When Thomas Hofeller travelled across the country at the beginning of the decade to talk to lawmakers about the redistricting process, he brought a warning: “Don’t get cute.”
Republicans were fresh off a remarkably successful effort to take control of state legislatures so they could control the redistricting process ― a significant victory, because redistricting is normally only done every 10 years. Hofeller, a veteran Republican redistricting consultant and mapmaker, cautioned lawmakers against drawing “stupid irregularities” in boundaries obviously contorted to include voters likely to support them, The Atlantic reported.
But in 2011, Republicans were focused on maximizing every possible advantage they could squeeze out of the redistricting project, and saw an opportunity to entrench their control of at least 20 seats in the U.S. House. They took it.
Republicans have since enjoyed considerable advantage from those maps. According to an estimate by the Brennan Center for Justice, Republican gerrymandering accounts for 16 or 17 GOP seats in the current Congress that the party may not otherwise control.
But now, that gerrymandering greed of Republicans is coming back to haunt them.
The Pennsylvania Supreme Court in January struck down the congressional map state Republicans drew, saying it was so partisan that it violated the state constitution. That same month, a panel of three federal judges struck down North Carolina’s congressional map. In October, the U.S. Supreme Court heard argument in a Wisconsin case may set a standard for defining unconstitutional gerrymandering on partisan grounds. (The court also will consider a case challenging a Democratic gerrymander in Maryland at the end of March.)
As these legal contests settle out, it’s worth looking back on how the GOP got here.
The reckoning Republicans are seeing now is one that could have been avoided, lawyers and redistricting experts say, had the GOP not been so ruthless.
Both Democrats and Republicans have gerrymandered in the past to their advantage, but Republicans took it to a new level in 2011. In an amicus brief to the Pennsylvania Supreme Court, political science professors Keith Gaddie and Bernard Grofman wrote that there was as much as three times more partisan bias in congressional maps this decade than in ones drawn in 2000. Nicholas Stephanopoulos, a law professor at the University of Chicago helping challenge a Wisconsin map, said a “dramatic number” of the worst gerrymanders of the last half-century have occurred since 2010.
Until the courts began stepping in, Republican gerrymandering paid off. From 2012 to 2016, the GOP won 13 of Pennsylvania’s 18 congressional seats, even though the party’s candidates only got around half of the vote. In Ohio, the party consistently won 12 of 16 congressional seats, but 50 percent of the statewide vote. In Wisconsin, they won at least 60 of 99 state assembly seats, with about half of the popular vote.
As a lawyer, Stephanopoulos said the clear egregiousness of the Republican redistricting made it easier to show something was amiss. It would have been harder to make a case, he said, if Republicans had only been winning slim majorities.
“In Wisconsin, if Republicans had been winning a narrow majority of the statehouse with roughly a tied election, Democrats would have been upset by that, but it probably wouldn’t have risen to a major constitutional challenge,” Stephanopoulos said.
Republican mapmakers in 2011 may have been emboldened by a 2004 U.S. Supreme Court case in which justices declined to strike down Pennsylvania’s congressional plan on partisan grounds.
Republicans could have been cautious. They could have drawn maps that benefitted their party, but at the same time were fairer, compact and contiguous, said Jeffrey Wice, a Washington lawyer who has worked with Democrats on redistricting issues. The Constitution gives state lawmakers the broad responsibility of drawing electoral districts, and the GOP maps would have stood up better against judicial scrutiny had lawmakers offered public justification in their legislatures for the boundaries, Wice added.
“You can draw a plan to benefit a party, but do so in a fair way through a more transparent, objective process that follows criteria,” Wice said. “If politicians weren’t as greedy and secretive, then we wouldn’t be seeing as many challenges to plans for the egregious overreaching in the last round.”
In many cases, Republicans didn’t offer a defensible justification. In North Carolina, a Republican said his party’s lawmakers drew a map that gave Republicans a 10-3 advantage because he didn’t see a way to draw one that was 11-2. In Wisconsin, GOP lawmakers sought to avoid scrutiny by hiring a law firm to draw the maps, hoping the work would be hidden by attorney-client privilege.
Without a public explanation for the redrawn boundaries, it’s easier for those challenging the maps to claim Republicans intended to dilute Democratic votes.
Michael Li, redistricting counsel at the Brennan Center, pointed to the GOP-drawn congressional map in Pennsylvania as a good example of a brazen Republican attempt to maximize control. The districts were clearly contorted into odd-looking shapes, and there was no attempt to explain why ― other than partisan advantage.
“The 2011 map in Pennsylvania resulted in such contorted districts, it was hard to explain away as product of neutral decisions, such as about keeping towns or counties together. It just was so nakedly partisan,” Li said in an email. ”That’s not to say a map that was less contorted couldn’t have been challenged if it also produced durable bias in favor of a party. But at least there would be a colorable defense that a court would have to take seriously.”
Such strong evidence also could make it more palatable for courts to wade into political redistricting ― a topic the judiciary had long avoided.
“The courts are going to police outlier cases, rather than trying to wade into each and every one,” said Justin Levitt, a professor at Loyola Law School in Los Angeles. “The same principle’s true in any kind of discrimination: The more blatant, the easier it is to establish, and the more likely the courts are to call it out.”
Even if the Supreme Court does decide Republicans went too far with gerrymandering, its anticipated ruling in the spring would likely come too late to affect this year’s congressional elections, and wouldn’t have an impact on maps until at least 2020. Even if Republicans lose the ability to gerrymander in the future, their ruthlessness will have helped them for nearly an entire decade.
Ed Gillespie, the former Republican National Committee chair who oversaw the party’s effort to target state legislatures, envisioned that kind of success. In 2011 talking points, obtained by journalist David Daley, Gillespie thanked donors who had given to the party’s effort to make gains in state legislatures. He said Republicans hadn’t waste a “drop” of their money on state races, and had made “maximum impact.”