In the week after Election Day 2022, as states counted the over 100 million votes cast, it appeared – for a fleeting moment – that Democrats had achieved the impossible and held the House of Representatives in the midterm elections. The Democratic Party indeed came very close to this feat; they outperformed expectations in states like North Carolina, Michigan, and Pennsylvania. But ultimately, one redistricting battle was responsible for Democrats’ loss of control of the House: New York.

In New York, the Democratic legislature passed a congressional map that would have likely elected 23 Democrats and three Republicans to Congress in 2022. However, due to anti-gerrymandering provisions in the New York state constitution, a state court threw out that map and drew its own. Subsequently, in November, voters elected a mere 16 Democrats (and 11 Republicans) to Congress. That difference of seven House seats constituted the entire Republican victory in the House. Had the original New York map remained, Democrats would likely represent 220 – a majority – of the 435 congressional districts today.

At first glance, observers may claim that this was a democratic process; of course legislatures should not gerrymander congressional districts. What many voters do not know, however, is that protections against gerrymandering (commonly implemented within state constitutions or via transferring redistricting power to an independent commission) are found almost exclusively in blue states.  In the 2022 elections, Democratic legislatures drew only 43 congressional districts, less than a tenth of the chamber. That figure pales in comparison to the whopping 173 congressional districts drawn by the GOP, nearly 40% of the House.

Republicans are responsible for this disparity. In Democratic states, the GOP has pushed for independent redistricting commissions and other protections against gerrymandering to create “fair” congressional maps.  Proponents of such protections will claim that fair maps are beneficial – and they are – but these arguments ignore the fact that the GOP has supported these measures only so they could gerrymander their own states for partisan advantage.  Congress could, under the U.S. Constitution, enact independent redistricting commissions nationwide, but what motive would congressional Republicans have to support such an act?  Fair maps would reverse their hand-drawn advantage and make it more difficult for them to win the House. Ironically, the only way for congressional Republicans to support stopping gerrymandering is if Democrats outdraw them through local redistricting.

To do this, Democrats would have to dismantle the protections against gerrymandering that exist in deep blue states. These protections are found in state law and state constitutions, established by voter initiatives. These protections, however, have a fatal flaw: the current conservative majority of the U.S. Supreme Court would likely declare them all unconstitutional.

In 2015, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Arizona state legislature sued the state’s independent redistricting commission, claiming that under the Elections Clause of the U.S. Constitution, the state legislature’s redistricting authority could not be removed except by act of Congress.  The case eventually reached the Supreme Court, which decided 5-4 (with Justice Kennedy joining the four liberal justices) in favor of the independent redistricting commission.  The dissent, written by Chief Justice Roberts, asserted that allowing voters to take redistricting power from the legislature would result in stripping a state legislature of one of its enumerated federal constitutional powers.  Today’s Court composition is obviously very different, and it would likely reject the constitutionality of independent redistricting commissions by a 6-3 vote.

Opponents may claim that challenging voter-created independent commissions is (little “d”) undemocratic – and it may be, but that argument ignores an important fact: Republicans have been cleverly encouraging voters to support these measures in blue states.  It is not well known, but Republicans have been active in supporting the formation of independent redistricting commissions in California, Colorado, Connecticut, Michigan, New York, Virginia, and Washington – all blue states. Taken together, these states account for 28.7% of the House.  Democrats – and the country – should not let them have it both ways.

Democratic legislatures should aggressively pursue attempts to eliminate the undemocratic redistricting advantage that Republicans have created by challenging redistricting restrictions in blue states.  Facing an onslaught of Democratic gerrymandering in states like California, New York, Washington, and Michigan, Republicans would suddenly be much more interested in having fair maps drawn across the nation – from every political shade from Alabama to Massachusetts.

Consequently, for very different reasons, both political parties should want establishment of a national redistricting commission.  For their part, Republicans would lose fewer seats if such a commission was created than they would if partisan gerrymandering was implemented in blue states. Democrats, on the other hand, could gain a few well-deserved districts through a national commission while also adhering to their anti-gerrymandering principles. Creating a national independent redistricting commission presents a rare alignment of interests for both parties and, more importantly, would benefit our nation.