You Have Redistricting Questions. I Have Answers.
Can Democrats still win the House?
Happy Friday, everyone! Donald Trump is on his way back from China, a new Fed chair has been confirmed, and the Supreme Court is temporarily allowing the abortion pill to still be sent by mail.
If you’re curious what happened in Congress this week, I joined the team at 535 News to break it down yesterday, including an interesting bill on senators forfeiting their pay during government shutdowns and yet another discharge petition. Watch it here:
But you all know what our main dish is this morning: a mailbag issue.
In today’s mailbag, we’ll be looking at:
The odds of a federal fix to gerrymandering
How the redistricting wars will impact the race for the House
Whether Democrats can win the Senate without Michigan
How the Supreme Court went from a ruling upholding the VRA in 2023 to their ruling chipping away at it last month
The impact gerrymandering will have on the type of lawmakers headed to Washington
And more!
You all sent in great questions. I’m excited to answer them.
A redistricting fix
Here’s my question: can redistricting be addressed statutorily at the federal level, or would it take a constitutional amendment to curb all the recent shenanigans? I’m not talking about what’s realistic in the current political climate, just, like, could Congress theoretically pass a law requiring each state to use independent/nonpartisan commissions to draw its congressional districts? And if a federal law isn’t possible, could Congress use fiscal arm-twisting to tame gerrymandering, like they did when they standardized the drinking age & highway speed limits by threatening to withhold highway funds?
The Elections Clause of the Constitution allows state legislatures to dictate the “Times, Places and Manner of holding Elections for Senators and Representatives,” but allows Congress to “at any time by Law make or alter such Regulations.” As a result, Congress has long passed laws regulating redistricting.
At one point, it was common for Congress at the outset of every redistricting cycle to require congressional districts to be contiguous and compact. Those requirements have since lapsed, although 23 states have passed laws of their own requiring contiguity and 18 require compactness. Congressional districts in many states (especially after this year) are far from compact; passing a new federal statute imposing a compactness standard would be one step towards reining in the redistricting arms race.
There could also be a law prohibiting mid-decade redistricting, although neither party seems to be jumping to do so. Rep. Kevin Kiley (I-CA), whose district has been eliminated by mid-decade redistricting, has introduced a bill to prohibit the practice, and this week filed a discharge petition to force a vote on it. So far, his is the only signature. 217 to go!
There have also been many proposals over the years for Congress to require every state to set up independent redistricting commissions. Some scholars have raised constitutional objections to this, although Chief Justice John Roberts’ majority opinion in Rucho v. Common Cause (2019) does stress that “Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering,” potentially suggesting that the court would uphold such a law.
The “fiscal arm-twisting” that the questioner raises is also a clever way to get around potential legal challenges (by incentivizing states to set up independent redistricting commissions rather than requiring them), and it would be an interesting test of the degree to which various state governments prioritize their political party’s control on the national level. As we’ve learned this year, there is a real competitive disadvantage for any political party that sets up independent commissions in the states they control without a guarantee the other party will follow suit. It’s possible that it would only take a few states to deciding to swallow the loss of federal dollars to their state — in exchange for shoring up their party’s position in Washington — for other states to be forced into making the same call, if enough are more worried about their party losing ground vs. their state’s fiscal health.
In that sense, it seems like for independent redistricting commissions to work, every state would need to take the leap at once.
With the revitalization of nationwide redistricting efforts, would it perhaps be more plausible for Congress (119th or 120th) to pass a nationwide gerrymandering ban?
Now, let’s talk about what’s politically feasible, not just what might be legal. Republicans currently have complete control in Washington and so far have signaled no interest in redistricting reform. That means the earliest it could probably happen is next time Democrats have a trifecta (control of the House, Senate, and White House).
As I’ve written before, I think it’s highly likely that Democrats will eliminate the Senate filibuster in their next trifecta. That will open the floodgates of legislating on many issues, including redistricting reform. In my mind, the main question, then, is what will stick and what will not: which policies would survive Democrats losing power in Washington, and which would be quickly reversed.
If Democrats were to codify Roe, for example, it would be very difficult politically for Republicans to undo that in their next trifecta. They could likely pass something smaller, like a ban on late-term abortions, but outright undoing a bill legalizing abortion (or going even further and passing a national abortion ban) would probably be hard to get enough votes for.
A reverse Republican example would be voter ID. If a GOP trifecta in a post-filibuster world passed a voter ID bill, it would be very politically difficult for a subsequent Democratic trifecta to undo it. On the other hand, a Democratic bill to allow transgender students to play on their sports teams of their choice, or a Republican bill expanding gun rights, would probably be reversed as soon as the other party rode into town.
Basically, my projection for the filibuster-less future is that there will be one layer of policies that effectively become “off limits” and get set in stone because the other party can’t muster the political will to overturn them, and then another layer of policies that flip back and forth every time the two parties trade control.
Where would redistricting reform fall? I’m not sure. On one hand, gerrymandering is very unpopular. But on the other, most people don’t care that much. A bill undoing abortion protections, for example, would drive voters to the polls. A bill undoing gerrymandering restrictions? Probably not.
All of this to say: I’m not sure gerrymandering is a problem that can be solved long-term by a single party, since I don’t think it’s an issue that carries enough salience for most voters to prevent the other party from undoing whatever bill is passed. This is probably one where you need 60 votes and support from both parties, in order to lock in the fix and not risk the status quo flipping back and forth every four years.
So far, there are not many signs of that sort of bipartisan consensus emerging on this issue. Perhaps a few more cycles of this will change that, but I’ve been thinking a lot lately about what Zachary Donnini reminded me a few weeks ago: the longer Extreme Gerrymandering goes on, the more members of Congress there will be who owe their political careers to it (think of the California Democrats or Texas Republicans who will be headed to Washington next year only because of partisan gerrymandering). If we can’t pass a fix now, will we be able to a few years from now, when you could have 20% of Congress who would know passing such a bill would instantly mean they lose their jobs? It will only get harder and harder from here.
Predictions
Despite the impending gerrymandered district changes, the vibe in the media still suggests Democrats will take control of Congress in November. What’s your take on this?