In assessing the current controversy over Texas Republicans’ proposed redistricting of the state’s U.S. House seats, two historic facts should be considered. 

One is that the principle of equal representation by population is well established in American history. In 1787, the Constitutional Convention required the members of the House of Representatives to be apportioned according to population as determined by a Census to be conducted within three years and every ten years thereafter. 

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This was a remarkable provision — the first example, so far as I know, in which representation was directly linked to population, and in which it was to be adjusted by what was the first regularly scheduled national census. 

The Framers were thinking demographically. They were certainly aware of the 1780s controversy in Britain over “rotten boroughs,” in which a wealthy Indian merchant could elect two members of the House of Commons by buying four pieces of property in Old Sarum. Their numbers included Benjamin Franklin, who in the 1750s accurately predicted that the population of the English-speaking colonies would exceed that of Great Britain in a hundred years. 

The second thing to remember is that the Founders were aware of partisan redistricting. Another signer of the Declaration and member of the Constitutional Convention was Elbridge Gerry, who, as governor of Massachusetts in 1812, signed a state senate redistricting bill that combined a grotesquely shaped group of towns in Essex County into one district, drawn by cartoonist Elkanah Tisdale with the wings and claws of a salamander. This was the original gerrymander (pronounced by purists like Gerry’s surname, with a hard G), which clustered Gerry’s Federalist opponents in a single district.

Congress in 1842 required equal-population districts within a state, but that provision was overturned in the 1929 law, which automatically reapportioned House seats among the states by applying an arithmetic formula to the census results. The predictable result was gerrymanders within the states, topped off by plans jamming the disfavored party’s voters in bloated districts signed by Nelson Rockefeller (R-NY) and Pat Brown (D-CA) in the nation’s two most populous states in the 1960 cycle.

The Supreme Court ended this in 1964, requiring one-person-one-vote congressional and state legislative districts. As a close student of every redistricting cycle since the 1960 Census, I have observed how the equal population standard severely limits the political gains for even the most partisan redistricters. 

You can only jam so many opposition voters into a limited number of districts. And suppose you create too many 53% districts for your own side. In that case, you risk losing the whole bunch when opinion generally or within specific voting segments 5% the other way, which tends to happen at least once every ten-year interval between censuses. 

You should not believe that computers or artificial intelligence have made gerrymandering more sophisticated. In the 1970s and 1980s, I watched California Democrat Phillip Burton redistrict his state and command legislators in other states to do theirs. He operated with pencil, paper, pocket calculator, and, as he said, “my brain.”

This is a useful background for appraising the uproar over Texas Republican Gov. Greg Abbott’s plans to redraw the state’s district lines this summer, which is much louder than when New York Democrats tried something similar last year. The Texan Republicans’ stated purpose is to increase their majority of their state’s House delegation from 25-13 to 30-8, a significant gain considering that Republicans control the current House (with vacancies filled) by just 220-215.

But there was a stench of hypocrisy in the air when Texas Democratic legislators fled to Illinois, where Democrat J. B. Pritzker, in 2021, signed a redistricting plan that gave his party a 14-3 edge. The district shapes, bacon strips emanating from Chicago wards into the prairies and fractal spirals connecting Democratic Downstate nodes, are far more grotesque than any of the Texas Republicans’ seats.

Similar protests and promises of retaliation came from Democrats Kathy Hochul of New York, whose delegation is 19-7 Democratic (and would be more so if a state court had not rejected an even more partisan plan), and Gavin Newsom of California, whose districts (drawn by a supposedly nonpartisan but obviously liberal-leaning independent commission) are currently 43-9 Democratic. 

In two of those states, the 2024 popular vote percentage for Republican House candidates was higher than the 2024 popular vote percentage for Democratic House candidates in Texas. It’s unclear how Democrats would create even safer seats in Illinois or New York. And Newsom has to convince voters to abolish the state’s current commission — not a sure thing, polls suggest — to counter Texas in this electoral cycle. 

Various high-minded folks have been calling for redistricting reform. But it’s hard to take politics out of politics. Supposedly independent state commissions are either pro-Democratic (California) or swing unpredictably from Democratic to Republican (New Jersey, Arizona). 

Critics complain about grotesquely shaped districts, but over the years, most of those have resulted from interpretations of the Voting Rights Act requiring maximizing the number of black- or, less often, Hispanic-majority districts. Those interpretations resulted from fears, justified when the Act was first passed in 1965, that whites would vote near-unanimously against blacks, though as long ago as 1972, a white-majority Atlanta district elected civil rights leader Andrew Young. 

Today, with nearly half the black members of Congress elected in non-black-majority districts and in a nation that has elected and reelected a black president, and with growing numbers of blacks voting Republican, that jurisprudence is on the brink of obsolescence. The Supreme Court has announced it will rehear arguments in a Voting Rights Act case next fall.

So what should be done about gerrymandering? Nothing beyond strictly enforcing the equal population rule, which limits but cannot eliminate partisan district-drawing. As for grotesque shapes, if the Supreme Court takes Justice Potter Stewart’s view of pornography (“I know it when I see it”), that would unleash a tide of partisan litigation which the court wishes to avoid. 

As for grotesque shapes, there are multiple formulas for assessing districts’ compactness, but there’s no principled basis for a court to choose one over another. Congress could choose, as it did in 1929, between equally valid formulas translating Census population results into integer numbers of House seats. But it doesn’t seem eager to address an issue that might put in play proposals to increase its seats from the not-constitutionally-required 435. 

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There’s a case where gerrymandering doesn’t make much difference. The ten largest states elect a majority of House members and are currently the only venues where partisan redistricting can switch more than one or two seats. 110 Republicans and 125 Democrats currently represent them. The Texas change would switch that to 115-120. That would be 49% of those states’ seats, the same as the 49% of their popular votes won by Donald Trump there in 2024. 

Maybe the Framers got it right when they opted for the equal population principle as the key to fair representation.