We Don't Know What a Democracy Is, but We Know What it Isn't -- and This Is Not a Democracy

by Neil H. Buchanan
American democracy continues to blunder forward, with even the most informed people imagining that although things are scary, somehow everything is as it has always been.  In my most recent Dorf on Law column, I commented on some shockingly blase comments by David Leonhardt, who is a New York Times columnist and a former Washington bureau chief at that important newspaper.
Leonhardt managed not only to bothsides the idea of gerrymandering but also to dismiss the extent of Republicans' redistricting successes, barely suppressing a yawn while concluding that "the current House map slightly favors Republicans, likely by a few seats."  So sure, he insinuated, maybe Republicans are doing the whole gerrymandering thing a bit more aggressively than Democrats are, but the extent of their success is "slight," only amounting to "a few seats."  Time to move on to other, more sexy, topics.  Right?

In last Thursday's column, I lambasted Leonhardt heartily, but not enough.  His comments make clear that gerrymandering has become one of those existential problems -- perhaps only rivaled by the influence of moneyed interests in elections -- that many non-Republicans are now evidently too bored to care about.  This is a tragedy, because no matter what else one might think about America's political problems, there are few greater threats to the notion of representative democracy than allowing politicians to lock themselves into power.
Even so, the gerrymandering problem is in fact a truly interesting question -- contrary to the farcical reasons that people like Leonhardt use to suggest that it is unimportant -- because the entire concept of drawing representative districts forces us to confront almost unanswerable questions.  While there are no right answers, however, we can be sure that what Republicans are offering are nothing but wrong answers.

But before I continue with my discussion from last Thursday, I cannot resist offering a comment relevant to my column from two days before.  There, I criticized the bipartisan pile-on that followed President Biden's recent comment that "the pandemic is over."  I noted there that Biden is in fact correct: pandemics are not "over" only when people stop dying, because there are unfortunately plenty of things that continue to kill people in large numbers that are not (and in some cases never were) pandemics.

Typically, John Oliver does not fall for the cheap and easy reaction, but to my dismay, his show two days ago began with this baseless comment: "It has been a busy week, and a lot has happened: ...  Joe Biden declared the pandemic over, which isn't just irresponsible, it's complete bullshit!  You can't just declare something and make it a reality.  If I declared, 'The queen is alive,' that doesn't make it true."  What I find especially depressing about this is that Oliver did not even think it necessary to offer an argument.  It was simply obvious to him that Biden was wrong, so why belabor the point?

Except that Biden was right.  Oh well.  Who's counting?

Returning to the main point, however, what more is there to say about gerrymandering?  Most importantly, I think that it is essential to emphasize just how irresponsible Leonhardt's version of the story is.  By his lights, the thing that matters is that the current maps slightly favor Republicans, perhaps by only a few seats.  But we need to stop for a moment and consider just how crazy it is to frame the situation in that way.

Imagine, after all, a country in which one party would hold, say, a 30-seat majority in "the people's house," if districts had been drawn in a nonpartisan way.  One party -- let us call them Republicans -- then does everything within its power to erase that voter-determined majority and replace it with a "slight" majority of its own.  Heck, it is not as if Democrats have been legally prevented from winning elections, right?  They just need to convince some rural voters not to vote for Republicans this time around.  And if Democrats fail to do so, whose fault is that?

This is like saying that a much better soccer team could have won a match if only it had done everything right and scored enough goals to overcome the referees' bad calls.  Why are Democrats whining?  They were allowed on the field, and they even scored a goal.  Time to talk about whether the Democrats' best player is a secret Muslim.

The point is that it makes no sense to dismiss the results of gerrymandering by saying that there are limits to how effective it can be.  That Democrats might yet "pull the equivalent of an inside straight" in the 2022 midterms is not proof that there is nothing to worry about.  The question is whether the game is rigged, and it most definitely is.

At one point in last Thursday's column, I focused on Ohio's 9th congressional district.  I did so in part because that is where I grew up, so I pay special attention to what goes on there.  The reason it was relevant to my analysis last week, however, was that the district map that I reproduced there shows that there are no legal limits to what Republicans can do to make Democrats disappear.  I also noted that the long-term incumbent, Marcy Kaptur, is running in a very different district this year, one that continues to include the Toledo area but that now includes not the Lake Erie shoreline and some of Cleveland's western suburbs but the super-rural counties in the opposite direction.

I should also have also noted, however, that the current district lines themselves were the result of a previous gerrrymander, in which Ohio's (gerrymandered) Republican state legislative majority pitted Kaptur against another very liberal Democrat, Dennis Kucinich (who is probably familiar to some readers as a former also-ran presidential candidate).  Kaptur won a newly packed district, which Republicans were willing to create as the price of canceling Dennis the Menace.
Why, after all, would Ohio's Republican mapmakers tenuously connect Toledo with part of the Cleveland sprawl, almost one hundred miles away?  Toledo is a midsize metro area that is almost exactly as big as an average congressional district, and for years, it was represented by a New Deal Democrat named Thomas Ludlow "Lud" Ashley, who lost in an upset in Ronald Reagan's shocking 1980 win.  One term later, Kaptur took back the district for the Democrats and has held it ever since.

If one were to ask, "What would the congressional district that includes Toledo probably look like?" the answer would be neither the district that Kaptur managed to win in 2012 after it was "packed" (when Republicans pitted her against Kucinich) nor one that has been "cracked" (as it is now, with Democratic voters in the Glass City being nullified by Republicans voters elsewhere).  Toledo, for all that it has changed over the decades, is a Democratic city, but Republicans in the statehouse are doing everything they can to make that advantage magically disappear.  That Kaptur might yet win, due to the insanity of her Trump-cultist opponent, does nothing to make what is happening acceptable.

Even so, I suggested above that we do not in fact know what the Platonic ideal of "fair" congressional districts would look like.  Last week, I recalled a 2017 column in which I debunked the idea that Democrats had "sorted" themselves into densely packed cities that -- at least if one believes some silly political science claims -- simply cannot be un-gerrymandered.  That tendentious claim holds that a place like Toledo is so full of liberals that there is no way to do anything but negate hundreds of thousands of Democratic voters by packing them into safe districts, while allowing Republicans to take the rest of the country by default.  (Except, of course, now Toledo's Democrats are somehow not sorted enough?)

In that earlier column, I asked readers to imagine a US state in which there is one city situated exactly in the middle of the state.  The city's residents are all Democrats, and the non-urban residents of the state are all Republicans.  There, my hypo involved an exact 50-50 split between the two parties, but I can make my point more clearly today by supposing that the state is in fact divided 60-40 in favor of Democrats -- again, all of whom live in that one big city.
Let us say that there are 10 congressional districts.  Contrary to the "sorting" hypothesis, it would in fact be easy for to divide the state into ten slices of a pie, with each district's boundary lines radiating out from the rotunda of Capital City Hall.  The result?  The Democrats win every congressional race, 60 percent to 40 percent.  So even though two of every five citizens are Republicans, one could draw "neutral" maps with ease that result in nothing but Democratic members of Congress.

And in a way, that would make sense.  Just as the Governor and Senators in that state would be Democrats (after winning statewide races), the House caucus would also be filled with Democrats.  Even so, that somehow seems wrong.  On the other hand, if Republicans could draw the lines carefully and strategically, it would be a simple matter to create a caucus with 7 Republicans and 3 Democrats.  It is easy to play with the numbers and come up with different numbers of safe seats for each party.

This is why I am saying that there are no obviously right answers.  If the majority should rule, why does it matter whether they have a 51-49 or a 100-0 advantage?  To argue that we need to respect anything other than power politics as practiced by the party that represents more than half of the population, one needs second-order arguments regarding the importance of local representation, the possibility that voters might not be fully partisan, the opportunity for members of Congress to create cross-party coalitions on an ad hoc basis, and so on.

And those arguments can be very persuasive.  They do not, however, justify permanently disenfranchising a majority of the population, even "slightly," creating a Republican advantage of only "a few seats."  Moreover, when we consider that the current Republican Party shows every sign that it would use even a one-seat advantage in the House to create utter chaos -- to say nothing of their commitment to rejecting Democratic electors on January 6, 2025 -- we cannot take for granted that a gerrymandered Republican majority would respect even the lax standards that brought it into existence in the first place.

As I noted (again) last week, the post-2020 redistricting of Congress has seen Republicans -- even with Democrats doing what they could to fight fire with fire -- increase their already-illegitimate advantage in the House by more than enough seats to tip the majority in their favor.  That their patrons on the Supreme Court have forced states to use district maps that are illegal (even by the degraded standards that our system currently allows) merely adds insult to injury.

Yes, even in the face of all of that (and setting aside voter suppression, which I have forced myself not to discuss here), the Democrats might somehow still hold onto their majority in the House this November.  But that would not justify the anti-democratic travesty of gerrymandering that even well-meaning pundits have been willing to take as a starting point.  That the rot at the heart of our system is numbingly familiar does not make it any less rotten.