America’s Gerrymandering Crisis: Time for a Constructive Redistricting Framework

Thanks to the actions of Texas Republicans, America has been plunged into a tit-for-tat redistricting faceoff that is oddly occurring in the midcycle period as politicians angle for advantage ahead of next year's midterms. First, Texas Republicans at the urging of President Donald Trump himself have proceeded to redraw their state's electoral map in a clear maneuver to grab an additional five congressional seats come November 2026. In response, and in a bid to also grab five additional seats for their side, California Democrats have finalized arrangements to launch their own effort in November via a ballot initiative to counteract the move in Texas.

The broader political context of these moves is quite noteworthy: the Republican majority in the House being razor thin and the midterm elections being traditionally unfavorable affairs for the party in power, the Republicans' action amounts to a preemptive move to retain control of Congress and thereby shield the Trump administration from an anticipated Democrat pushback against Trump's increasingly controversial agenda which has literally convulsed American politics. Given this scenario, the countermeasures undertaken by the Democrats was not only foreseeable but rather inevitable. For them to do otherwise would have amounted to what some groups like Common Cause have termed "unilateral political disarmament in the face of authoritarian efforts to undermine fair representation and people-powered democracy." (This invokes the proverbial scenario of "bringing a knife to a gun fight.")

Nationwide, both parties are gearing up to confront each other in what promises to be a race to the bottom redistricting contest. These midcycle maneuvers, initiated by the Republicans, clearly seem to defy the normal practice under which redistricting exercises are conducted every ten years in accordance with the census cycle established in Article I Section 2 of the Constitution.

In simple terms, what the two parties are doing here is known as "gerrymandering," a notorious maneuver in which electoral maps are intentionally drawn to give an advantage to one side, usually the side drawing the maps, over the other side. More specifically, what we are seeing in Texas and California, the country's two most populous states, is a species of gerrymandering behavior known as "partisan gerrymandering" (based on party); the other kind is known as "racial gerrymandering" (based on race).

As between the two, while racial gerrymandering is prohibited, as a violation of Section 2 of the landmark Voting Rights Act of 1965, partisan gerrymandering is deemed permissible, thanks to the US Supreme Court's decision in the 2019 case of Rucho v. Common Cause, which said that such situations belong to the class of non-justiciable "political questions," where federal court intervention is unsuitable because they lack the "objective" criteria to assess those situations. As we've seen in litigation post-Rucho, things can get tricky in circumstances where it may not be easy to separate the "racial" and "partisan" components of a given gerrymandered situation.

A Mutual Skullduggery

While Republicans control more state legislatures than Democrats and thus wield greater ability to engage in gerrymandering behavior, the evidence clearly suggests that both parties are guilty of the mischief of partisan gerrymandering. On the Republican side, aside from Texas, plans are reportedly underway to extend this Trump-inspired bout of gerrymandering to other Republican-controlled states like Indiana, Missouri, and Florida.

In Texas, for instance, where Kamala Harris won 42% of the vote in the 2024 presidential election, Democrats hold only 34% of the congressional seats (13 of 38 seats). In Indiana, Democrats hold two of seven seats, which is 22% despite Harris' 40% share of the 2024 vote. In Missouri: Democrats hold two of eight seats, which is 25% despite Harris' 40% share of the 2024 vote. In Mississippi: Democrats hold one of four seats, which is 25% despite Harris' 38% share of the 2024 vote.

On the Democrat side, a similar sampling of representation patterns tends to show even more pronounced partisan gerrymandering: blue states like Massachusetts, Connecticut, and New Mexico, for instance, have zero Republican members in their congressional delegations, even though Trump won 36%, 42% and 46% respectively in those states in 2024. In places like New Jersey, the Republicans hold only 3 out of their 12 congressional seats (which is 25%) despite Trump's 46% share of the votes in that state in 2024. In California, Republicans hold only 9 of the 52 congressional seats (which amounts to 17%) despite Trump's nearly 40% vote share in California in the 2024 presidential poll.

In Illinois, where many of the runaway Democrat legislators from Texas had fled to during the redistricting controversy in their home state, Republicans hold only 3 of the 17 congressional seats in that state's delegation, which is roughly 18%, despite Trump's 43% share of the vote in the 2024 presidential poll. Who could soon forget the awkward scene on August 5 when comedian Stephen Colbert of The Late Show confronted his guest JB Pritzker, Illinois' governor, with a map showing the truly bizarro shape of his state's congressional District 17, a shape the comedian described as "crazy."

Although legally permissible, the downside of partisan gerrymandering is enormous, not least because the victimized voters of the rival party are denied the genuine opportunity to elect representatives of their choice, in violation of the 14^th Amendment's equal protection guarantee. Not to mention the corrosive effect of this invidious maneuver on the citizens' faith in the overall legitimacy of the electoral system.

The Case for Redistricting Commissions

To be clear, redistricting is an inherently political exercise that cannot be rid of all partisanship. Yet, a good starting point in draining the toxic partisanship out of the exercise is to remove it from the grips of state legislatures via nationwide shift to the use of redistricting commissions, which are already in use in one form or another in more than 20 states across the country. Among the available options, the optimal structure for the redistricting commissions would be one that is geared toward greater public participation in the process and away from direct control by politicians.

For instance, elected officials and their direct associates should be excluded from the redistricting commissions, which bodies should be mandated to hold public hearings and receive public input on their proposals, both online and in-person. Plus, whatever data the redistricting commissions are relying on for their proposals must be made available for public examination. To further isolate the process from partisanship, the final redistricting proposals produced by the commissions should not be further subjected to final legislative approval, as happens in places like New York. In this scenario, anyone dissatisfied with the proposals, say, on equal protection or other constitutional grounds or even on a claim that the commission violated its own terms of reference, might then seek their remedy in court.

Given the importance of the task at hand, some federal intervention might well be needed to harmonize the redistricting process across the country and thereby enhance its credibility and legitimacy among the people. For instance, Congress could use its authority under the Elections Clause (Article I Section 4) to mandate a nationwide shift to the use of redistricting commissions everywhere, in addition to prohibiting the bitterly polarizing practice of midcycle redistricting, a situation that only betrays the motivation of politicians to 'game the system' for partisan advantage.

Whatever the imperfections of the redistricting commission approach, these bodies can be trusted more than self-interested political actors to draw maps in accordance with the public interest, so that the voters are indeed the ones choosing their leaders and not the other way around.

Conclusion

What is happening in Texas and California, and perhaps soon to come in other places, is less an exercise in representative self-governance in a democratic republic than a corruption thereof, a situation made worse by the extremely polarized nature of current American politics. Thus, there is no better time than now for a nationwide shift to the use of redistricting commissions and a prohibition on midcycle redistricting to streamline the exercise and enhance its credibility with the voters.

Carl Unegbu, a lawyer and journalist, serves as a vice chair of the New York Chapter of the American Constitution Society. He can be reached at [email protected].

Democracy and Elections, Democracy and Voting, Redistricting