Analysis: What is gerrymandering? Why is it legal?

CNN

3 days ago

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Halfway between the 2020 and 2030 census is not the normal time to be talking about redistricting, or gerrymandering, but the issue has nonetheless taken over the political conversation.
Perhaps sensing some political weakness and fearing the loss of their House majority, Republicans are looking for more congressional seats. But rather than just trying to win them at the ballot box, they're primed to conjure additional seats by redrawing congressional maps in Texas.
Democrats, tired of being outplayed, have threatened to redraw maps in states they control, such as New York and California, although it's more difficult to accomplish in states that, heretofore, have tried to make the process less political.
Enabled by conservatives on the Supreme Court, whose decisions have chipped away at the Voting Rights Act and given a green light to partisan gerrymandering, the Texas effort could set off a full-on redistricting war in the years to come.
So it's worth taking a step back to look at redistricting, gerrymandering and why things work the way they do.
The Constitution lays out the general order of how members of Congress are divided among the states.
The basic outline is this: There is a national census every 10 years to establish the number of residents in each state. House districts are then apportioned to the states based on each state's population.
As states grow, they can gain seats. But if their population shrinks compared with those of other states, they can lose seats.
But the Constitution leaves it to states to determine who, exactly, those members of Congress will represent. In states with more than one US representative, the process of drawing congressional maps is known as redistricting. Some states give that power to their legislatures. Others have assigned the task of redistricting to nonpartisan or bipartisan commissions.
The Constitution says that 'the whole number of free persons' should be counted. The original version excluded 'Indians not taxed' and counted only 'three fifths of all other Persons.' That ugly acknowledgment of slavery is one of the few mentions of the country's original sin in the Constitution. The 14th Amendment, enacted after the Civil War, removed the three-fifths clause and declared everyone born in the US to be a citizen.
Now, notably, Trump wants to end birthright citizenship as one way to address undocumented immigration. Republicans also want to exclude undocumented people from the census, something Trump tried and failed to accomplish in 2020.
It's the drawing of political maps for partisan gain. Republicans and Democrats both do it, but Republicans have more openly embraced the process. In practice, it's the equivalent of politicians picking their voters instead of the other way around, which is an inversion of the democratic process. North Carolina, for instance, leans ever-so-slightly toward Republicans in presidential elections, but thanks to gerrymandering, 10 of its 14 congressional seats are held by Republicans. Democrats have done the same in multiple states they control.
Elbridge Gerry was a signer of the Declaration of Independence, but later, as governor of Massachusetts, he signed on to the drawing of a serpentine, salamander-like state Senate district. He is depicted in CGI in a recently published video on the White House Youtube's page frustrated that his name has been mispronounced ever since. His name should sound like Gary, Indiana. But in terms of redistricting, it's generally pronounced with a soft 'G,' like Jerry.
It can look like inkblot art. Cities can be creatively carved up to spread like-minded voters to other districts. They can also be strung together to push like-minded voters together. In the current Texas map, for instance, Democratic voters from Austin and San Antonio are both placed in one district, connected by a sliver of land. In the newly proposed map, those Democratic voters would be spread to other districts. It depends on what legislators drawing the map are trying to accomplish. In Texas, they now want to add Republican seats.
Quite simply, the White House asked it to. The president's party usually loses at least some seats during midterm elections and, in an effort to blunt an expected turn against the him in the next election, President Donald Trump asked Texas to redraw its maps. Texas Gov. Greg Abbott complied by adding an agenda item about redistricting to a planned special session of the legislature.
Trump's Department of Justice is also providing some cover by arguing that some of the state's districts, which were drawn to comply with the Voting Rights Act, actually violate the US Constitution.
Probably not, but they'll try. A group of state Democratic legislators have left the state in order to bring all business in the Texas legislature's special session to a halt. They've tried this tactic before, including the last time Texas Republicans did a mid-decade gerrymander in 2003. Abbott has issued civil arrest warrants and threatened to remove fleeing Democrats from office. The question will be how long the Democrats remain out of state, seeking refuge in blue states like Illinois and New York. The current special session lasts for two more weeks. But Abbott can always call another one.
States are largely in charge of the process of drawing maps for the districts they are apportioned. It's unusual, but not unprecedented, to redraw those maps in the middle of the decade. Texas did it previously, in 2003. Mid-decade redistricting is prohibited by state law in some places, but not in Texas.
Sure is, at least under federal law. The conservative majority on the Supreme Court so took away federal courts' power to review politically gerrymandered districts in a 2019 case.
'Federal judges have no license to reallocate political power between the two major political parties,' Chief Justice John Roberts wrote at the time, drawing the criticism of liberals on the court.
Yes. Under the Voting Rights Act of 1965, there are restrictions on how state lines can be drawn to minimize the voting power of minorities. The Supreme Court is set to hear a case this year over maps in Louisiana that could further gut the Voting Rights Act protections.
Districts are also supposed to have relatively equal representation, but that does not always work out. Delaware had more than 990,000 residents for its sole congressional district after the 2020 apportionment, but Rhode Island had about 549,000 each for its two. There are winners and losers in the apportionment process.
Where they can, they do. In Illinois, former Vice President Kamala Harris got 54% of the vote in 2024, but Democrats, thanks to gerrymandering, won 14 of 17 congressional seats. But Democrats have handed away their power to gerrymander in states like California, where a nonpartisan commission draws congressional maps. In red states with such commissions, they have frequently been overturned by state lawmakers, such as in Utah, where a Democratic seat focused on Salt Lake City was carved up among Republican seats.
Texas Republicans originally drew maps to protect incumbents. States like California, which have commission-drawn maps, frequently have more competitive seats. Democrats won most of them in 2024 in California. Republicans are now eyeing five more seats in Texas based on Trump's strength in the state in 2024. They're assuming, for instance, that Latino voters who swung toward Republicans in 2024 will continue to support Republicans. If the country turns against Trump, it could, in theory, backfire.
It's a much tougher lift. While governors in New York and California have promised to 'fight fire with fire,' their hands are tied by their own state laws.
In New York, it would take a multi-year process to amend the state Constitution.
It would be more possible in California, but it would still require a special election this November to essentially ask voters to undo the nonpartisan process they created in 2008.
If the Texas maneuver snowballs into efforts to redraw maps in multiple states, Republicans would come out with more advantage, especially in the short term, according to CNN's Arit John and Manu Raju. They write:
GOP lawmakers in states such as Missouri and Florida have also expressed openness to new maps. Ohio, where lawmakers must redraw their maps under state redistricting laws, could also yield additional seats.
Republicans hold government majorities in 23 states compared to Democrats' 15.
The expectation should be that support for Trump and Republicans will soften in the coming election. That's not a value judgment on their leadership, but a historical reality. Every president's party going back to George W. Bush has lost the House in a midterm election. That includes Joe Biden's Democrats in 2022, Trump's Republicans in 2018, Barack Obama's Democrats in 2010, George W. Bush's Republicans in 2006 and Bill Clinton's Democrats in 1994.
The redrawing of maps could blunt the effects of such a turn, but Democrats only need to win three more seats to flip the House. If there's a wave against Republicans, no amount of gerrymandering is likely to save that GOP majority.