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Terms of Engagement – The Great American Redistrict-Off

A fight is brewing between some of America’s largest states. A line has been drawn, not in the sand, but on a Texas map.

Texas GOP lawmakers recently unveiled a new draft district map, created to flip several House seats from blue to red. In response, California Governor Gavin Newsom announced his intention to respond with a California map that favored Democrats, despite California’s existing independent redistricting commission. Maryland, Illinois, and New York could also be poised to engineer maps to produce more House seats likely to be won by Democrats.

On Tuesday, August 5, 2025, Harvard Law School’s Nicholas Stephanopoulos, Kirkland & Ellis Professor of Law, joined Archon Fung and Stephen Richer on Terms of Engagement to discuss redistricting, how these map (re)drawing efforts will impact voters, and answer the question: Can we ever put a stop to gerrymandering in the U.S.?

Tune in to the Audio Recording

About this Week’s Guest

Nicholas Stephanopoulos is the Kirkland & Ellis Professor of Law at Harvard Law School. Stephanopoulos’s research and teaching interests include election law, constitutional law, administrative law, legislation, and comparative law. His work is particularly focused on the intersection of democratic theory, empirical political science, and the American electoral system. He is the author of Aligning Election Law (2024) and a coauthor of Election Law: Cases and Materials (7th ed. 2022). He has also written for popular publications including the New York Times, Washington Post, Los Angeles Times, Chicago Tribune, Atlantic, New Republic, Slate, and Vox. He has been involved in several litigation efforts as well, including two partisan gerrymandering cases based on his scholarship and decided by the Supreme Court. He continues to work on litigation and advocacy as the Director of Strategy of Harvard Law School’s Election Law Clinic.

About the Hosts

Archon Fung is the Winthrop Laflin McCormack Professor of Citizenship and Self-Government at the Harvard Kennedy School and the Director of the Ash Center for Democratic Governance and Innovation. His research explores policies, practices, and institutional designs that deepen the quality of democratic governance with a focus on public participation, deliberation, and transparency. He has authored five books, four edited collections, and over fifty articles appearing in professional journals. He received two S.B.s — in philosophy and physics — and his Ph.D. in political science from MIT.

Stephen Richer is the former elected Maricopa County Recorder, responsible for voter registration, early voting administration, and public recordings in Maricopa County, Arizona, the fourth largest county in the United States. Prior to being an elected official, Stephen worked at several public policy think tanks and as a business transactions attorney.  Stephen received his J.D. and M.A. from The University of Chicago and his B.A. from Tulane University.

Stephen has been broadly recognized for his work in elections and American Democracy.  In 2021, the Arizona Republic named Stephen “Arizonan of the Year.”  In 2022, the Maricopa Bar Association awarded Stephen “Public Law Attorney of the Year.”  In 2023, Stephen won “Leader of the Year” from the Arizona Capitol Times.  And in 2024, Time Magazine named Stephen a “Defender of Democracy.”

Referenced in this Episode

The Novel Strategy Blue States Can Use to Solve Partisan Gerrymandering by 2024
By Aaron Goldzimer and Nicholas Stephanopoulos
https://slate.com/news-and-politics/2022/05/new-york-democrats-partisan-gerrymandering-2024.html

California’s Ambitious Experiment on Redistricting Reform Gets Nod from Harvard
https://ash.harvard.edu/articles/californias-ambitious-experiment-on-redistricting-reform-gets-nod-from-harvard/ 

Credits

Music: Marimba Technology Explainer, Music Media Group

Video: ABC10 and WTEN

Episode Transcript

Expand to read the transcript

Archon Fung: Hey everyone. Welcome back. You’re listening to Terms of Engagement. I’m Archon Fung, professor at the Harvard Kennedy School and Director of the Ash Center for Democratic Governance and Innovation.

Stephen Richer: And I’m Steven Richer, former Maricopa County Recorder, and now a senior practice fellow in American Democracy at the Ash Center at Harvard Kennedy School.

Archon Fung: We’re back for our fourth episode and our new weekly series. I don’t know how long we can keep saying it’s a new weekly series, but it still feels new to me. It’s great to be back.  Today’s conversation is a little bit different. We’re speaking to you from the recent past. It’s 9:30 AM Eastern time this morning to be exact. We’re prerecording to accommodate, summer camp schedules and so on. However, this episode is recorded and set to go live at our normal time of noon. We are committed to a live experience, and so we’ll be responding to any comments that appear on, on the live chat, in real time. So, we can’t respond here in the show, but we’ll be monitoring the chat and responding there.

Stephen Richer: So, this week we’re going to talk about one of the topics that you suggested that some one of our watchers wrote in and recommended we talk about, and it’s one of the hottest topics in politics today. It’s the redistricting tit for tat that is potentially going down over the next few weeks, prompted by a plan to mid-decade redraw Texas’ congressional lines such that Republicans can potentially pick up five more seats. So, we’re going to be talking all about the different elements of that. And to join us and to offer some special insight is the Kirkland and Ellis professor of law at Harvard Law School. Nick Stephanopoulos, Professor Stephanopoulos is an expert in all things elections, all things redistricting, all things gerrymandering, as well as constitutional law and administrative law. In addition to being a professor, he is also part of the election law clinic at the Harvard Law School. And most importantly, he is my former law school professor <laugh>, and he taught me election law. So, if you have ever found my knowledge on that topic to be wanting, you now know whom to blame. So, welcome Professor Stephanopoulos. Welcome Nick.

Nicholas Stephanopoulos: Thanks very much, Stephen.  Great to see both of you and you know, Stephen, it’s, it’s wonderful chatting, um, outside the classroom,

Archon Fung: Excellent. Alright, so just a super quick rundown for people who haven’t been following the details exactly about what’s going on in Texas, California, New York, maybe Illinois and Maryland. Redistricting usually happens at every 10 years after the decennial census prompts a redrawing of lines because they figure out how people have moved around and how, people have shifted. And so, they redraw congressional districts accordingly. This year, however, we’re seeing a potential spike in redistricting ahead of the 2026 elections.  About a month ago, the Trump administration sent, the state of Texas and Governor Abbott, a request to redistrict, four or five districts in particular that they said violated the Civil Rights Act.  If those districts are redistricted, they would, likely have the effect of creating, between three and five new Republican seats from Texas in the house. As of the latest reporting, Texas Democrats have fled to Illinois, New York, and Boston. So that in order to prevent the state legislature from, holding a vote, by denying them a quorum and outside of Texas, democratic governors, including California’s Gavin Newsom and New York’s Kathy Hochul, have announced their intentions to respond to the Texas map by redistricting in those states. Maybe we could play a clip, a short clip of what Governor Newsom and Governor Hoel are saying

Gavin Newsom:  A midterm rejection of objectivity and independence. Um, an act that we could criticize from the sideline or an act that we can respond to in kind fight fire with fire.

Kathy Hochul: What I’m going to say is all fair and love and war, because we are following the rules we do re every 10 years, but there’s other states that are violating the rules and are going to try and give themselves an advantage. All I’ll say is I’m going to look at it closely with Hakeem Jefferies.

Stephen Richer: So are we in, so I love de are we in love or are we in war <laugh>?

Well, so one of the things I appreciate about this is sort of the, the, the transparently naked partisanship of it <laugh> in that President Trump realizes that the Republicans might not be able to keep the United States House in the 2026 elections. And so, his plan is simply to increase the number of Republican held US House seats in Texas from 25 of 38 to draw these districts so that they can hold 30 of 38, and I think we should maybe start there is, is can, can you even do that? Like, are there any limitations to how much partisan gerrymandering a state can do?

Nicholas Stephanopoulos: Yeah. Great. So, um, unfortunately there, currently is no federal enforceable ban on partisan gerrymandering or limit on partisan gerrymandering. There was litigation that I was involved with, in the 2010s, about partisan gerrymandering, and some lower federal courts began striking down, egregious maps across the country, as unlawful partisan gerrymanders. But in a really tragic 2019, Supreme Court decision, the court held that partisan gerrymandering claims are categorically non justiciable, not suitable for resolution by federal courts. And so that means there is literally no federal constitutional check on partisan gerrymandering. You want to draw a map that, massively and durably over represents one party totally fine. You want to re redistrict every two years to keep fine tuning districts totally fine. As far as John Roberts is concerned, um, you want to draw non-continuous bubble districts, you know, joining a hundred voters over here with a hundred voters over there without even having a geographic link between them. Totally fine as far as John Roberts is concerned. So, we’re now living in the world that the Supreme Court made for us with its 2019 decision.

Stephen Richer: So in all likelihood, what Texas is considering is perfectly lawful correct?

Nicholas Stephanopoulos: Perfectly lawful in terms of partisan gerrymandering.  , there’s an intricate body of law about race and redistricting, and Texas is a, a very racially diverse state with substantial African American and Latino populations. And so it’s much more complicated whether this new district map would be permissible under racial gerrymandering doctrine and or the Voting Rights Act from analysis that I’ve seen. It’s quite plausible that there would be decent racial gerrymandering or racial vote dilution claims, against this map. So, I wouldn’t say the legality of the map is completely clear at this point.

Archon Fung: Nick, I, um, I have a question that it seems like the reporting is kind of skirted over the original letter from the Trump administration to Texas. And it said that you’ve got to redistrict because we feel like, I think, um, that we feel like these four or five districts are out of compliance with the Voting Rights Act and racial requirements of fair districting. It didn’t say, you know, Mr. Trump needs to have five more Republican seats, but then everybody jumps to, oh, they obviously did this to get five more Republican seats. So do you view that original letter as pretextual or there’s something to it, or, um, like go back to that initial kind of prod?

Nicholas Stephanopoulos: Yeah, I mean, so in, in terms of timing, that letter wasn’t the beginning of this saga. Trump saying he wanted five more seats out of Texas preceded that letter which is why everyone knows the letter is a fig leaf. You have Trump pressing Texas to design more Republican districts. Then, you know, a month or two later this short cursory, extremely poorly reasoned letter comes out asserting with next to no substantiation, that Texas’s current plan is unlawful. Um, the letter is, is getting deep into the weeds, but the letter is nuts from a legal perspective. Texas, like many states, has a number of so-called coalition districts in place. These are just districts where different groups of minority voters, so for example black and Latino voters together can elect their mutually preferred candidate in a, in a court decision a year ago the Fifth Circuit said that under the Voting Rights Act, you’re not allowed to sue to try to win the creation of additional coalition districts.

Nicholas Stephanopoulos: You know, fine I think that’s wrong, but put that aside, um, no authority says that the mere existence of coalition district poses any problem. And you know, courts have often thought of coalition districts as models of what we want in American democracy, you know, different groups of voters working together, not separately to elect mutually preferred candidates. And so there is no basis for saying that existing coalition districts just because of their mere existence are somehow unconstitutional. But that’s the logic of, of this letter. And so I think that it’s, you know, horribly reasoned and is obviously not a true basis for, for re redistricting in Texas.

Stephen Richer: So, so setting aside potential race litigation as a result of these, this new Texas map, the online outrage over this likely isn’t the result of a studied interpretation of constitutional law. It just seems unsavory, I think, to the average American, but we do partisan gerrymandering in lots of states every 10 years. So is what we’re objecting to here, really just the, the when, not that it’s a partisan gerrymandered state lines, but just that we’re doing it mid-decade.

Nicholas Stephanopoulos: Yeah, I’d say two things. One is that the timing matters, right? We don’t want to have endless re redistricting, we want to have some stability in representation. We don’t want to have states just fine-tuning districts every couple of years to make sure that incumbents are perfectly entrenched forever. And so, you know, I think partisan gerrymandering full stop is incredibly problematic, but it’s even more problematic when it recurs over and over again in the middle of the decade. And we get no mis here, is that we know how to measure the partisan fairness of legislative bodies. And before Texas, we drew its map or tried to, to read its map. We happened to have an exceptionally fair US house in aggregate um, I’ve done some work on this. We have the fairest US house right now into aggregate in 30 or 40 years, um, virtually perfect partisan fairness as measured in, in multiple different ways.

Nicholas Stephanopoulos: So, I can imagine that the argument for re redistricting in some state, if the goal is to offset an existing bias and promote national partisan fairness. But we’re starting from a terrific baseline, but the effect of gerrymandering, Texas gerrymandering, Ohio, Missouri, other states that have been banded about would be to introduce a large skew where there isn’t one right now. Um, and I think the, you know, the skew of chambers of Congress is incredibly important for national representation and policy making. Um, and so part of why I’m outraged by the Texas effort is that it threatens to eliminate the fairness that we’re very, very fortunate to finally have at the aggregate US house level.

Archon Fung : Nick, I wanted to ask you about an article you wrote back in 2022, making the long version of the case that you just made. You argued that Democrats could fix gerrymandering counterintuitively by engaging in counter gerrymandering to offset Republican gerrymanders in places like Texas, North Carolina, Wisconsin, that give them advantages in house races to achieve a national balance that you just talked about. So do you think that Governor Newsom and Hochul are basically following your advice now and do you endorse their moves?

Nicholas Stephanopoulos: Yeah, I think they’re exactly following the prescriptions from that article a few years back.  My basic view is that chamber level fairness is what matters not delegation or state level fairness. You know, if, if we think about a given state, no one would be very happy if Western Massachusetts was perfectly fair in its districts. But Eastern Massachusetts was massively biased in favor of the Democrats. We would say that adds up to a terrible Massachusetts legislative chamber. Um, the US House is just like that. It’s a big legislative chamber with legislators elected from across the country. And I think what matters is the overall fairness to the US House, not the fairness of any particular component of the US House. And so here we have Texas trying to bias one component of the US House that’s deeply unfortunate. I think the right, um, if, if there’s no way to stop taxes the next best solution is to offset the Texas bias with you know, equivalent democratic gerrymanders elsewhere that give us national partisan fairness. Um, to note that I would not support Democrats over responding. So if taxes is able to flip three seats, let’s say, I certainly wouldn’t want California to flip nine seats from Republicans to, I’ve seen map in California that are 53 0 democratic Republican gerrymanders. So, I wouldn’t want that happen because that would introduce a skew in the opposite direction. And I think that the, you know, the guiding light should be, um, fairness, not, I want to

Stephen Richer: Point out one, just how this article was, because it was in 2022 and it was in Slate, and you said Blue State reformers should be wary of proposals, like the ones New York adopted in 2014. They amount to unilateral disarmament and end quote. And, and, and that seems to be something that the dams are really grappling with. Now, in particular, California is saying, oh shoot, we created this independent redistricting commission, and now if we want to play this tip for tat game, it might be a little challenging. But I actually want to ask a component, because on this show previously you’ve said that democracy, a court component of representative of your ability to have a say in the government is the vision that Nick’s talking about of Gerry of gerrymandering, where you have just across the country a Yeah, fair us house split. Is that consistent with what you’ve, your theories of democracy?

Archon Fung: No. Or at least not completely. Right? So I think we’ve got kind of three offers on the table. There’s the current Roberts Supreme Court jurisprudence, which says partisan gerrymandering. You know, that’s just the game that political parties and the Democrats and the Republicans play in legislature. So just love and war do that in the legislatures and do draw whatever lines you want. Okay? So that’s position one. Position two, I think is Nick’s position, which is what we’re after is national level fairness. And you might, if, um, one side say the Republicans in Texas ger the maps, then the other side ought to jigger where it can in the service of national level fairness in the House of Representatives. But, um, one difficulty I had, Nick, with your position is that it’s unfair at the state level, right? What you’re privileging is a national political identity, but then if I’m a Democrat in Texas or a Republican in California with these maps, then the maps reduce my voice and my opportunity to elect a candidate of my choice at the state level. And so that’s the problem that I have, which is only a partial problem. ’cause I think right now the national identities, especially when, you know, Governor Newsom is complaining about federalizing, the National Guard and national policy, as we talked about episode one, right? The national identity is, is really big right now compared to many state level identities. So that tilts me toward Nick, but very reluctantly.

Nicholas Stephanopoulos: So this is not plan a so it was a, as a lawyer, I was, he heavily involved in partisan gerrymandering lawsuits at the delegation level. And so if the Supreme Court had recognized partisan gerrymandering as a constitutional violation we would then have the possibility of a plan, a outcome where you get fair non gerrymandered maps everywhere aggregating into a national chamber. That’s also fair. Congress could also have done this. I was also involved with congressional legislation in 20 21, 20 22. There was a bill that came fairly close to passing and couldn’t rate the Senate filibuster but became barely close to passing. They would’ve just imposed a partisan bias ceiling on the district maps of every single state. And so that would’ve been another way to get to the same, um, outcome of fair state level maps adding up to a fair national chamber.

Nicholas Stephanopoulos: That the world we’re in though is, you know, a second or third or fourth best world where we can’t stop state level gerrymandering. And so if we’re stuck in that world, my point is that offsetting gerrymanders are better than non-offsetting gerrymanders. We don’t end up with gerrymanders in all the red states and fair maps in all the blue states giving us skewed representation, skewed policy in Washington that doesn’t reflect what the voters of America actually want from, from the house. Um, one of other little things I’d say is just that, um, all of this only applies to congressional maps. Um, I obviously don’t believe in Blue State countermanding when a Texas gerrymanders its State House map or its state senate map. Um, because the Texas State House or state Senate map is limited to Texas, it doesn’t involve voters in other states. And so I certainly wouldn’t support California, for example getting rid of its fair State House and state Senate maps just because Texas or Florida or somebody else is unfair.

Stephen Richer: I just keep coming back to this notion that the only thing that’s being objected to is the fact that it’s happened in, in 2025, because I looked up Illinois rating by the Princeton Gerrymandering Study Group or something, and they got an F and I remember when in 2022, they drew my buddy Adam Kinzinger out of a C because they made it very, very dem. And that bothered me in a bunch of ways, not least of which was just sort of the notion that it’s all about Dems versus Republicans. It’s not about individual personalities and how much they’re representing their district. But I also sort of wonder if Texas had just drawn this map in 2021 for the 2022 elections, if we would be having these conversations, if people would be mad at Texas, or if they, we would’ve just said, you know, Illinois did it, Texas did it. Um, you know, maybe it’s a little less fair in terms of representing the overall partisan balance according to some Nicks calculations. But like, this is, this is pretty normal politics.

Nicholas Stephanopoulos: I mean, people have short memories right there, there was tons of outrage and, and justified outrage over Illinois’s gerrymandered in 2021. And, and also in 2011, like Illinois has been horrendously gerrymandered in Democrats favor for the last two decades, and there’s also lots of outrage in 2011 over Florida’s pro-Republican Gerry over Georgia’s Republican gerrymander. You know, I feel the, the political conversation moves on. But for those of us who, who studied redistricting, um, you know, I was highly aware of and highly outraged by the gerrymanders back in 2011. Um, but again, when it comes to congressional maps what I think is more important than any given state’s skew is what’s happening at the aggregate level. And so it was clear in, in 2021 that we were going to end up with a relatively balanced house maybe with a very modest Republican advantage. Um, and so that I think was apparent then and quite good, and so for me now with Texas, there’s the dual base use for outrage. One is the mid-decade aspect of it. The other is just that it’s <inaudible>, you know, un undoing what has happened to be very fair us house, right?

Archon Fung: You know, um, in terms of how to get to a better place just by way of transparency, you know, historically the Ash Center, people at the Ash Center have really liked independent redistricting commissions. And in particular, back in 20 17, 20 18, we gave an award to California, to the California Citizens Redistricting Commission because we thought that was such a good citizen participation in independent voice. And if Sarah could show the picture, here’s a picture from that award ceremony that’s me on the left looking at Arnold Schwarzenegger, who was a very outspoken champion of the California Citizen Redistricting Commission. Right? And so I’m just saying that because for me, still the first best is that we have 50 different citizens independent redistrict commissions all across the United States. And maybe a second best would be Nick’s  , gerrymandering and counter gerrymandering toward national level fairness. But now, like you say, we’re in this third or fourth best, so how do we, um, counter gerrymander without while, while still maintaining that path to the first best? Whereas if you follow the advice I think of Kathy Hochuls seems like we’re in a race to the bottom where everybody is just maximizing their partisan share.

Stephen Richer: I want to point out that Schwarzenegger has said in recent days that two wrongs or his spokesperson said, two wrongs, don’t make a right. You don’t solve problems to democracy by doing more damage to democracy. So it sounds like Governor Schwarzenegger would not support a California plan to do away with the individual independent redistricting commission for the next three elections.

Nicholas Stephanopoulos: Yeah, and I think Fort Nager is voicing a common progressive view which I think is just wrong in its focus on components of the US House instead of the entire US House.  You know, I am a huge fan of independent commissions. Um, the, the first thing I published as the law student was about, um, voter initiatives to establish independent redistricting commissions. And, um, I, I held draft the congressional bill that would’ve in addition to imposing partisan bias ceilings under district maps, um, would’ve mandated the use of independent commissions by every state to draw their congressional maps. Um, so I think this concept, though of national partisan fairness is, is a very useful guide both for the short term and the long term. So at the moment, with Republican <inaudible> Control of Washington and with the hostile Supreme Court, the only route to national partisan fairness is offsetting Blue State gerrymandering.

Nicholas Stephanopoulos: But in a different future, you know, in a future where there’s um, a Supreme Court majority that cares about democracy and wants to intervene to safeguard democracy, there’d be a judicial route to national partisan fairness. And at this point, the Democratic Party is basically sold on the idea of congressional reform to curb gerrymandering. And so, I think the next time that there is a reasonable democratic majority in Washington and a Democratic president, um, national anti-gerrymandering reform will be at the very, very top of the agenda. And one of the things that that reform would do is achieve via legislation national parties and fairness. And so, I think there’s a perfectly consistent theory that says blue state’s now, but in the future, blue States shouldn’t congress to solve the problem. Then offsetting gerrymanders wouldn’t be the right to get national partisan in fairness.

Stephen Richer: Yeah, go ahead, Archon.

Archon Fung: As a smally Democrat at the state level, I’ve always thought of the problem of gerrymandering. It’s a slogan in the districting world that, um, the people should pick the politicians and not the other way around. And so I’ve often thought of it as a problem of popular and constituent interest versus narrow politician interests. And a great example is Elisa Stefanik was very upset about the Democratic redistricting in New York state. And so somebody asked her, well, what would you favor Fair District about that? But what I do know is that as the citizen of New York State, I am completely outraged, which I kind of get it right. And so my understanding, and we should track this down ’cause it’s early days yet about how California would actually work, is that Governor Newsom would ask the legislature to propose a ballot measure that everyone would vote on to allow the legislature to redistrict in between the dec the decennial maps of the Citizen redistricting commission. And I kind of like that as an in the weeds mechanism. ’cause it leaves this difficult choice of do we want an independent redistricting commission or do we want counter Jerry. And so I kind like that as a check. I do not like the governor or the legislature alone drawing the maps. I think that that’s a bad path for many reasons.

Stephen Richer: Final question for you guys. Well, one a friend of mine, Walter Olson at the Cato Institute recommended calling this the Texas Jigsaw Massacre, <laugh> the New Map, which I thought was pretty good. Um, so Texas Jigsaw Massacre, we should make that happen. Two social media is terrible and happily, most of my social media at the time these days, looking at sports clips or clips of cats, but I did happen to see that online. A lot of people are saying this is rigging elections. And that term, of course, makes my skin crawl. Just with the history I’ve had on this short answer, is this rigging an election? What the Republicans in Texas

Nicholas Stephanopoulos: Are doing, yes or no? I like to think of it in terms of skewing the outcomes of democracy, and so what, what I care most about in democracy is system level output. What is the collective rep representation like for the people?  What are the policies that are actually being adapted?  And so I think the, in my mind, the central flaw of gerrymandering Central Evil with it is that it distorts representation. It distorts policy. It gives us outcomes we don’t actually want I don’t like the terminology of rigging elections because that suggests other kinds of chicanery that we’re not dealing with when it comes to gerrymandering, but we’re dealing with maybe the most powerful distortive force in modern American politics. So it’s, you know, it’s plenty bad even if we don’t use the rhetoric of rigging elections to talk, talk on the same page.

Archon Fung: So we’re about out of time and as promised, we never talk for more than 30 minutes, and we’re about at that limit. Please send suggestions for this show or future episodes to info at ash dot Harvard edu. Nick, thanks a huge ton for joining us.

Stephen Richer: Thanks, Nick. Really appreciate it.

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