The future of gerrymandering after the 2010 census
When Sen. Judd Gregg (R-N.H.) withdrew his nomination for commerce secretary in February, Republicans blamed the debacle on the White House’s alleged attempt to usurp control of the 2010 census, which rests with the Commerce Department. This short-lived controversy reminded us that while the census might be one of the least visible, it is also one of the weightiest of the government’s constitutional obligations. The census has historically suffered from inaccuracies when counting minorities and marginalized groups like the homeless, but apprehension over the heavily partisan redistricting process, often dubbed gerrymandering, equals or exceeds concerns over the accuracy of the census itself. Gerrymandering artificially restricts the choice of voters by drawing district lines such that the district’s composition more or less dictates the outcome of every election. Reforming the redistricting process by giving independent commissions the authority to draw district lines, as a handful of states have already done, counters state legislatures’ incentive to gerrymander for partisan gain and increases the competitiveness of elections, though the commissions themselves are also fraught with challenges.
The Texas Game-Changer
In 2003, the Texas legislature attempted a particularly controversial innovation by redistricting for the second time after the 2000 census, meaning it undertook a redistricting of choice. Because the Republicans had won control of the Texas state legislature in 2002, state Democrats objected to the plan as a blatantly political move to break up safe Democratic congressional districts. The 2003 redistricting effort became notorious for the bitter political struggle that ensued, as the Democratic legislators fled the state to prevent the Republicans from achieving a quorum and the Republicans responded by sending Texas state troopers to retrieve them.
In a 2006 decision, the Supreme Court held that the Constitution does not prohibit states from redrawing their electoral boundaries multiple times, so Texas’ double-dip redistricting was permissible. This decision caused legal scholars like Michael Kang, a law professor at Emory University, to question if the “courts had abrogated their responsibility to provide an effective check on gerrymandering.” State legislatures do not have unfettered discretion in redistricting after each census, but improvements in technology have allowed state legislatures to bypass many of the remaining court-imposed standards.
Among the remaining constraints on state legislatures is the “one person, one vote” rule for congressional and state-level redistricting. One person, one vote requires that each person be afforded an equally weighted vote; prior to landmark Supreme Court decisions in the 1960s, rural districts in many states contained far fewer people than urban districts, making rural votes more powerful than urban ones. The Voting Rights Act of 1965 also serves as a powerful constraint on state legislatures, mandating that sizeable minority groups be able to effectively elect a candidate of their choice. The law also bars states from reducing the representation of minorities, and so all state redistricting plans affecting sizeable minority populations have to be approved by the Department of Justice or the D.C. Circuit Court of Appeals. Paradoxically, however, these limitations on state legislatures may contribute to the problem of gerrymandering; the same technology that enables states to keep districts nearly equal in population and to comply with the Voting Rights Act also enables them to draw districts to the partisan liking of the party in control of the state legislature.
Independent Commission Reform
In 36 states the state legislature still has primary responsibility for redistricting, but the success of independent commissions in some states has led others to reevaluate their own procedures. In 2001, Iowa became the first state to adopt a nonpartisan commission model, eliminating the use of any political criteria when drawing districts. Robert Ritchie, the director of FairVote, a nonprofit dedicated to reforming the current electoral system, told the HPR “having a criteria-driven process gives less discretion to the line-drawers.” Ritchie praised Iowa’s “clear and measurable criteria that specifically forbid the use of political affiliation, previous election results, or any demographic information other than population.”
On the other hand, Gerry Hebert, executive director of the Campaign Legal Center, a nonprofit specializing in campaign finance and election law, believes Iowa is an exception to the rule that political considerations cannot be successfully removed from the redistricting process. “Iowa’s model of nonpartisan commissions cannot be successfully applied to other states because Iowa is uniquely balanced in terms of partisanship and lacks major urban centers,” Hebert told the HPR. Iowa also lacks sizeable minority populations, which would trigger application of the Voting Rights Act to redistricting plans. For these reasons, a bipartisan rather than nonpartisan commission may be the best option for most states; bipartisan commissions keep political considerations in play while evening out any disparities in power between the two parties.
The Arizona Case: Bipartisan Commissions
When bipartisan commissions are set up, they labor under the obligation to treat the two parties fairly in the parties’ own eyes, or else the whole process becomes entangled in legal disputes and partisan bitterness, the very outcome that commissions are meant to avoid. The experiences of Arizona’s Independent Redistricting Commission lay bare the pitfalls to which the redistricting process is susceptible, even when a bipartisan commission strives to balance political considerations and competitiveness. Steven Lynn, the chairman of that commission, told the HPR, “there was a legal challenge almost every decade when the state legislature was responsible for redistricting and so the electoral map has been ultimately drawn by the courts.” But, five years later and after 26 public hearings about the commission’s proposed electoral map, the redistricting plan is still tied up in court due to the “imperfect tools available to measure the competitiveness of the district,” Lynn explained.
Nevertheless, bipartisan commissions have been the most successful over the past decade in increasing electoral competitiveness. They are by no means, however, a panacea. Incorporating political considerations into the redistricting process while removing the state legislatures’ incentive to maximize partisan advantage will not protect states from legal disputes, but it may prevent more serious partisan conflagrations, like the one that roiled Texas in 2003.