In democracies, voters are supposed to choose their legislative representatives. Increasingly, however, U.S. courts have found that representatives choose their voters through partisan gerrymandering of legislative and congressional districts.
With the U.S. Supreme Court poised to rule on one case of alleged gerrymandering and hearings scheduled on two others, public activists in a number of states want to take redistricting powers away from the legislatures and turn them over to independent commissions. Thirteen states currently use such commissions to draw legislative districts; seven states also use them for congressional districts.
Since the start of 2017, bills to establish commissions have been introduced in 30 state legislatures. Most of these measures have not advanced, however, prompting citizen groups to turn to initiatives.
In Michigan, a group called Voters Not Politicians has collected sufficient signatures to put an initiative on the 2018 ballot. Signature-gatherers came up short in South Dakota, the secretary of state ruled this month. A continuing signature-gathering effort is under way in Colorado, Missouri, Oregon and Utah.
In a related development, Ohioans will vote May 8 on a bipartisan measure approved by the Legislature that supporters say will establish fairer standards for redistricting.
These actions are a backdrop for a bigger battle that will occur after the 2020 census when states will redraw legislative and congressional districts. Such redistricting can lead to changes in partisan control in the states and presage national political change.
When President Barack Obama entered the White House in 2009, Democrats controlled nearly 60 percent of state legislatures. Beginning in the 2010 elections, Republicans gained more than 900 seats and control of two-thirds of the legislatures during the remainder of Obama’s presidency, foreshadowing the election of President Donald Trump in 2016.
The Republican Party also won the House of Representatives in 2010 and has held it since, partly because of gerrymandering. The Brennan Center for Justice estimates that 16 Republican-held seats in the present House, in which the GOP holds a 24-seat majority, are the result of extreme gerrymandering.
The shape of future redistricting is shrouded in uncertainty after federal courts blocked congressional redistrictings in Maryland, legislative redistrictings in Virginia and Wisconsin, and both congressional and legislative redistrictings in North Carolina and Texas. Except for Maryland, these redistrictings were done by Republicans, who lost ground in New Jersey and Virginia legislative elections last year and subsequent special elections.
The combination of court setbacks and election losses has put Republicans on the defensive in many statehouses without making Democrats fully comfortable. Both sides realize that the staying power of federal court rulings depends ultimately on what the Supreme Court decides about partisan gerrymandering.
The uncertainty has contributed to the flurry of activity in statehouses over redistricting.
“Often when change takes place it’s because neither party knows what’s going to happen the next time around,” said Wendy Underhill, program director for elections and redistricting with the National Conference of State Legislatures.
The first shoe to drop on gerrymandering in the Supreme Court is expected to be Gill v. Whitford, which asserts that Republicans unfairly reapportioned the Wisconsin Assembly in 2011. In three subsequent elections in which they won a majority or near majority of the vote, Democrats have been unable to elect more than 39 of the 99 Assembly members.
A three-judge federal panel found the reapportionment discriminatory. Wisconsin appealed to the Supreme Court, which is expected to rule in June.
Democrats are the alleged culprits in a Maryland case, Benisek v. Lamone, in which they defeated a long-time Republican member of Congress by dumping Democratic voters into his district. The Supreme Court will hold oral arguments on March 28.
The court will hold oral arguments on April 24 on a Texas case, Abbott v. Perez, brought under the Voting Rights Act of 1965. Two lower courts found that the state discriminated against voters of color in drawing legislative and congressional boundaries. Texas has appealed.
In a Virginia case, Bethune-Hill v. Virginia State Board of Elections, the Supreme Court unanimously agreed that the state had erred in its interpretation of racial standards on legislative redistricting and sent the case back to the lower court for trial. The trial has concluded and both sides are awaiting the court’s decision.
North Carolina remains in redistricting’s version of legal limbo. A federal court found that both congressional and state legislative districts were unconstitutional racial gerrymanders and ordered new maps drawn by a special master. The Supreme Court stayed the court’s decision, which apparently means that existing boundaries favoring Republicans will be used for this year’s midterm elections.
But nothing in North Carolina is in stone; a new lawsuit filed this month challenges the boundaries of four legislative districts.
Some find it curious that the Supreme Court accepted appeals from Maryland, Texas and Wisconsin, but declined to examine the situation in North Carolina, where some Republicans acknowledge partisan discrimination.
During the drawing of congressional maps in the Tar Heel State, state Rep. David Lewis, R-Dunn, the architect of the redistricting, said, “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
In reporting the high court’s stay of the lower court order requiring redrawing of these maps, The New York Times said the “move was expected and not particularly telling” because whatever the Supreme Court decides in the Maryland and Wisconsin cases is “likely to effectively decide the North Carolina case, too.”
Nonetheless, Lewis’ candid statement opens a window to the world on the mindset of legislators who seek to preserve partisan advantage. That attitude probably explains why so many bills to create independent commissions die in committee or pass one house only to be killed by another.
States that have independent commissions find they generally work well. The latest evaluation of a commission’s work comes from California, where voters created the nonpartisan California Citizens Redistricting Commission, which draws both congressional and legislative boundaries. A new report from the Public Policy Institute of California found that “the CRC largely satisfied expectations that it would produce plans that are fair to each major party and that increase electoral competitiveness.”
Interestingly, however, this competitiveness has not produced partisan change. The Golden State is overwhelmingly Democratic, and the PPIC found that the districts drawn by the commission gave Democrats a greater advantage than districts drawn by the Legislature, slight for legislative districts and greater for congressional districts.
In addition to California, commissions in Arizona, Hawaii, Idaho, Montana, New Jersey and Washington draw both congressional and legislative lines. In Alaska, Arkansas, Colorado, Missouri, Ohio and Pennsylvania, commissions determine only legislative boundaries.
The word “gerrymander” famously derives from an 1812 decision by Massachusetts Gov. Elbridge Gerry, who approved a state Senate district shaped like a salamander that became known as a “Gerrymander.” (The word has a hard “G.”)
Oddly conformed districts drawn to favor one party or the other have been a staple of American politics ever since.
Racial gerrymandering has long been outlawed. Partisan gerrymandering is legal but may not withstand Gill, in which Justice Anthony Kennedy is believed to be the deciding vote on a closely divided Supreme Court. During oral arguments Kennedy peppered attorneys for Wisconsin, who are defending the Republican-drawn maps, with questions. He asked no questions of the Democrats, who want the maps redrawn.
Kennedy expressed skepticism from the bench about partisan gerrymandering as far back as 2004 when computer metrics to guarantee a fair-minded reapportionment did not exist. Now they do, says Indiana state Sen. Greg Walker, R-Columbus, who believes that legislatures, not commissions, should do redistricting, albeit with criteria that do not discriminate against any party.
The Supreme Court once allowed legislatures to redistrict as they saw fit, avoiding what Justice Felix Frankfurter called “the political thicket.” That changed in 1962 with Baker v. Carr in which the court, in the first of two historic decisions, ruled that legislative representation must be based on the principle of “one man, one vote” now known as “one person, one vote.”
Those decisions profoundly changed the American political system, most believe for the better. Outlawing partisan gerrymandering would also have an enormous effect, affecting at least a third of the nation’s legislative districts.
If the court so acts in Gill, voters rather than a political party would choose their representatives.
— Lou Cannon, a Summerland resident, is a longtime national political writer and acclaimed presidential biographer. His most recent book — co-authored with his son, Carl — is Reagan’s Disciple: George W. Bush’s Troubled Quest for a Presidential Legacy. Cannon also is an editorial adviser to State Net Capitol Journal, which published this column originally. Click here to read previous columns. The opinions expressed are his own.
