Will Democrats Play Ball? – California’s High-Stakes Fight Over its Congressional Map

California Governor Gavin Newsom (D) is hoping to counter Republican gerrymandering with Democratic gerrymandering (Photo via Reuters)

ALEX LI:  Ballots have been sent out to California voters who must now decide whether to allow for partisan gerrymandering through 2030. The question Proposition 50 poses comes down to this: will Democrats play ball?

Ballots were sent out Monday, October 6th, to California voters who must now decide whether to allow state Democrats to redraw its congressional maps mid-decade. Proposition 50 would mandate the use of new gerrymandered maps in elections through 2030. After 2030, California’s existing Independent Citizens Redistricting Commission would resume its duties. The Prop 50 campaign comes in response to White House pressure on Republican-dominated state legislatures to draw right-leaning maps in advance of the 2026 midterms. On the Democratic side, this campaign has come to encapsulate the debate that has been raging in the party since as far back as Newt Gingrich’s time as Speaker of the House in the 1990s: how should Democrats respond to the opposing party’s increasing willingness to flout political norms and rewrite the rules of the game in their own favor? This fight over congressional maps is just the latest example of constitutional hardball: political maneuvers for partisan gain that, while technically legal, undermine constitutional principles or pre-constitutional democratic norms. Now, almost three decades into an era of politics transformed by one side’s willingness to use hardball tactics, the question of this Prop 50 election comes down to this: will Democrats play ball?

Over the past two decades, Democratic lawmakers and voters across the country have sought fair congressional maps. In states like California, Virginia, and Michigan, lawmakers and voters successfully implemented Independent Redistricting Commissions, taking redistricting power away from partisan actors and placing it in the hands of non-partisan processes. As a result, today one in five congressional seats are protected from partisan gerrymandering. In 2015, when the Supreme Court ruled that Arizona’s independent redistricting process was constitutional, the League of Women Voters called the decision a “tremendous victory for democracy.” Independent Redistricting Commissions were the Democratic response to Republican gerrymanders in states including Texas, Florida, and North Carolina. However, even as California voters were considering plans for an Independent Citizens Redistricting Commission back in 2010, there were concerns within the party that this would hamstring Democrats at a moment when Republicans were aggressively pursuing a congressional leg up. While agreeing that partisan gerrymandering undermined voters, Morgan Caroll, the chair of the Colorado Democratic Party, cautioned that “as a matter of politics, if across the country every Dem is for independent commissions and every Republican is aggressively gerrymandering maps, then the outcome is still a Republican takeover of the United States of America with a modern Republican Party that is fundamentally authoritarian and antidemocratic. And that’s not good for the country.” Nancy Pelosi has similarly argued that while she is not opposed to independent redistricting, she doesn’t want Democrats to cede power unilaterally. Outside of party leadership, many critics saw these moves as examples of the party’s unwillingness to respond forcefully to Republican constitutional hardball. In essence, “critics are divided between bemoaning Democrats’ unwillingness or ineptitude to ‘play dirty’ and exhorting both sides to restore democracy by respecting the rules of the game.”

Legal scholar David Fontana has argued that leaders in the Democratic Party make a common tactical error: “excessive cooperation with political forces that do not manifest the same behavioral patterns of cooperation.” He points specifically to the obstruction that President Obama faced with his judicial nominations. Judicial nominations had become an increasingly non-cooperative political arena, culminating in Mitch McConnell’s refusal to consider Merrick Garland’s nomination to the Supreme Court. Fontana argues that Democrats lost not because they lost the political fight in the Senate, but rather because they did not start a fight at all. In game theoretic terms, in non-cooperative environments like the Senate Judiciary Committee or congressional elections, political parties have ground to gain through non-cooperative strategies. Moreover, when a party is aggressively partisan, they risk less pushback from their political base when they choose to engage in more aggressive tactics. In this scenario characterized by non-cooperation, increasing partisan polarization, and therefore no incentive to act according to the rules of the game, one-sided constitutional hardball does not lead to better cooperation, it leads to democratic decay. According to this model, “Republicans continue to deviate from cooperative strategies in part because Democrats… have failed to respond proportionately.”

So what should voters in California do? California Governor Gavin Newsom is arguing that “it is time to play hardball.” He says that Democrats can’t let the Republican gerrymander in Texas go unaddressed and that Prop 50 is about standing up for the rule of law. However, others warn that Democrats risk falling into an ever escalating race to the bottom. Writing in 2018, law professors Joseph Fishkin and David Pozen warn that a tit-for-tat escalation of constitutional hardball “with no obvious endpoint” could result in furthering “the use of constitutional hardball by Republicans, as members of both parties successively shred cooperative norms, shrink the space for bipartisan policy solutions, and make governance more difficult.” This, Fishkin and Pozen argue, is a dangerous game to play. This argument has not resonated with supporters of Prop 50 who say that the gerrymander is a temporary measure in direct response to Republican efforts and point to the legislation introduced last month by California Senator Alex Padilla that would require Independent Redistricting Commissions nationwide. In August, California Republican Representative Kevin Kiley introduced a bill to ban mid-decade redistricting, also nationwide. This, Prop 50 backers say, is the endpoint. 

Good government groups like Common Cause seem to have internalized some of that logic. Virginia Kase Solomón, President and CEO of Common Cause, wrote that the organization will not “call for unilateral political disarmament in the face of authoritarian tactics that undermine fair representation.” What the organization did do is launch a set of “fairness criteria” for mid-decade redistricting which includes proportionality (redistricting must be a targeted response to mid-decade redistricting in other states) and endorsement of independent redistricting.

There seems to be Democratic momentum for a more aggressive response, especially following the government shutdown battle earlier this year in March – a classic hardball scenario – in which Democratic Senate Minority Leader Chuck Schumer blinked. At the time, New York Democratic Representative Joe Morelle worried that Senator Schumer’s move to allow Republicans that instance of constitutional hardball would authorize future escalation, telling NPR that “this just gives license to Republicans to continue to dismantle the government.” Representative Alexandria Ocasio-Cortez agreed, saying that voting to avoid shutdown codified and empowered the Republican Party’s hardball moves. Seven months on, the Trump Administration has deployed troops to American cities, indicted political enemies, and we are amidst a new shutdown fight; the question remains, will redistricting be the next open front? The choice is now in voters’ hands.

Alex Li is a Sophomore in the College majoring in public policy and double minoring in Law, Justice, and Society and Theology and Religious Studies. They are from Albany, California.