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Coloring Inside the Lines | Insight

New York Dems have been denied their gerrymander. They’ll need to find more productive ways to push the boundaries.

The Briefing: New York rejects Democrats’ gerrymandering.

  • What Democrats did
    • In 2014, New York established an independent electoral mapping commission
    • The "independent commission" could be overridden by a legislative supermajority
    • In 2021, Democrats did just that, then submitted their own map
    • The gerrymandered maps cut Republican-leaning seats from seven to four (out of 26)
  • The court decision
    • The New York State Court of Appeals narrowly ruled the maps unconstitutional
    • The Chief Justice wrote in her opinion that this supported "a free and fair election"
    • An independently appointed official will redraw the maps
  • The controversy
    • Democrats, at a disadvantage in the House since 2012, thought they could even the national odds
    • The Republican-controlled Ohio legislature similarly overrode an independent commission
    • They, however, seem to be getting away with the maneuver

The Big Question: Is this a win for democratic health?

I’ll be candid here—I’m personally not happy that the state Supreme Court threw out the Democratic-drawn maps. (I promise this isn’t just going to be about my feelings, but this is important, as you’ll see).

My reasoning is very simple. The GOP as it exists today poses a significant threat to democracy and the rule of law in the United States. Donald Trump and his supporters attempted to throw out the results of a free and fair election in 2020. If he’d had enough members of Congress on his side, he might have gotten away with it. Given the way the Electoral College and Senate work, our democracy is already biased toward conservative states and the Republican party. My concern then is that those advantages could be employed by the party to further erode self-government in the US.

Moreover, Democrats at the national level tried to pass legislation that would establish independent commissions around the country. Republicans refused to work with them on reforms, and, as I noted above, are doing the same thing that Democrats did in New York in Ohio. Given the limited available tools to make national-level results more proportional, aggressive counter-gerrymandering seems justified, however ugly it may be.

And they are indeed ugly. I don’t mean to suggest that turnabout is entirely fair play, because the dilemma Democrats have found themselves in when it comes to redistricting is a profound one. It has deep implications for what liberal democracy is and how best to preserve it.

The move in New York was clearly a violation of the spirit of the 2014 independent commission law, even before the Court of Appeals ruled its illegality outright. Independent commissions are supposed to enhance electoral fairness, accountability, and the rule of law. The partisan gerrymander that’s been thrown out would undoubtedly have had precisely the opposite effects within New York had it been held up in court.

When we put all of this together, we’re confronted with a very difficult dilemma—should defenders of liberal democracy be willing to sacrifice (under specific conditions) some liberal norms to save the broader project? How far should they go? Or do they need to fight with a hand tied behind their backs?

The Theory: Lessons from history and abroad.

To answer this question, let’s look at two contemporary(-ish) examples from Latin America and one from American history.

Political scientist Lauren Gamboa has a helpful article on this: “Opposition at the Margins: Strategies Against the Erosion of Democracy in Colombia and Venezuela.” She argues that certain “extra-institutional” strategies lead to failure, while sticking to the rules yields success in protecting threatened democracies.

She first offers the example of Venezuela under the left-wing Hugo Chavez, who won a popular election in 1999 but threatened democratic norms early in his rule. In 2002, the opposition attempted to remove him from power via a coup. The coup failed, and led to a crackdown, which spiraled into further erosion of democratic health in Venezuela.

In Colombia, the right-wing Alvaro Uribe posed a similar threat to democracy. Instead of abandoning the country’s institutions, the left and liberal Colombian opposition played—mostly—by the rules of the game, using parliamentary tactics to delay anti-democratic legislation. Eventually, Uribe was voted out of office.

While the details are different from our own, the principles at work are similar. Are vicious tactics that fly in the face of basic liberal democratic principles justified, as long as they’re utilized in defense of liberal democracy? Or might they actually contribute to a vicious spiral that makes things worse?

The quintessential example of American history that touches on this question is the conduct of Abraham Lincoln during the Civil War. At the start of the war, Lincoln’s sole goal was to restore the Union, but over the course of the conflict he became determined to bring about the end of slavery as well. To achieve both those goals, he took steps that took him to the boundaries of what the Constitution allowed and certainly got in the way of some of its higher minded principles.

The legality of the Emancipation Proclamation has always been dubious, no matter how uncontroversial its consequences. Moreover, as made famous by the film Lincoln—although cataloged more accurately in this academic work—the president engaged in myriad questionable tactics to secure the passage of the 13th amendment.

The Takeaway: Can the dilemma be resolved?

Insofar as there is an answer, it’s that there might be room to push institutional boundaries to respond to anti-democratic action, as long as those boundaries aren’t broken. As Gamboa points out in the case of Colombia, the opposition exploited technicalities in parliamentary procedure to incapacitate Uribe and stifle his antidemocratic efforts. In other words, liberal democrats need to maintain fidelity to the real rules of the game but shouldn’t necessarily shy away from using unorthodox tactics.

Now, New York Democrats are not “the opposition”—certainly not at the state level and not at the national level, either—but there’s a real possibility that in the 2024 presidential election, a GOP-controlled Congress could throw the race to Donald Trump: a definite bad actor. Before a party finds itself in such an unfortunate position, it’s not unfair to push institutions until they push back—as the New York court has—and no further.

Of course, the tenuous situation we find ourselves in suggests that this dilemma will continue to arise. It may not always be the case that turnabout is fair play. Sometimes the partisans of democracy will have to tie a hand behind their backs, if only because they’d make things worse otherwise. Understanding the dilemma we face is a crucial start.

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Beyond Gerrymandering | Insight
Gerrymandering is a problem. But it’s not clear that America’s illnesses can be cured by independent redistricting.
It's not all about gerrymandering—our electoral system is uncompetitive across the board.

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