Gerrymandering California is not the answer
Democrats thinking about retaliating against Texas should think again
In a post published on August 15, I argued that gerrymandering California is not the answer to Texas’s mid-decade gerrymandering scheme. I circulated it on LinkedIn and talked to people about the issue. This revised version (last updated September 2, 2025) responds to the concerns and points that I heard from many thoughtful people. Thanks to everyone who responded and discussed.
Let’s start with a key point of agreement. Gerrymandering is bad. It treats voters unequally. It breeds contempt and distrust of our political system. It is highly polarizing. 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?
Maybe so. Today, those who contend that gerrymandering is bad also propose to do it. As a response to a Texas gerrymander, the California legislature passed a ballot initiative to amend the California Constitution to authorize the use of gerrymandered congressional districts for elections in 2026, 2028, and 2030. Californians will vote on Proposition 50 in a special election on November 4, 2025.
My prior arguments and the responses
I previously argued that Californians should be reluctant to pursue gerrymandering as a matter of retaliation because gerrymandering is wrong; the Texas gerrymander may turn out to be a dummymander in Democrats’ favor; the California ballot initiative may fail and thus turn out to be a waste of resources that could have supported Democratic candidates; and ultimately, the logic of the greater evil justifying the lesser evil has no logical stopping point. I felt strongly about this issue based on years of participating in anti-gerrymandering litigation.1
Some who responded found this all to be naïve and mistaken. Their argument was that Democrats must do whatever it takes to win; they cannot unilaterally disarm; and if Democrats don’t fight with fire by matching gerrymandering with gerrymandering, then democracy will die and there will be no more elections.
Unpacking assumptions
Certainly, if one assumes (1) that Democrats cannot win the House without gerrymandering California for 2026 and (2) democracy will die unless Democrats win the House in 2026, then yes, you would be crazy to oppose Proposition 50. The question is whether the assumptions are sound. I tend to agree that Trump is consolidating as much authoritarian control as possible. The question I have is whether gerrymandering is really the best strategy for stopping him.
Partisan gerrymandering is, by definition, a purely partisan act, not in the public interest, unless one believes that purely partisan acts are in the public interest. Democrats and Republicans and highly-engaged voters might well believe what’s good for the party is good for America, but I suspect that independent and low-engagement voters find this idea repellent. The latter are more likely to think purely partisan acts are not good for America. If that is right, then the cost of partisan gerrymandering in California is turning off and discouraging otherwise sympathetic voters. This is yet another version of the question whether it is better to energize the base or appeal to the center.
Of course, Donald Trump is an extreme partisan who makes no effort to be moderate or reasonable on any issue, and yet was still elected. So, it is not the case that a political party or politician must be moderate or reasonable to win. On the other hand, Trump and Republicans scraped by in 2024 with an extremely narrow win for the Presidency and the House. And their approval levels are low. Democrats could fight extreme partisanship with extreme partisanship, but the result would ever-increasing polarization. I assume that continued and increasing polarization tends to sort the electorate into closely-divided halves and prevents the formation of broad majority. I also assume that we need a broad majority to stop Trump at this point. Under my assumptions, gerrymandering actively undermines, rather that helps, the effort to stop authoritarianism.
My assumptions could be wrong. But here’s something to recall: Trump wants the States to be hyperpolarized and gerrymandered. A hopelessly polarized Congress is ineffective and less powerful than a united Congress. It is not surprising, then, that Trump would instigate a fight that will polarize Congress even further. Nor is it surprising that Democrats would respond, but they are admittedly playing his game. Whether they can win at his game remains to be seen.
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 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.)