Why Democrats Might Need to Play Dirty to Win

To hear Democratic leaders decry gerrymandering as part of their current bid to enact landmark voting-rights legislation, you’d think the centuries-old practice was a mortal threat to the republic. But political necessity could soon demand that Democrats drop their purity act. To keep their narrow House majority, they might have to deploy the tactic everywhere they can, and every bit as aggressively as Republicans do.

Nowhere are the stakes higher for Democrats than in New York. The party there has its largest legislative majorities in a century and more sway over more seats than anywhere else in the country. A cutthroat approach to redistricting in New York could eliminate or substantially alter as many as five GOP-held seats—a number equivalent to the Democrats’ entire edge in the House.

The early maneuvering by New York Democrats is already revealing the party’s shaky commitment to its national anti-gerrymandering push, one that has long been rooted less in principle than the Democrats’ passionate message would suggest. What could impede the Democratic effort to make the most of its dominance in New York is not the fear of hypocrisy but the party’s internal politics.

Nationwide, the challenge for Democrats is formidable: The shuffling of House seats as a result of the decennial census is expected to shift power from mostly Democratic states like California, New York, and Illinois to states like Texas, Florida, and North Carolina—all of which will have legislatures controlled by Republicans who will be in charge of drawing new districts. “The bottom line is: If this becomes an arms race, and both parties maximize their advantage in the states that they control, Republicans will come out ahead,” David Wasserman, an analyst for the nonpartisan newsletter The Cook Political Report, told me. The GOP needs to flip just five Democratic seats to recapture the House majority in 2022, and conceivably, the party could gain all of those seats through gerrymandering alone. Wasserman projects that Republicans could net anywhere from zero to 10 seats from redistricting.

[Read: The GOP cheat code to winning back the House]

That gerrymandering poses a danger to America is a relatively recent discovery for Democrats. Only after Republicans routed them in state and congressional elections in 2010 and redrew hundreds of districts in their own favor did Democrats express outrage, which reached a fever pitch when they won the nationwide vote in the next election but saw the GOP secure its second-largest House majority in 60 years. The ensuing Democratic campaign against gerrymandering pushed states like Colorado and Virginia to adopt independent redistricting commissions aimed at preventing politicians from choosing their own constituents. None of this stopped Democrats elsewhere from gerrymandering themselves. After the 2010 census, they drew a notoriously skewed congressional map in Maryland that left Republicans with just a single seat in the eight-member delegation.

Now Democratic groups that for years have criticized the practice are urging their party not to create unfair maps in blue states like Illinois and New York. “Two wrongs don’t make a right,” Kelly Ward Burton, the president of the National Democratic Redistricting Committee, told me. The group was launched in 2017 with the backing of former President Barack Obama and former Attorney General Eric Holder to reform redistricting. Burton, a former executive director of the Democratic Congressional Campaign Committee (DCCC), argues that Democrats don’t need to gerrymander to keep the House majority. “We want maps that reflect the will of the voters and reflect the actual makeup of the state.” If that occurs, she said, “then the House stays competitive, and we can win.”

That’s a bet many Democrats aren’t willing to make.

In sheer numbers, New York is the Democrats’ best opportunity to offset Republican redistricting gains. It’s also, Wasserman said, “the biggest question mark.” In 2014, the citizens of New York joined the movement against gerrymandering by voting to create an independent commission that would redraw the state’s congressional and legislative districts. Power in New York was divided at the time, and the state constitutional amendment creating the panel emerged from a deal between Governor Andrew Cuomo and Republican leaders in Albany.

Yet the commission does not have the last word over the maps: The law allows the legislature to reject or modify the panel’s submission. Now that Democrats have won supermajorities in both the assembly and the senate, they’ve moved quickly to claw back even more of the power that voters gave to the commission. Earlier this year, lawmakers approved the inclusion of an amendment on the upcoming November ballot that would make it easier for Democrats to enact their own redistricting plan without support from Republicans.

The commission, meanwhile, must submit its first maps to the legislature by the beginning of 2022, but the legislature has starved it of money so far. The commission has no office, no telephone, and no email address. “We’re virtually stalled,” a Republican member, Charlie Nesbitt, told me. The panel has hired staff but has been unable to pay them. Nesbitt said he was hopeful that the legislature would allocate money in the upcoming budget, but when I asked him whether he thought Democrats were trying to hobble the commission, he replied: “It’d be hard not to draw that conclusion.”

Publicly, Democrats say that’s not true. “We absolutely want it to work,” Assembly Member Robert Rodriguez, the chair of a legislative task force in charge of reapportionment, told me. Privately, however, multiple members told me they expect legislators to draw the maps.

Neither the commission nor the legislature can begin its work in earnest until the Census Bureau releases data from the 2020 count, which was hampered by the pandemic. New York is expected to lose at least one of its 27 House seats, possibly two. Democrats would want to ensure that both seats come from the Republican delegation, which currently has eight members. That effort became easier last week when Republican Representative Tom Reed, who had been accused of groping a 25-year-old lobbyist, announced that he would not seek reelection. Legislators could merge Reed’s district with another GOP-leaning seat and create a Democratic-leaning district elsewhere.

Democrats could also pack more upstate Republicans into Representative Elise Stefanik’s geographically enormous district in New York’s North Country, making the Republicans in neighboring districts, Representatives Claudia Tenney or John Katko, more vulnerable. In New York City, Democrats could target the lone congressional seat held by a Republican, Representative Nicole Malliotakis of Staten Island, by adding to the district more liberal areas of Manhattan or Brooklyn. And on Long Island, an aggressive redistricting map could threaten Representative Lee Zeldin, a Republican who has already announced he’s exploring a run for governor next year.

For national Democratic leaders—who include New York Representatives Sean Patrick Maloney, the chair of the DCCC, and Hakeem Jeffries, the chair of the House Democratic Caucus—the overriding objective is to have state lawmakers secure every seat they can and preserve the party’s majority in the House. But Democratic members of the New York delegation undoubtedly will have their own political concerns: They may be reluctant to give up certain loyal constituencies or take on more Republican voters that would force them to campaign harder for reelection.

Internal party politics also come into play. Democratic leaders could use the redistricting process to protect or punish certain members, or to insulate themselves from primary challenges. Speculation is already circulating that some Democrats could target the New York City district of Representative Alexandria Ocasio-Cortez, who hasn’t ruled out a 2022 challenge to Senate Majority Leader Chuck Schumer. This seems unlikely, however: Ocasio-Cortez has powerful allies in the legislature who will probably protect her seat.

Then there’s the matter of who will be governor of New York next year when it’s time to sign the new maps into law. Cuomo, who’s facing numerous accusations of sexual harassment, has refused calls to resign by most of the Democratic leadership in the state. Nobody is sure whether he can survive both an impeachment inquiry and an investigation by the state attorney general. “The New York Democratic Party is neither democratic nor a party, so predicting is nearly impossible,” one former legislator told me with a laugh.

Republicans have never had qualms about acknowledging the partisan aim of their gerrymandering efforts. None of the Democrats I talked with, however, would admit—on the record, at least—that they needed to draw maps with the same ruthless precision as the GOP. “The redistricting process in New York has been so rigged in favor of Republicans for so long that mere fairness would yield Democratic gains,” State Senator Michael Gianaris, the deputy majority leader and a co-chair of the reapportionment task force, told me.

He and other Democrats argue that because the population loss costing New York at least one seat in Congress is coming from the predominantly Republican areas upstate, the party that loses those districts should be the GOP. But from another perspective, the Democratic advantage in Congress already exceeds its standing in the state. Democrats won about 60 percent of the New York vote in 2020, while capturing 70 percent of its congressional seats. If Democrats aggressively redraw the maps to their advantage, that number could grow to nearly 90 percent.

Such a map would be difficult for people like Burton to defend. She’s vowed to take Republican states to court to challenge extreme gerrymandering. Would she sue New York Democrats if they did the same? Burton dodged the question with a chuckle, replying that Republicans had already promised to bring lawsuits in places like New York.