Gerrymandering California is not the answer
Democrats thinking about retaliating against Texas should think again
Today, those who contend that gerrymandering is bad also propose to do it. This is a big deal and signals that we have reached a total-war state of politics. This post is about how we got here and reasons why Democrats should not respond to partisan gerrymandering with more partisan gerrymandering.
To start, it may be helpful to remember why partisan gerrymandering is bad: Gerrymandering is bad because it treats voters unequally. It breeds contempt and distrust of our political system. It leads to a government and policy that does not match the preferences of the citizens. In short, it is fundamentally undemocratic. Those who want to seize durable and disproportionate political power by redrawing lines, by definition, do not care about voter preferences. They believe their governing vision is so important and so right that they must achieve it by any means necessary. Are we them?
I have some experience with partisan gerrymandering. In Ohio, the Republican-dominated Ohio Redistricting Commission (5R-2D) had drawn state legislative districts for their own partisan advantage. I and many others represented Ohio clients who sued the Commission. The case presented some interesting legal questions, but on the facts, there was no serious dispute: the Commission had gerrymandered the districts. The Republican Secretary of State called the Commission’s redistricting plan “asinine.” Going along with the other Republican commissioners, he voted to approve it anyway.
The case started in 2021. The Ohio Supreme Court ruled in our clients’ favor again and again, but the Commission refused to draw maps that could meet Ohio’s constitutional requirements and, with election deadlines looming, ran out the clock. In 2022, a special three-judge federal court authorized Ohio to hold elections under maps that the Ohio Supreme Court had declared unconstitutional. The elections thereafter handed power to Republicans that was disproportionate to their share of the statewide vote.
Although we obtained mixed results in Ohio, the anti-gerrymandering coalition still could hope to make progress on fairer maps. State high courts in Pennsylvania, North Carolina, Wisconsin, New York, and Alaska, among others, invalidated state maps because of partisan gerrymandering. And then, in Moore v. Harper (2023), the U.S. Supreme Court held that state high courts may review and invalidate redistricting plans under their own state constitutions. This effectively meant that although the U.S. Supreme Court had abandoned the field in Rucho v. Common Cause (2019), state high courts could fill the void. (I filed amicus briefs on behalf of clients in Moore and Rucho, among other cases; all views stated here are, of course, my own.)
The tentative optimism that reformers might have felt in the wake of Moore v. Harper in 2023 didn’t last. Moore came to the U.S. Supreme Court from North Carolina. After a judicial election, the North Carlina court wiped out its own decision—the one that the U.S. Supreme Court had just upheld—and thereby blessed a blatant partisan gerrymander of congressional districts. Then Donald Trump took the presidency and demanded that Republicans everywhere adopt a total-war approach to politics. And now he has asked Texas legislators to redraw congressional districts for the openly-stated purpose of partisan gerrymandering.
Many Democrats, from Governor Newsom in California to Governor Hochul in New York, have said that if that Texas redraws congressional districts for extreme partisan advantage, then they will try to do the same. “With all due respect to the good government groups,” Hochul now says, “politics is a political process.”
We can try to understand Newsom’s and Hochul’s statements with basic game theory. In a simplified two-player game, the players have only two choices: try to draw gerrymandered district boundaries or, alternatively, try to draw fair maps. If Texas tries to maximize partisan advantage, should California retaliate?
Here's a one-game utility matrix, where the color-coded number below reflects the generic “utility” or quantified benefit that the State can be expected to obtain in each of the quadrants:
As depicted in this model, if the players are uncoordinated and have only one game to play, as opposed to a series of games, then their logical choice is to gerrymander their maps. Regardless of what Texas does, California Democrats obtain a better outcome (more seats in Congress overall) by gerrymandering, and vice versa. On the other hand, if they can cooperate and coordinate their choices, then they will jointly choose fair maps (4, 4), which is a better outcome for both than mutual gerrymandering (2, 2). If Texas Republicans plow ahead with Trump’s proposed gerrymander, however, then cooperation is off the table for the 2026 cycle, leaving California with little choice in this simplified model. In this world, Newsom’s and Hochul’s threats are best viewed as their efforts to deter Texas from going forward with mid-decade redistricting.
The problem with Trump and Texas Republicans is that they evidently place little or no value on fair maps in the first place, believe that their voters feel the same way, and perhaps most troubling of all, may believe that they can lock in gains permanently so that the game ceases to matter. In this situation, there is no penalty for departing from mutual cooperation and the long-run equilibrium is mutual gerrymandering, i.e., political warfare. Unfortunately, Trump and Texas are working hard to bring about this result.
Texas Republicans’ announcement that they will redistrict mid-cycle for the stated purpose of partisan gerrymandering is an open abandonment of any pretense that they care about governing in a manner that fairly reflects the whole population of Texas. They say they are going to pursue power by any means available, and can only be deterred by power. That is their message, and it is a breach of trust. In a democracy, the side that loses an election trusts that the winning side will allow free and fair elections after a period of time. Texas is saying, “that era is over.”
Should California and New York respond in kind with their own partisan gerrymandering schemes? Must we fight fire with fire, or are there other options? I don’t know what the other options are, but I would be very reluctant to pursue partisan gerrymandering as a matter of retaliation.
First, there is the obvious point that two wrongs don’t make a right. Doing something that you know is wrong rarely works out well. To paraphrase the aphorism, fighting gerrymandering with gerrymandering is like wrestling with a pig. You just get dirty and the pig likes it.
Second, the proposed Texas gerrymander is not guaranteed to succeed, as I wrote about in my last post. This may be wishful thinking, but significant swings do not seem out of the question in the Trump era. To be clear, voters should not be required to deliver a “wave election” to overcome unfair maps, but the possibility does exist.
Third, the proposed California gerrymander is not guaranteed to succeed either. Newsom could expend political capital on this issue, only to see the initiative fail. In that case, he will have lost his moral authority on the issue, wasted resources, and accomplished nothing. The process of drawing fair election districts is complicated, which is why the U.S. Supreme Court refuses to intervene in Rucho. California voters may not understand or care about a technical proposal to retaliate against another State by redrawing district lines.
Ultimately, a cycle of political retaliation could lead to more and more retaliation and further degradation of norms. The logic of stopping a greater evil does not have a clear end point and justifies too much. So, if I were the governor of California, I would find a way to drop the gerrymandering initiative and transfer all of that effort to winning competitive districts around the country.
I’m interested in hearing why this analysis might be right or wrong. Or even better, what are the realistic alternative options if Texas goes forward with its proposed mid-decade partisan gerrymandering scheme?