With census data now in hand and the 2022 midterm election just over a year away, states are busily redrawing their electoral maps to take account of population shifts since 2010. In some states, the task falls to non-partisan commissions. In most others, however, state legislatures redraw district lines, fully aware of the political implications. In a country in which the word gerrymander dates to the Founding (a portmanteau of Elbridge Gerry and salamander, after the shape of the district he engineered), it should surprise no one that state elected officials draw district lines that favor themselves and members of their own political party.
My home state of New York is a dramatic example. After a political stalemate led to the use of court-drawn districts following the last census, New York voters approved a plan to hand over redistricting responsibility to a bipartisan commission that would use apolitical criteria to draw fair maps. But then Democrats won supermajorities in both houses of the state legislature. With the slim Democratic edge in the federal House of Representatives imperiled by the traditional advantage enjoyed by the party that does not hold the presidency as well as aggressive Republican gerrymandering in red states, the New York legislature appears poised to override the commission’s work and draw its own map with the likely impact of shifting as many as five Republican seats in Congress to Democratic control.
Given Democrats’ repeated complaints about gerrymandering by Republican-controlled state legislatures, Republicans and their allies will no doubt label the move by New York to respond in kind hypocritical. Is the charge fair? Perhaps, but as I shall explain below, not necessarily, and in the end, there are worse sins than hypocrisy.
Avoiding Unilateral Disarmament is not Necessarily Hypocritical
There are many circumstances in which pursuing a course of action one has criticized in others is inexcusably hypocritical. Think about the politicians who call for the resignation of their opponents for, say, having an affair, even as they themselves are committing adultery as well. As a general matter, if one condemns some action by others, one should not engage in that same action.
It can be hypocritical to call for a change in the law but to act in ways that would violate the changed law. For example, suppose Bruce argues that racist hate-speech is harmful and that therefore the Supreme Court should overrule the precedents holding it to be protected by the First Amendment. Even before the Court obliges, it would be hypocritical for Bruce himself to use racial slurs. His call for a change in the dominant understanding of the First Amendment necessarily entails a condemnation of racist hate-speech that is inconsistent with his conduct.
Nonetheless, there are circumstances in which one might seek a change in the law but be justified in continuing to engage in the conduct one seeks to forbid, because laws often solve collective action problems. Suppose that Sheila, who lives in the United Kingdom, believes that her country should switch from driving on the left side of the road to driving on the right. She reasons that although there would be a transition period, in the long run it would be beneficial to bring the U.K. into conformity with the practice in most of the rest of the world. Nonetheless, it would not be hypocritical for Sheila herself to continue to drive on the left side of the road while Parliament considers her proposal. Indeed, it would be grossly irresponsible for her to start driving on the right side of the road before the law has changed.
The law governing which side of the road one drives on is unusual in that all it does is solve a collective action problem. For safety, everyone must drive on the same side of the road, but the initial choice is essentially arbitrary. By contrast, many laws fall into an intermediate category. They have some independent normative content, but they also solve collective action problems.
Tax law is a good example. Suppose Gina thinks that, all things considered, the home mortgage interest deduction is bad policy, because it favors relatively wealthier homeowners over relatively poorer renters and distorts the housing market. Nonetheless, it would not necessarily be hypocritical for Gina, in calculating her own income tax, to take the deduction for her own home mortgage interest payments. Why? Because tax law does not just reflect ideal principles of justice. It also solves a collective action problem. The tax code as a whole reflects a collective judgment about what each person’s fair share of the tax burden should be. Gina’s support for eliminating the home mortgage interest deduction is support for eliminating it for everyone and redistributing the burden accordingly. It asks too much of her that she alone pay more in taxes than do others similarly situated.
I say that it is not necessarily hypocritical for Gina to calculate her taxes under the existing rules because, depending on the intensity and nature of her opposition to the home mortgage interest deduction, her taking of the deduction might be hypocritical. If she thinks that the disadvantage to renters violates some fundamental principle of justice, then perhaps she has a moral obligation to pay the extra tax notwithstanding the fact that she acts unilaterally.
The upshot is that it is sometimes but not always hypocritical to seek to change the law but continue to engage in behavior inconsistent with the change one seeks. Whether the charge of hypocrisy fairly applies in such circumstances depends on the nature of the law—to what extent it addresses freestanding evils versus solves collective action problems—as well as the grounds for seeking to change it.
What about gerrymandering? Certainly the core objection to gerrymandering is normative. Gerrymandering unfairly advantages the party in control of the state legislature, thereby undermining the right to vote and democratic principles. One might therefore think that someone who opposes political gerrymandering anywhere ought to oppose it everywhere. If so, New York legislators considering gerrymandering the state’s congressional districts to aid Democrats are indeed hypocrites.
Yet that analysis overlooks the larger context, which also includes a pronounced collective action problem. New York Democratic state legislators’ first choice might be that neither they nor the Republican-dominated legislatures in red states have the legal option of drawing a congressional district map that systematically overrepresents their own party. However, to this point, collective means of addressing the problem have been cut off.
Two years ago, in Rucho v. Common Cause, the Supreme Court held that federal courts could not adjudicate challenges to political gerrymandering. Congress could ban political gerrymandering by exercising its power under Article I, Section 4 of the Constitution to regulate the “manner” of congressional elections. Indeed, earlier this year, the House of Representatives attempted to do just that, passing H.R. 1, which (among many other election reforms) mandates the use of independent commissions to draw congressional districts. Unfortunately, the bill has stalled in the Senate. Unless and until the least progressive Democratic senators change their minds, vote to abolish the filibuster, and then send H.R. 1 to President Biden’s desk for signature, the first best option—nationwide abolition of political gerrymandering—remains off the table.
In this suboptimal world, New York Democrats are quite understandably reluctant to engage in unilateral disarmament. It’s true that overrepresenting Democrats in New York and Maryland does not exactly cancel out overrepresenting Republicans in Texas and Wisconsin, because members of Congress represent their districts, not just their parties. But two factors mitigate that distortion. First, over the last generation, politics has been nationalized to the point that intra-party differences today are narrower than in the past. Second, representatives of either party will tend to promote the distinctive local interests of their constituents.
Accordingly, even if one concludes that there is at least a soupçon of hypocrisy in the New York Democrats’ plan to gerrymander the state’s congressional districts, the only current alternative is worse. In this case, hypocrisy may be more than the tribute vice pays to virtue. It is itself a kind of virtue.