The Fight to End Gerrymandering

The Continuing Struggle to Reform the Legislative Redistricting Process

Oct 08, 2021

This is Civic Way’s sixth essay on state and local elections. In this piece, we scan some state-based efforts to reform the decennial redistricting process. In our last essay, we discussed partisan gerrymandering’s post-2010 weaponization. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience improving government agencies across the US.

Highlights:

Make no mistake, the partisan gerrymandering wars will have an enormous impact on our elections
Despite recent efforts to reform the redistricting processes in many states, most federal and state legislative district maps will be influenced by politicians and the fairness of our elections will suffer
The two principle reforms—redistricting commissions and criteria—while welcome, do not necessarily mitigate the risks of extreme partisan gerrymandering; it remains a stubborn stain on our democracy

The Gerrymandering Wars Escalate

If the salivating of politicians is any sign, 2021 is rapidly becoming the Year of the Gerrymander.

While the idiosyncrasies of state laws make it hard to classify state redistricting schemes, politicians still run the show in most states. State lawmakers directly or indirectly control the congressional redistricting process in at least 35 states and the state legislative redistricting in even more states.

It is estimated that over 75 percent of all US House districts are subject to some degree of partisan gerrymandering (some by Republicans, some by Democrats and some by both parties). For the six states with only one congressional district[1], redistricting is only required for state senate and house districts.

Independent commissions run legislative redistricting process in 15 states, but their degree of independence varies. In most of these states, politicians appoint the commission members. In some states, like Ohio, the process is run by partisan elected officials with little (if any) interest in competitive elections.

This year is much like 2011, but with even more at stake. As a result, the gerrymandering will likely be even more veiled and severe. The Census Bureau’s justifiably late release of census data gave politicians another excuse to gerrymander with as much haste and secrecy as possible. Alabama, Georgia, Indiana, Nebraska and Texas are just five examples of fast-track partisan gerrymandering.

Equal Opportunity Gerrymandering

Based on data from the National Conference on State Legislatures, it appears that 35 states directly empower their state legislatures to draw federal and/or state legislative districts. This includes 15 reliably red states[2], 11 reliably blue states[3] and nine swing states[4].

These states use a variety of models. In most states, the legislatures run the redistricting process. Six states have advisory commissions, but their legislatures must approve the redistricting maps (i.e., Maine, New Mexico, New York, Rhode Island, Utah and Vermont). Iowa uses the nonpartisan Legislative Services Agency to draw maps for legislative approval. Five states have back-up commissions (i.e., when the legislature fails to produce maps), of which three are dominated by one party (Mississippi, Oklahoma and Texas).

Both parties are riding the gerrymandering express this year. In New Jersey, despite Governor Murphy’s public opposition, the Democratic Senate President has led an effort to give gerrymandering constitutional cover. The plan would, among other things, give party leaders more redistricting committee appointees. Oregon Democrats are looking at splitting Portland’s districts for the purpose of maximizing Democratic districts.

New York, where Democrats fully control state government for the first time in a century, may offer national Democrats their best opportunity to offset GOP gerrymandering elsewhere. To do so, some state Democrats want to seize the bipartisan redistricting process approved by voters in 2014. A gerrymandered map engineered by Democrats could reduce the GOP-leaning districts from eight to four.

The GOP gerrymandering plans involve far more states (they control more legislatures). In Texas, an already-severely gerrymandered state, lawmakers hope to convert their population growth into two new GOP congressional seats. In Nebraska and Tennessee, legislators hope to further split Omaha and Nashville into more GOP seats. In Indiana, legislators want to make their one swing district into a GOP-leaning district.

The Rise of Redistricting Reforms

In response to the metastasizing of gerrymandering, many states have launched redistricting reforms in the last decade. Some well-intentioned, but most orchestrated or appropriated by politicians to preserve their influence on the redistricting process. The two major reform types are organizational and procedural.

Organizational reforms typically center on designating a distinct unit to take over the state legislature’s role in redistricting. Some have challenged the constitutionality of such reforms, but, in its 2015 Arizona Independent Redistricting Commission decision, the US Supreme Court affirmed the constitutionality of independent commissions for congressional redistricting. Their names and structures vary widely by state.

The other reform is procedural. This has usually involved imposing legal criteria for guiding the redistricting process. Common criteria include geographical contiguity, compactness, partisan neutrality, jurisdictional alignment and community of interest. Neutrality is about ignoring or minimizing partisan advantages. Jurisdictional alignment is about respecting existing borders (e.g., city or county lines). Community of interest is about grouping voters with shared political, social or economic interests.

Organizational and procedural reforms have been implemented in two ways: constitutional amendment or state legislation. Constitutional amendments usually result from referenda or ballot issues. Most states grant voters the power to place such matters on the ballot, but others, like North Carolina, require prior legislative approval to place referenda on the ballot. Most states have reformed their redistricting processes via referenda and constitutional amendments (e.g., California, Colorado and Michigan).

The Fools Gold of Redistricting Commissions

Redistricting commissions don’t always end or reduce gerrymandering. 15 states have assigned primary responsibility for redistricting to commissions. Most of these states have created bipartisan—but not necessarily apolitical—redistricting processes. Most also have enabled politicians to retain their influence on shaping the maps. Many have produced partisan plans or generated litigation (or at least controversy).

Three states—California, Colorado and Michigan—have taken aggressive steps to reduce partisan redistricting. Another ten states prohibit elected officials from serving on redistricting commissions, but allow them to appoint most members[5]. Even if bipartisan, a politician-led commission may create maps that protect incumbents and impede competition. Two states—Arkansas and Ohio—have redistricting commissions, but both are dominated by one party.

Ohio offers a cautionary tale. The state’s Republican leaders recently adopted state legislative maps designed to ensure veto-proof Republican control of state government. And they did so in blatant defiance of the voters. Since the last redistricting, Ohio voters overwhelmingly approved constitutional amendments to ban gerrymandering (i.e., the amendments require impartial state legislative maps that reflect average statewide voting preferences from the last ten years).

So what would impartial maps look like? Over the last ten years, Ohio Republicans won an average of 54 percent of statewide votes. To meet constitutional muster, the legislative maps should yield a comparable share of GOP-leaning seats. Instead, Ohio’s new redistricting commission, on a 5-2 party line vote, approved state legislative maps yielding 70 percent GOP-leaning state Senate seats and 62 percent GOP-leaning state House seats.

The commission’s tortured rationale? That, since the GOP won 81 percent of recent statewide elections (ignoring the average margin of victory), up to 81 percent of the new legislative districts could lean GOP. In Democratic states like California and New York, this twisted logic would rationalize maps with 100 percent of the seats favoring Democrats. Is this really what we want for the future of our elections?

The Abuse of Redistricting Criteria

Several states have adopted formal criteria for guiding redistricting and minimizing partisan gerrymandering. This seems like reasonable policy, but it does not necessarily prevent gerrymandering.

Why? First, criteria may conflict and, in lieu of an effective reconciliation mechanism, create an opening for politicians to gerrymander districts while still invoking the criteria. For instance, in states using communities of interest as a criterion—especially those that make it their top priority—politicians can create districts that largely ignore other criteria, including partisan fairness and compactness (e.g., Illinois’ 4th congressional district).

Community of interest is, in and of itself, a valid criterion and a worthy goal. However, it may be used by some as a Trojan Horse for gerrymandering. By allowing politicians to define communities of interest to their liking, and elevating its importance (even to the exclusion of such criteria as compactness, neutrality and competitiveness) it could give politicians the latitude to attain partisan aims.

Second, state lawmakers may ignore or manipulate the criteria to preserve their political power. Florida, with 27 US Representatives (28 after 2020) and 160 state legislators, is one example. In 2010, Floridians overwhelmingly approved the Fair Districts Amendments to prevent legislators from drawing partisan maps. As a result, Florida’s Constitution requires all legislative districts to be contiguous, compact, jurisdictionally aligned and politically neutral (impartial). It looked like the dawn of a new era in Florida.

Regrettably, gerrymandering had the resilience of a cockroach. In 2011, the GOP-led Florida Legislature ignored the new constitutional requirements and enacted heavily gerrymandered maps. The gerrymandered maps held for two election cycles until state courts invalidated them. From 2014 through 2020, the state used less overtly partisan maps drafted by the courts. Despite the GOP’s ability to retain strong legislative majorities, the state legislature has continued to challenge or ignore the state constitution.

On August 6, 2021, the Orlando Sentinel editorialized, “The Legislature has become even more brazen in its disregard for voter-approved constitutional amendments it doesn’t like.” This kind of political obstinance is by no means limited to Florida.

The lesson is clear: gerrymandering won’t be easy to kill.

Civic Way