In the 2018 midterm elections, Badger State Republicans lost every race for statewide office, but still carried the legislature in a landslide, winning 63 of 99 seats in the State Assembly and 11 of 17 seats in the State Senate. This was not the first time Republicans had won large statehouse majorities without winning the popular vote. A heavily gerrymandered electoral map, passed by a Republican legislature and enacted by a Republican governor in 2011, ensured the G.O.P. remained in power and turned the purple state’s legislature red. In a lawsuit that later reached the Supreme Court as Gill v. Whitford, Democratic voters claimed that the state’s electoral map was an unconstitutional partisan gerrymander which violated the doctrine of “one person, one vote” and the Equal Protection Clause. Just four months before the 2018 midterms, however, the Supreme Court issued a narrow ruling that sidestepped the issue and left the Republican-leaning map in place. Similar dramas have unfolded across the nation; over a dozen states currently face redistricting litigation.
Allowing politicians to choose their voters degrades competitive elections, empowers the ideological fringes, and impedes political organizing for anyone who is not a member of the dominant party. Essentially, gerrymandering undermines our democracy. In the absence of a Supreme Court ruling to mitigate against partisan gerrymandering, what recourse do Wisconsin voters have? More broadly, what recourse is available for voters facing this issue across the nation?
Independent redistricting commissions (IRCs) have proven an effective non-judicial remedy for the ill effects of partisan gerrymandering. As they have become increasingly popular, a large variety of commissions have emerged, each comprising a unique set of policies and mechanisms. Research indicates that, when it comes to IRCs, institutional design matters a lot. With the 2020 Census — and a new opportunity for redistricting — fast approaching, it is essential that legislatures move to adopt the right kinds of IRCs in order to ensure a fair, democratic redistricting process.
Modeling the IRC
Independent redistricting commissions take the redistricting process out of legislatures’ hands in order to eliminate the conflict of interest that results from having elected officials choose their own voters. Nearly one-half of states employ an IRC of some form to draw their congressional maps. Each IRC has a unique set of features that enhance or diminish its effectiveness in mitigating against partisan gerrymandering.
To measure IRCs’ effectiveness, it is useful to categorize them along a couple of dimensions: whether they are bipartisan or nonpartisan and majority-rule or supermajority-rule. Consider Pennsylvania, California, and Iowa: three different states with three distinct types of commissions. Pennsylvania’s redistricting commission typifies the bipartisan, majority-rule variety. A five-member committee comprised of two Democrats, two Republicans, and one agreed-upon chair oversees the redistricting process. For a legislative map to go into effect, three of the five apportionment committee members must approve of it.
California, by contrast, has a nonpartisan independent commission that requires a supermajority of its members to support a redistricting plan. All registered voters are eligible to apply for a panel of sixty individuals that is equal parts voters registered with the largest political party in the state, voters registered with the second largest political party in the state, and voters unaffiliated with either of those two parties. Eventually, the committee is whittled down to five Democrats, five Republicans, and four unaffiliated voters. At least three individuals from each group must consent to a map before it is enacted.
Iowa’s commission combines institutional elements of the two previous IRCs. A committee of nonpartisan staff creates districts using only population data from the Census Bureau—they are prohibited from looking at election returns when drawing a map. An advisory committee composed of two Republicans, two Democrats, and an agreed-upon chair assists the commission in creating district lines. Once the committee proposes a map, a majority of the Iowa legislature must vote to pass it.
Which IRCs Work Best
A report by the Brennan Center for Justice finds that among the three states mentioned, IRCs like California’s do the best job of weeding out partisan bias and creating a map responsive to voters’ preferences. While bipartisan commissions may mitigate against partisan gerrymandering, they often lead to maps that protect incumbents and allow little room for shifting voter preferences. In effect, these commissions may lock in a division between the two parties that, while fairly representative of voters’ ideological distribution statewide, cannot swing much one way or the other if that distribution changes.
While nonpartisan commissions remain popular, a bipartisan group of legal scholars have a creative proposal bipartisan calling for redistricting commissions that function much like juries, in which a number of ordinary citizens from a cross-section of society volunteer or are chosen to serve on a committee that oversees the redistricting process. The idea behind this scheme is to choose fairly apathetic voters and even non-voters — individuals with little vested interest in electoral outcomes — who lack an incentive to create partisan districts. While never tried in practice, this sort of IRC is promising in light of the benefits of non-partisan, supermajority-rule commissions. A unanimous decision would be required from these juries to put an electoral map into effect.
Momentum for Redistricting Reform
For a number of years now the energy around redistricting reform has been growing. Groups on the left have been especially vocal about partisan gerrymandering. In response to the activities of REDMAP, the Republican group that won numerous statehouses in the 2010 elections and engineered partisan gerrymandering in the wake of the 2010 Census, Democrats established the National Democratic Redistricting Committee in 2016. Chaired by former Attorney General Eric Holder, the NDRC aims to bring an end to partisan gerrymandering with a four-pronged approach involving litigation, mobilization, reform, and elections.
While redistricting reform is typically associated with the left, prominent Republicans have also come out in support of a fairer redistricting process. John McCain, John Kasich, Bob Dole, Alan Simpson, and Arnold Schwarzenegger, are among the conservative politicians who urged the Supreme Court to take action against partisan gerrymandering in Gill v. Whitford.
The 2018 midterm elections made it clear that electoral reform in the redistricting process is a top priority for many voters. Americans of every political persuasion approved ballot initiatives in Colorado, Michigan, Missouri, and Utah to set up nonpartisan, citizen-based IRCs.
Now, with the 2020 Census and the next bout of redistricting fast approaching, it is crucial that more states see the value in IRCs to ensure a fair and democratic electoral process. States should look to the California model of non-partisan, supermajority-rule independent commissions, as well as its creative iterations, to prevent partisan gerrymanders and give power back to the voters. The stakes are high: if states do not act, we can only expect more electoral outcomes like the disproportionate Republican victory in Wisconsin. Democracy requires that voters choose their politicians — not the other way around.
Image Source: Flickr/Ryan Johnson