State legislative elections are easily overlooked, but they can carry enormous consequences for policy and politics, even on the national level. Democrats were reminded of this truth the hard way in 2010, when Republicans took control of state governments across the country amid the Tea Party wave. That put the GOP in prime position to redraw federal and state legislative districts after the 2010 census—Republicans had a stronger hand in this process than at any point since the Great Depression.
Ever since then, Democrats have been grumbling—not without reason—about the pro-GOP district lines, or “gerrymanders,” Republicans put in place. Not in every state, obviously: Some states, like Arizona and California, have lines drawn by nonpartisan commissions while others, like Maryland and Illinois, have Democratic gerrymanders. But Republicans crafted some very strong district configurations in places like North Carolina, Ohio, and Pennsylvania, while Democrats could only sit and stew—and, eventually, sue. Since the left saw its political power stripped in 2011, it has asked the courts to depoliticize the process altogether. The Supreme Court is currently considering suits over district lines in Maryland and Wisconsin. There is a good chance that Justice Anthony Kennedy, the Court’s swing vote, will discover a previously unnoticed constitutional mandate against a practice that dates back to the First Congress.
Democrats have also sought relief from state courts, and last month the Pennsylvania supreme court gave them a major victory, invalidating the gerrymander the state legislature drafted, and Republican former governor Tom Corbett approved, back in 2011. The Pennsylvania court, unlike many in the nation, is popularly elected, with justices running as avowed partisans. Democrats control a majority, which decided that the Republican gerrymander violated the state constitution. Never mind that the court had never noticed such a rule before; the Democratic majority insisted that the Republican-dominated legislature work with Governor Tom Wolf, a Democrat, to come up with a new map whose boundaries did not cross so many county and municipal lines.
To be fair, the court articulated a sensible standard when it struck down the GOP map. It is hard to defend gerrymanders that slice and dice existing political communities on any grounds other than naked partisanship. However, the United States Constitution clearly gives the right to state legislatures, not state courts, to determine the time, manner, and location of federal elections. Of course, modern courts have rarely been bashful about giving themselves maximum leeway in the constitutional schema, so it is unlikely that the Supreme Court will invalidate the Pennsylvania court’s maneuver, the plain text of our founding charter notwithstanding.
Republicans might have shrugged their shoulders and agreed to play more fairly next time—except that fair play is not what the court was really interested in. It gave the state legislature little more than a month to work out a compromise with Governor Wolf. That, naturally, was never going to happen, which seems to have been precisely the point—for it would give the court legal cover to impose its own map on the state.
Nonpartisan experts expected that the new map would favor Democrats. It would have to, considering how aggressively the Republicans gerrymandered the state back in 2011. But what the court actually did took everybody by surprise. While generally hewing to its own standard, the court nevertheless made judgment call after judgment call that favored Democrats over Republicans. And in a few cases, it broke its standard to help Democrats—as with the redrawn 7th Congressional District that mashes parts of Chester, Delaware, and Montgomery counties into a single district.
The result is a new congressional map that is more favorable to Democrats than those proposed by Wolf and Lieutenant Governor Mike Stack. And while it is not as tortuous as the original GOP map, a careful study of the new map easily reveals how voters were systematically rearranged in precise ways to help Democrats.
It remains to be seen just what effect this tinkering will have in November. The trouble with gerrymanders like the map Republicans put together in 2011 is that they tend not to withstand electoral waves, like the one that seems to be brewing for Democrats in the 2018 cycle. Organizing voters just so can easily backfire when a critical mass of them decide to bolt your party. The same works in the other direction: A Republican wave would probably overwhelm the new pro-Democratic map. But one can appreciate the work the Democrats on the court did by looking at a middling outcome. Sean Trende, senior elections analyst for Real Clear Politics, estimates that in a neutral year, i.e., one in which the two sides were evenly matched nationwide, the new map would net the Democrats three seats they otherwise would not get under the 2011 map.
All told, this was a bold power play by the court’s Democrats and a deeply disingenuous one at that. The argument the court made was that Pennsylvania is an evenly divided state and one party should not get to dominate the congressional delegation. That has merits, even though the state was certainly not evenly split in 2011, when new lines were to have been drawn. But if we accept the court’s reasoning, what then justifies the narrow, Democratic majority hijacking the process? The Democrats, for the supposed sake of partisan equity, basically shut out the strongly Republican legislature and put together a map that is manifestly more pro-Democratic than what any bipartisan compromise would have generated!
Sure, politics ain’t beanbag, as Mr. Dooley would no doubt be quick to remind us. Democrats on the state supreme court had their shot to undo the 2010 midterm, and they took it. Republicans have surely given as good as they’ve gotten over the years—in Pennsylvania especially. But the court’s audacity reveals the truth about many of the arguments we have heard from Democrats since the 2011 redistricting: Despite protestations to the contrary, hardly anybody really cares about a fair process. These seemingly principled claims that gerrymandering undermines democracy are really just cover to agitate to redraw lines more beneficial to Democrats.
If the political fortunes continue to blow in favor of the Democrats, and they do well in state legislative battles in 2020, it is an easy bet that they will suddenly become less insistent that the courts put up guardrails on gerrymandering. Despite what they say, it is all about politics
Jay Cost is a contributing editor to THE WEEKLY STANDARD.
