More Government, More Gerrymandering – John O. McGinnis

Gerrymandering wars have arrived. At the President’s urging, Texas redrew its congressional lines seven years before the census window, tilting its delegation even farther to Republicans. California answered in kind, as Governor Gavin Newsom pushed a mid-decade hyper-partisan remap now headed to a statewide referendum. Legislatures in other states, both red and blue, may soon follow. The point is plain: when the prize is control of Washington, few will wait ten years to claim it.

Many deplore this latest outbreak of partisan warfare, focusing on the consequences it causes: the gap between the vote share of the parties and their seat share that gerrymandering creates. But they miss an underlying cause of today’s breakdown in political norms: higher stakes in federal elections. The mid-census map wars are, in large part, a result of those stakes.

The logic is straightforward. As Washington decides more, the cost of losing rises. When losing hurts more, parties invest more to entrench advantages. Redistricting, especially mid-cycle, becomes a rational investment, not an aberration. The more powerful the federal government becomes, the higher the premium on control of the House of Representatives. A partisan majority now moves in lockstep with party interests, serving as a check when the other party holds the presidency or the Senate and as a facilitator when it does not.

Gerrymanders have a cost: they trade electoral safety for the party’s members for their potentially higher numbers. By diffusing support to win more districts in normal times, they reduce the number of truly safe seats and magnify losses in an adverse wave election. Yet when the control of the government is a make-or-break affair and nearly all members of the House vote the party line, the greater probability of a bare majority is worth becomes worth more than the cost of being in a smaller minority.

The federal government’s power has grown in economic and social affairs for a century, with only a brief retrenchment in the Reagan era. The clearest lever is spending. It distributes largesse and, in turn, requires choosing who bears higher taxes. For much of the nation’s history, federal outlays were under five percent of GDP; today, they hover well above 21 percent.

More recently, the stakes of federal control have risen further. The government now carries the highest peacetime gross debt, which is now about 120 percent of GDP. Absent much faster growth, that means higher taxes, lower spending, or both. The Social Security Trust Fund is also projected to be depleted within a decade, triggering benefit cuts in the absence of substantial reforms such as raising taxes or the retirement age. In short, Washington will soon be forced to make essential entitlement decisions, again raising the possibility of more taxes or benefit cuts with high partisan stakes.

Psychologically, people are more worried about losing than they are about gaining added resources. Thus, they become even more anxious to wield the axe that government debt will swing in the future to avoid the benefit cuts or higher taxes falling on them. The ballooning debt and endangered entitlements create the inflection point for more intense gerrymandering.

In addition to these fiscal battles, of course, the federal government also exercises control over even more divisive domestic issues. Immigration has now become the most potent and divisive one. Because of past failures in recent enforcement, fourteen million unauthorized immigrants now live in the United States. The federal government has also become more powerful because it will have to resolve its status.

Control of the federal government also affects the resolution of other social issues—from abortion to gender-identity policy. Once, these matters were largely outside Washington’s remit; federalism served as a brake on national stakes. But Congress’s authority under the Commerce Clause is broad, and even when the body cannot regulate directly, it can often push states to do so by conditioning federal funds on their acquiescence. Growing federal spending thus also expands federal influence over social issues.

Yet another matter on the agenda of the federal political branches is control of the Supreme Court. And for the first time in almost a century, the House of Representatives is a major part of that discussion. In the past, the Court’s composition was largely a matter for the President and the Senate. Today, however, one of our political parties seriously talks about court packing and is opposed by the other party. Control of the House of Representatives is key to expanding or blocking the expansion of the Supreme Court.

Of course, gerrymandering itself is nothing new. Indeed, the very name comes from Massachusetts Governor Elbridge Gerry, who signed a redistricting bill in 1812 with state legislative districts said to be shaped like salamanders. Gerrymanders have also been applied to congressional districts as early as 1802 in Pennsylvania and South Carolina. But gerrymanders rarely redrew lines between one decennial census and the next. And it was never before the subject of a national partisan brawl.

It is also true that technology has made gerrymandering easier. Advances in data collection and analysis have allowed better prediction of the voting behavior of each citizen. Mapping software then allows districts to be drawn more finely to capture the voters that will make for the optimal size of victory. Algorithms even allow those districts to project an illusion of compactness and thus be more resistant to invalidation under state constitutional rules. But these changes are only changes in capabilities—big government supplies the incentives to use them.

Partisanship also factors into the pressures for gerrymandering. If the two parties were close in their programs, there would be less at stake in controlling the federal government. But when they are far apart, control makes a great deal of difference, particularly when one party may be willing to use its power to change the rules of the game by packing the Court or admitting new states.

A smaller federal government is the best answer to gerrymandering. Reduce Washington’s reach over money and morals, and the incentive to bend lines wanes.

Thus, the size and power of the federal government are not the only causes of gerrymandering wars, but it is a trigger for what we are seeing today. We have had intense partisanship at other times in American history, and computer-assisted redistricting for decades, but never before was gerrymandering as central and pervasive an issue nationwide. Technology supplies the scalpel. Polarization supplies the motive. But it is the government’s scope that provides the payoff.

This analysis suggests that gerrymandering wars may well intensify. Most obviously, if the federal government grows in size either through greater government spending or taxation or government regulation, the return to controlling the House will increase and with it the incentives for gerrymandering. Higher debt will make citizens even more worried about the government’s authority to deprive them of their expectations. More subtly, the demise of the filibuster, which many Democrats now openly support, could have the same effect. The effective requirement of sixty votes makes much legislation impossible to pass without minority buy-in, unless one party has sixty seats—a very unusual political scenario. As a result, a party’s control of the House cannot yield all the party’s most extreme wish list. But that would change with the abolition of the filibuster. Thus, in the absence of the filibuster, it will be worth taking even stronger measures to control the House.

The centrality of federal government power to gerrymandering also suggests that some solutions often touted to end gerrymandering may be unavailing or even counterproductive. State districting commissions seem too weak a dam. When the federal government is powerful and partisan passions are high in states with a strong partisan tilt, like California, the commission can be swept away when it matters.

Congress could itself eliminate gerrymandering by making state congressional elections not be decided by district, but by proportional representation. But, of course, that change would put the seats of many members at risk and thus has never been adopted. Even smaller reforms, like requiring compact districts, would upset current members.

In Rucho v. Common Cause, the Supreme Court has rejected a role for the federal judiciary in policing gerrymanders. However one evaluates its formal reasons, any realistic analysis suggests that this function would endanger the Court and might perversely lead to even more intense pressure for gerrymanders. If the Court becomes arbiter of congressional districts when the federal government is as powerful as it is, efforts to control the Court by any means possible will intensify. President Joe Biden and Vice President Kamala Harris endorsed statutory term limits, which would have had the effect of first eliminating three senior Republican justices. But such efforts would increase if the Court intervened in gerrymanders in a way Democrats viewed as “unfair.” And fairness in political districting is as difficult to judge for partisan outsiders as is the “compactness” of the districts at issue in a gerrymandering case.

A smaller federal government is a better answer. Reduce Washington’s reach over money and morals, and the incentive to bend lines wanes. Restore federalism’s default, narrow the use of conditional spending, and return cultural disputes to the states. Even if that increases pressure for gerrymanders of state legislatures, citizens can exit states with policies they come to dislike without leaving the nation.

Recent decisions that end judicial deference to agencies and demand clear congressional authorization for substantial new regulations show how constitutional revival can have condign political effects. They restore the responsibilities of legislatures indirectly by cabining the power of the administrative state. Similarly, gerrymandering could be reduced if only the federal legislature and judiciary would move back toward the original structure of the Constitution and cabin the responsibility and thus the size of the federal government. A constitutional amendment to balance the budget would eliminate the fears that a debt-ridden federal government must choose whom to whack. Shrink the prize of victory in the next elections, and incentives for gerrymandering will diminish.