The states of statewide gerrymandering in 2023

Given the size and scope of the United States, the fact that year after year America holds reasonably functional elections is something of a miracle. Accommodating millions of voters across millions of square miles is a staggeringly complex choreography for politicians, public servants, and volunteers who come together to ensure the fundamental engine of our democratic process continues to function.

But that same complexity also makes America's elections particularly susceptible to structural machinations designed to influence the electoral process wholesale. Of these methods, perhaps none has proven itself to be as effective and pervasive as that of gerrymandering, the process by which legislators draw and redraw electoral districts in such a way as to deliberately contain a certain demographic of voters who will, in turn, cast their ballots along a reliably partisan line.

While gerrymandering for maximum effect has by no means been limited to one political party or another, Republicans have leaned particularly heavily into the art of redistricting, honing the practice well beyond most of their Democratic counterparts. With legal distinctions between acceptable and unconstitutional gerrymandering, and perpetual battles in the courts and across state legislatures constantly shifting electoral maps, it appears that the practice will remain a potent force in the American electoral system for the foreseeable future.

Nevertheless, with another national election cycle looming, we've reached what CNN has dubbed a "moment of reckoning" for redistricting. When voters head to the polls next November, they will do so in the midst of an ongoing fight not only over who will represent them at multiple levels of government, but over how the electoral process itself should operate, and how to protect that operation from external machinations.

Sweet home Alabama?

Perhaps nowhere in the country has the fight over gerrymandering reached more of a fever pitch than in Alabama. There, the state's Republican-lead legislature has refused to follow a federal court order to re-draw an electoral map which, per the ruling judges, "plainly fails" to abide by the Voting Rights Act. This comes just months after the United States Supreme Court affirmed a 2022 state court order to amend a proposed electoral map to "allow an additional Black majority district to account for the fact that the state is 27% Black," CNN reported. When legislators attempted to submit a redrawn map, again without an additional Black majority district, the three-judge federal panel lashed out at Alabama Secretary of State Wes Allen, writing in their mid-September order that it was "exceptionally unusual for a litigant who has presented his arguments to the Supreme Court once already — and lost — to assert that he is now ‘overwhelmingly likely’ to prevail on those same arguments in that Court in this case."

The addition of a more reflective congressional district in a single state is significant in and of itself — particularly given the GOP's razor-thin US House majority — but all the more so here, given "the extent to which Alabama’s calculation to defy the Supreme Court was made not simply by state legislators in Alabama" according to the Alabama Political Reporter. Rather, it has been reportedly "driven by nationally connected political operatives" including Republican power-broker Leonard Leo, as part of a broader enterprise to reshape the electoral system currently regulated by the 1965 VRA.

Republican lawmakers, especially in the deep-red South "have looked to circumvent racial gerrymandering provisions in the Voting Rights Act for decades," Politico noted, citing a trend of "partisan reasons for drawing their lines that ultimately result in less minority representation across the South." To that end, Alabama Democratic state Rep. Chris England told the outlet that the GOP's refusal to abide by the growing list of judicial orders is an attempt to "either run the clock out to force us to use the illegal map," in the coming election year, or to "take another stab at allowing the Supreme Court to accept their map and get rid of Section 2 of the Voting Rights Act." According to Alabama Political Reporter, that may very well be the plan as a number of lawmakers and operatives involved in the Alabama GOP's redistricting effort have been laboring under the "intelligence" that Supreme Court Justice Brett Kavanaugh would be "open to rehearing the case as a constitutional challenge to the validity of Section 2 of the Voting Rights Act."

On Wisconsin

While Alabama lawmakers have focused on digging their heels in against the judicial branch in the alleged hopes of either waiting out the coming election cycle, or challenging a core precept of the Voting Rights Act before a reportedly receptive Supreme Court, legislators in Wisconsin have taken a different tact. There, conservative state lawmakers have begun threatening to impeach newly elected State Supreme Court Judge Janet Protasiewicz if she does not recuse herself from two pending cases that could undo the current election maps — ones which, according to The New Yorker, "for the past twelve years has made Republican control of the Wisconsin statehouse virtually impregnable."

Called the state's electoral maps "rigged" and "wrong" during her campaign for the bench, Protasiewicz has been unambiguous about where she stands on the issue of gerrymandering. And with her recent victory skewing the court to a liberal majority, it seemed as if election reformers in Wisconsin were finally in a position to do something about it. In response, threatened Republican lawmakers have begun "coalescing around the prospect of impeaching" the judge, according to The New York Times, claiming her previous comments rendered her unsuitable to impartially rule on a series of cases challenging the current electoral status quo. While a straightforward impeachment and conviction "wouldn’t actually be that big of a deal," Vox pointed out, a quirk in the Wisconsin state constitution means that if she were impeached, and the trial delayed, it would create "a vacancy on the court that could last for a very long time," and rob liberals of the deciding vote in any pending gerrymandering case.

Here, then, is the ultimate danger of extreme gerrymandering: Wisconsin Republicans "have a tool at their disposal to protect their disproportionate power," The Washington Post's Philip Bump wrote. "The disproportionate power they granted themselves." With Wisconsin existing as "one very conservative state and one very liberal state jammed together," The Guardian described the situation as a crucial test case of whether the most brazen attempts to turn competitive elections into uncompetitive one-party control will fly."

'A smaller advantage'

In spite of the extreme cases in Wisconsin and Alabama, the overall effect of gerrymandering nationwide may be slightly more diluted than it would at first glance seem. In the run-up to the 2022 midterm elections, The New York Times' David Leonhardt surmised that the electoral map that year was one of the fairest in recent memory, thanks in part to both parties’ extreme gerrymanders which "have effectively canceled each other out" — animated to a degree by the renewed sense of urgency among Democrats for countering the fabricated electoral advantages Republicans had built over the past decade. That effort included court challenges that "eroded or eliminated some of the party’s most valuable gerrymanders" in states like Virginia and North Carolina. Conversely "No state courts have acted to weaken Democratic gerrymanders in" states like New York, Illinois, and Nevada.

While gerrymandering itself may be a bipartisan pastime, and its overall effect may have lessened in recent election cycles, Wisconsin and Alabama each offer a window to a resurgent — and extreme — focus on using the levers of legislative control to protect those same levers from the normal ebb and flow of democracy. Whether those efforts will ultimately succeed remains to be seen. But as we head into another national election year, it's worth keeping an eye on both states, either as a cautionary tale, or a preview of elections yet to come.