insist the choice is simple: “It’s restricting gerrymandering or being complicit in the dismantling of democracy.”
Biden was careful to keep his focus on North Carolina in stating that “for too long, partisan gerrymandering has allowed politicians to rig the political process and draw districts in their favor.” Indeed, it required an impressive act of myopia to avoid noting that Democrats have engaged in raw gerrymandering in various states, too. But the North Carolina decision could seriously undermine Democratic plans in other states to rig elections and gain seats in Congress.
For example, in New York Democrats want to add four new seats through gerrymandering, to try to retain control of the U.S. House. One district is designed to guarantee the reelection of Rep. Jerry Nadler (D-N.Y.), the chairman of the House Judiciary Committee, which has held hearings on the evil of — you guessed it — gerrymandering.
Gerrymandering is to politics what doping is to sports. It is universally viewed as a cheat, an effort to manipulate districts to guarantee electoral victories. Drafting coherent districts evenly and logically to divide populations is not particularly difficult. School districts usually are designed to evenly distribute populations with schools as center points; those school districts often serve as voting locations. Once you depart from such logical divisions, however, political pressures produce a grotesque progeny of malformed districts.
The Nadler district would make Elbridge Gerry blush. In 1812, Gerry — a Founding Father, vice president and governor of Massachusetts — signed off on a district designed to guarantee a seat for the precursor of today’s Democratic Party. The district resembled a salamander, so the Boston Gazette deemed it the “Gerry-mander.”
Nadler’s district is not the only monstrous creature dwelling on the map. Republicans currently hold eight of New York’s 27 seats in Congress. Despite being a state in which roughly 38 percent of voters went for Trump in 2020, Republicans would have an advantage only in four districts under the redrawn map, allowing Democrats to pick up the other four. For example, Republican Rep. Nicole Malliotakis previously beat an incumbent, Democrat Max Rose, in the 11th District. To guarantee that Rose will now win, Democrats stretched the district to include the liberal area of Park Slope in Brooklyn.
This was not supposed to happen.
In 2014, New Yorkers took the extraordinary step of amending Sections 4 and 5 of Article III of their state’s constitution. They created the New York Independent Redistricting Commission to prohibit drawing maps “for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.” (N.Y. Const. art. III, § 4(c)(5)).
However, the fix was in. After proclaiming a new day of fair and honest elections, the commission was set at ten members divided evenly. Senate Deputy Majority Leader Michael Gianaris, a Queens Democrat, admitted that the commission was designed to fail: “Of course it was. When you have an equal amount of people from either side, you are inevitably going to get a deadlock or a tie. And that’s exactly what happened here.” In other words, all the democracy stuff was a lie. When the commission inevitably deadlocked, the Democratic-controlled legislature went on a gerrymandering frenzy.
Nevertheless, President Biden and Democrats like Nadler are seeking to take control over state election laws in the name of democracy. It does not matter if they are using the same anti-democratic measures as they accuse Republicans of wielding, because their motivations are purportedly pure even if their means manifestly are not.
There will be challenges this year to gerrymandered districts by both parties. While the Supreme Court said in 2019 that political gerrymandering is constitutional in Rucho v. Common Cause, such changes can be struck down when they result in the dilution or suppression of minority voters. The Supreme Court is expected to rule soon on one such race-based challenge to new districts in Alabama. A similar challenge in Illinois failed despite districts that rival Nadler’s in fantastical, illogical shapes to gain Democratic seats.
The North Carolina opinion could complicate things for Democrats, however, if it is applied to other states with anti-gerrymandering laws. The law was notably a gerrymandering case based on partisan rather than racial impacts. The North Carolina court acknowledged the holding in Rucho but voted 4-3 that it could strike down “excessive partisan gerrymandering” on state constitutional grounds. It found that Republican lawmakers drew maps that deprived voters of their “substantially equal voting power on the basis of partisan affiliation.”
The New York districts also are the subject of a lawsuit under the state constitution.
The intent of the voters could not be more clear: While the commission was rigged to fail, voters clearly did not know that and reaffirmed their intent in 2021 when Democratic legislators tried to pass a proposed constitutional amendment to regain redistricting authority if the commission failed to produce redistricting plans. The voters rejected that effort. Thus, these Democratic groups are not only seeking to rig coming elections, but are thwarting the will of voters as expressed in two ballots.
Nevertheless, Gov. Kathy Hochul pledged to “use [her] influence to help Democrats expand the House majority through the redistricting process.” The Democrats and Hochul did precisely that in going ahead and gerrymandering the districts while continuing to condemn Republicans for trying to destroy democracy.
Both parties have engaged in gerrymandering this year — but the blinkered outrage of President Biden to Republican gerrymandering only highlights the hypocrisy of our times. We are left, yet again, with a gang of arsonists espousing fire safety in our political system. Despite voters calling for an end to gerrymandering, their leaders continue to lie to them and frustrate efforts to end this insidious practice.
While the National Democratic Redistricting Committee called for a “Fair Districts Pledge” to “commit to restoring fairness to our democracy,” these politicians have instead followed Oscar Wilde’s rule that “the only way to get rid of a temptation is to yield to it.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.