Redistricting

The problem

The Constitution apportions House seats after each census, but it says nothing about when — or how often — the lines inside each state may be drawn. For most of modern history a norm filled the gap: draw once after the census, then live with the map for a decade. That norm is dead. In 2025 and 2026, ten states redrew their congressional districts mid-decade — the largest such wave in modern American history.¹ Each party redrew where it held the power to do so, each citing the other’s maps as its justification, and the redraws multiplied on both sides. The exchange netted roughly fourteen additional seats for one party and six for the other, and dissolved fourteen competitive districts along the way.²

None of this is illegal, and no ordinary law can durably make it so. In LULAC v. Perry (2006), the Supreme Court held that “neither the Constitution nor Congress” prohibits mid-decade redistricting;³ in Rucho v. Common Cause (2019), it held that partisan-gerrymandering claims are “beyond the reach of the federal courts” entirely.⁴ Statutes and ballot initiatives have fared no better: one state’s statutory ban was legislated around by the same legislature it bound,⁵ Missouri voters repealed their own 2018 districting reform two years after passing it,⁶ and California voters suspended their own independent commission — the national model — to answer another state’s redraw.¹ Rules that politicians can amend, politicians eventually do amend. Only constitutional text binds both parties at once — and by the Court’s own account, the prohibition does not exist until an amendment writes it.

The principle

Three parts, each doing a specific job:

A statement of who comes first. Section 1 declares the ordering principle: the people’s right to choose their representatives comes before any representative’s power to choose their voters. It tells courts how to read the rest — districts exist to serve equal suffrage, not incumbent or party advantage — without creating a freestanding lawsuit. The enforcement load is carried by the timing rule that follows.

One map per census. Districts, congressional and state-legislative, are established once after each decennial census and cannot be altered until the next one — unless a court orders a redraw to remedy a violation of the federal or state constitution or laws. This design answers the objection that ended judicial policing of gerrymandering: Rucho found no “judicially manageable standards” for deciding when a map is too partisan,⁴ but a calendar rule needs none — a court asks only whether this is the first map since the census. The language follows text that already works: Colorado’s supreme court enforced the same “following each census” formula to void a mid-decade redraw in 2003,⁷ and New York’s constitution carries the court-order exception.⁵ Two details are deliberate. The rule mandates the decennial redraw rather than merely capping redraws, so it can never harden into a permanent map — India froze its district apportionment in 1976⁸ and is still living with the resulting malapportionment fifty years on.⁹ And only an adjudicated violation reopens a map, so the exception runs through a court finding an actual violation — not through settlements engineered to reopen a map early.

Everyone’s maps expire together. The article applies beginning with the first census after ratification. Every mid-decade map now in force — both parties’ — expires at the same moment, and the rule binds everyone equally from that point forward. This is the disarmament design: voiding today’s maps immediately would all but ensure one party fights ratification to the end, and freezing them in place for a decade would all but ensure the other does. Prospective application costs a few years of patience, and it lets each party accept the rule before knowing which side it will next constrain.

The draft text

Why it can pass

The principle commands one of the broadest consensuses we have measured: only 9% of Americans say states should be allowed to draw districts that intentionally favor one party (Economist/YouGov, 2025).¹⁰ A nationwide ban on gerrymandering and mid-decade redistricting drew two-thirds support, including majorities of Republicans and independents, in a September 2025 survey — a poll commissioned by an advocacy organization (Common Cause, 2025).¹¹ It has since been independently replicated with party breakdowns: asked about states redrawing districts outside the census cycle for partisan advantage, with both Texas and California named, Americans opposed it 71–28, with majorities in both parties:¹²

The same survey caught the arms race in motion: between September and November 2025 — before and after California’s counter-map — Republican opposition rose eight points and Democratic opposition fell seven.¹²

The complication, however, is that the consensus is principled, not situational. In the same polling year, 66% of Republicans approved their party’s Texas mid-decade map,¹⁰ and 63% of California Democrats approved their party’s own mid-decade map (Economist/YouGov, 2025; Politico/UC Berkeley Citrin Center, 2025).¹³ That pattern is not evidence against reform — it is the signature of an arms race, in which each party’s voters oppose the weapon in principle and demand it whenever the other side fires first. It is also the argument for doing this by amendment: no state and no party can disarm alone, and a constitutional rule is the one mechanism by which both parties give up the weapon simultaneously, everywhere.

The evidence that the principle wins when both sides disarm at once:

• Wide margins at the ballot box. When districting rules are put to voters as constitutional text, they pass in states of every political color: 71% in Colorado (2018),¹⁴ 75% in Ohio (May 2018),¹⁵ 66% in Virginia (2020), 63% in Florida (2010), 62% in Missouri (2018),¹⁶ 61% in Michigan (2018),¹⁷ 56% in Arizona (2000).
• Both parties have already written this rule. In 2025, a Democratic representative from Texas¹⁸ and a Republican representative from California introduced substantively identical mid-decade redistricting bans within weeks of each other — each provoked by the other party’s map.¹⁹ The demand exists on both sides; it has simply never existed on both sides of the same map. A prospective constitutional rule is what changes that.
• Every peer democracy has already done it. The United Kingdom since 1944, Canada since 1964,²⁰ New Zealand since 1887²¹ — with Australia,²² Germany,²³ and Mexico²⁴ alongside — draw boundaries on fixed schedules, with no partisan mid-cycle redraws. In none of them has a governing party seriously tried to repeal the rule.

If it passes: the law today and the day after

What changes, and when. (How ratified amendments interact with existing law in general is covered in After ratification.)

Federal law today

No federal statute says when a state may redraw its districts, and the Supreme Court has held that neither the Constitution nor Congress prohibits mid-decade redistricting.³ Federal rules address other things: congressional districts must be as equal in population as practicable,²⁵ states with more than one seat must use single-member districts,²⁶ and no map may abridge the vote on account of race under Section 2 of the Voting Rights Act.²⁷ Congress may “at any time by law make or alter” state regulations of congressional elections,²⁸ but some seventy mid-decade bills since the mid-2000s have not passed.²⁹

State law today

At least ten states explicitly prohibit mid-decade redistricting, though most reach only state legislative maps; six more bar it through court readings of constitutional text; a few, including Ohio and Texas, expressly permit it; most say nothing.³⁰ New York’s constitution is the closest existing model: a plan “shall be in force until the effective date of a plan based upon the subsequent federal decennial census … unless modified pursuant to court order.”³¹ Ohio’s is the clearest conflict: a congressional map passed without bipartisan support is valid for only two elections and must then be replaced.³²

The day after

Nothing changes on the day of ratification. Section 3 applies the article to districts drawn from the 2030 census onward, so every map in force — including the 2025–26 mid-decade maps — stands until it is replaced after that census.² From then on Sections 2 and 3 are self-executing: no district altered other than as a court requires to remedy a violation “shall thereafter be given effect,” and state provisions that mandate or permit such redraws — Ohio’s two-election maps among them — become inoperative. Court-ordered redraws continue, under federal law or state constitutions; state courts have ordered them against maps drawn by each party.³³ The article has no enforcement clause and no “as provided by law” provision; Congress keeps its Elections Clause power over congressional districts, and two bills in the 119th Congress — one from a Democratic member from Texas, one from a Republican member from California — show what conforming legislation looks like: one redistricting per census unless a court requires another to comply with the Constitution or the Voting Rights Act.³⁴³⁵ Courts would settle what the text leaves open: whether a remedial order reopens only the defect or the whole map, and whether a settlement without an adjudicated violation qualifies.

What we left out

What we considered and set aside, and why:

• A fairness standard. A clause forbidding plans that “unduly favor or disfavor” a party would reverse Rucho directly — and it is where ratification opposition would concentrate. Just over half of Republicans call gerrymandering a “major problem” (AP-NORC, 2023),³⁶ the standard’s best-developed drafting comes from bills sponsored by one party alone, and “unduly” hands its definition to the same Court that declined to police it. It returns if survey work shows a symmetric fairness standard holding majorities in both parties.
• Mandatory independent commissions. The international norm, and the best-polling reform in the abstract: 82% support (NBC News, 2025),³⁷ including 57% of Republicans in earlier surveys (R Street/Campaign Legal Center, 2021).³⁸ But stated support is soft under partisan pressure — only 18% of Democrats would keep California’s commission if it cost their party seats (Politico/UC Berkeley Citrin Center, 2025),¹³ and Ohio voters rejected a commission amendment 54–46 in 2024 after the state’s Republican-controlled Ballot Board wrote the ballot language describing it as requiring gerrymandering, on a party-line vote.³⁹ Held back until polling tests a narrower “who may not draw the maps” rule that avoids dictating each state’s machinery.
• Voiding the current mid-decade maps immediately. Symmetric on paper — roughly fourteen seats one way, six the other² — but asymmetric in practice, and nearly certain to make one party fight ratification to the end. Prospective application is the price of a two-party coalition, and we chose to pay it.
• Details that belong in statute: commission design and tie-breakers, quantitative fairness metrics and thresholds, transparency and public-hearing requirements, litigation procedures, and census methodology.

← All amendments