As Republicans have embraced anti-democratic measures, Democrats have warmed to the possibility of playing ‘constitutional hardball’ themselves. Having likely lost control of the U.S. House in 2012 due to Republican gerrymandering, some Democrats are trying to fight fire with fire a decade later.
In Illinois, Maryland, and New York Democratic legislators drew electoral maps in 2021 following the decennial census. These gerrymanders aimed to level the national playing field, made decidedly uneven by Republican malappointment in Texas, Ohio, Florida, and other states.
The Democratic strategy, however, did not pan out. While courts in red states green-lit Republican gerrymanders, judges in Maryland and New York struck down Democrats’ redistricting proposals. In New York, the legislature’s proposed congressional maps were wholly rejected and an independent special master–Jonathan Cervas of Carnegie Mellon University– was judicially appointed to re-draw them.
Had it been adopted, the Democratic plan might have ensured 85 percent of New York’s congressional seats to the party, despite President Joe Biden winning 61 percent of the voters in 2020. Cervas’s maps, however, have created a more competitive landscape– with fewer safe Democratic seats and more opportunities for Republicans, including those who have backed the ‘Big Lie.’
There is little doubt that the Cervas plan benefited Republicans, when compared to the prior map, earning him ire from prominent Democrats. To better understand Cervas’s thinking and the national redistricting landscape, we spoke by phone earlier this month.
The conversation below has been edited for clarity and concision.
ZS: Representative Hakeem Jeffries, the chair of the House Democratic Caucus, who represents a majority Black district in Brooklyn and Queens, accused you of doing a “terrible job” as special master in New York. He argued that your maps “did great violence to Black and Latino communities,” and made “Jim Crow blush.” What’s your response?
JC: I think that the best defense of the map will come in the results of the elections in the fall and throughout the decade. After I proposed a map on May 16, the court had given the public time to object or to offer comments. During that time, those comments by Representative Jeffries were made. We received approximately 3000 regarding possible improvements to the map.
We took every one of those comments into consideration. We made changes where they seemed appropriate. Those changes should have alleviated all of Representative Jeffries’s concerns.
[Even after the revisions, Jefferies continued to lambast the map, charging Cervas, an “unelected, out-of-town special master” with “a constitutional travesty.”]
But ultimately, I reject the idea that we have done harm to minority communities. The final plan that the court approved has more majority-minority districts than the unconstitutional one that Democrats had passed in the legislature. So, I find it disingenuous to say that we’ve done harm to minority communities.
[Cervas’s plan created 10 majority-minority seats in New York, while the original plan proposed by New York Democrats had nine.]
ZS: Many New Yorkers are dismayed that the city’s House delegation may be without a Jewish member for the first time in generations if Representative Jerry Nadler can’t prevail in his scorpions-in-a-bottle fight with Representative Carolyn Maloney now that they’ve been thrown into the same district. Some said you “unnecessarily detonated the most Jewish district in America.”
JC: Look, the Census doesn’t provide data on religion, so I have no way to even verify that claim. What I will say is that District 10 and District 12 are both still heavily Jewish. It’s just that there are different communities put together.
ZS: Republicans aggressively gerrymandered in states like Florida and Texas. The Democratic gerrymander in New York, before you undid it, aimed, in part, to help Democrats even out the national landscape. Democrats losing their ability to gerrymander, while Republicans persist in drawing unfair maps have led some to complain that Democrats are victims of “unilateral disarmament.” What would you say to Democrats who are frustrated by the process, who think the only way forward for Democrats in redistricting is to gerrymander themselves?
I am not in a position to call the legislative proposed map in New York a partisan gerrymander. That was the court’s ruling. But leaving that aside, I am sympathetic to the unilateral disarmament argument.
And as a person who identifies as pro-democracy, I am extremely frustrated that some courts have been unwilling to uphold the law, as written in state constitutions, in federal law including the Voting Rights Act, and even the U.S. constitution as previously interpreted by the U.S. Supreme Court.
One thing I guess I would say about New York, is that being pro-democracy means being pro-democracy. There’s a slippery slope when you start trying to fight fire with fire.
I think that this decade, we have seen improvement in maps nationally. A number of states enacted new rules that create independent commissions, or better criteria for redistricting. We have also seen state courts step in to ensure the enactment of maps that are more non-dilutive. But state-level interventions like commissions, criteria, and courts are no substitute for federal intervention.
For instance, Florida has very good laws to prohibit partisan gerrymandering, but their state courts are unwilling to police those. Ohio has sufficient laws and has a court that has consistently this decade policed egregious behavior but has no ability to actually enforce the law. Then you have Alabama and Louisiana, which federal courts have ruled violate the Voting Rights Act. But they are on a course to be allowed to use maps that are actually unconstitutional in upcoming elections.
And we haven’t even gotten to the states that just don’t even have good laws at all like Texas. It has enacted a clear, partisan gerrymander, potentially a racial gerrymander, and has resulted in an enormous advantage for Republican candidates. I’m frustrated as somebody who’s pro-democracy — perhaps as frustrated as Democrats.
ZS: Let’s follow up on that. Despite lobbying by President Biden and Democratic leaders, their electoral reform bill— the John R. Lewis Voting Rights Advancement Act— failed in the Senate. Among its proposals were limits on partisan gerrymandering. How should proponents of federal standards in redistricting, like yourself, proceed in the coming years? What’s the next step for redistricting reform advocates if not congressional action?
Well, we don’t know the path forward. Things may get worse before they get better. There are a number of cases that are making their way to the U.S. Supreme Court that would undermine state courts and their ability to police gerrymanders that could potentially result in having additional biased maps. The status of the Voting Rights Act itself is unclear and is clearly under threat by the U.S. Supreme Court.
And even some of the reforms that had been passed this decade, that in principle would have reined in some bad behavior, have a sort of mixed track record; commissions in Michigan worked really well, and resulted in non-dilutive maps. But commissions in other states, like Ohio and Virginia, have a different track record. Ohio ended up with a bad result, despite the commission. So, it’s not clear to me that the path forward is through more commissions.
That being said, we are in a better place in 2022, in terms of gerrymandering, than we were in 2012. And I think that that victory, albeit not as great as one might hope, is one that we should try to build upon.
The path forward almost certainly ought to be through congressional action with new standards at the federal level. How do we get there? Well, now we’re talking about a political question, by which I am not really an expert.
ZS: You just said that the situation is better in 2022 than a decade ago. Can you give me your analysis of the national redistricting landscape? Are Democrats in a better position than they were in the last redistricting cycle?
JC: 100 percent.
ZS: Tell me more.
First of all, Pennsylvania and North Carolina are the quintessential examples of where Democrats were clearly harmed by the maps in 2012, and are no longer disadvantaged by those maps due to Court intervention. So, if only in those two states alone, you see improvement for the Democrats.
State courts and commissions have done a better job of creating more neutral maps this decade. And there are more places in which those exist than in the previous decade, like Colorado and Virginia. This is mostly a function of the fact that there are fewer trifecta governments today.
That being said, it’s clearly still a large advantage for Republicans in 2022, but they had a bigger advantage in 2012. The work of reformers has resulted in fairer maps this decade, more neutral maps. But it did not go all the way towards eliminating egregious behavior. Politicians are still selecting their voters, and are still doing so in ways that are both egregious to racial minorities and to partisan, sometimes even, majorities.
ZS: You’ve described your politics as “pro-democracy.” Do you see a tension between your drawing districts in a fair manner, which created opportunities and cemented districts for candidates that have propagated the ‘Big Lie’ or have supported other anti-democratic efforts, such as voter suppression?
JC: I see myself as neutral in the redistricting process. I don’t get to have opinions on who gets elected. And I don’t make decisions in order to advantage particular candidates. I think that voters deserve to make their own choices. And I believe that the maps should allow voters to make their own choices
I personally will not vote for anti-democratic candidates. But that’s my personal politics. Our institutions and our courts need to ensure our democratic future.
Editor’s note: In addition to his appointment at Carnegie Mellon, Cervas also serves as a research associate at the Princeton Gerrymandering Project, where, in the past, Sippy was an undergraduate research assistant.