Democracy Agenda: Redistricting

Election officials often use redistricting to stack the deck in favor of one party or another. The Democracy Agenda has several concrete proposals the next president and Congress can take make the system more fair and independent.

February 4, 2016

Since the country’s beginning, redistricting has offered ample opportunity for manipulation and self-dealing. In fact, in the nation’s very first congressional election, James Madison himself had to run in a district drawn by his opponents. The word “gerrymander” was coined in 1812 to mock a congressional district, signed into law by Massachusetts Gov. Elbridge Gerry, that resembled a salamander. In the mid-20th century, courts intervened to require equalized districts. But in recent years, once again, the problem has gotten worse.

At present, district lines across the country are redrawn once a decade. The goal is to equalize the population of districts and ensure Congress and state legislatures fairly and accurately represent the people.

In 39 states, the primary responsibility for drawing legislative district lines rests with partisan elected officials. Given the sorting of the electorate — like-minded religious, ethnic, and social groups tend to cluster together, with minorities crammed into cities due to decades of discriminatory public policy and “white flight” to the suburbs — it is hard to craft perfectly competitive districts.

But today’s system has two distinct problems. First, with technology making it possible to draw maps with highly accurate micro precision, the result is a political system where most electoral battles are fought in low-turnout primaries and elected officials more and more cater to the partisan extremes that dominate those contests. It’s no wonder that ordinary voters are left increasingly feeling that their votes — and voices — do not matter. Second, there is an overlapping challenge of ensuring that district lines do not disfavor minorities — the very communities shut out from power for too long.

Thus far the U.S. Supreme Court has stepped back from challenging partisan gerrymanders. In the “one person, one vote” cases of the 1960s such as Baker v. Carr and Reynolds v. Sims, the Court ruled that legislative districts must be roughly equal in size. Since then, though, the justices have declined to strike down even the most egregious partisan gerrymanders. (A prime example: the mid-decade Texas redistricting, admittedly done solely to benefit the Republican Party.) The justices do not condone the phenomenon, decrying “the incompatibility of severe partisan gerrymanders with democratic principles.”[1] But they found it to hard to agree on standards to do anything about it.

Now, after years of such diffidence, the Court unexpectedly heard a case, Evenwel v. Abbott, that could lead to even more distorted districting. From the country’s beginning, the overwhelming number of districts have been drawn based on total population. In Evenwel, a conservative legal group demanded that only eligible voters be counted — which would make every state legislative map in the country presumptively unconstitutional. The justices heard the case in December 2015, and a ruling can come by the end of June.

Both political parties gerrymander with glee when they can. In the past Democrats gained most. Then there was a standoff, with incumbents of both parties engaged in a mutually advantageous incumbents’ cartel. In recent years, especially after 2010, Republicans have used gerrymandering to their advantage. With political parties growing increasingly brazen as they grapple for advantage, and redistricting issues increasingly in the courts, it’s critical for states or Congress to move toward transparent and independent redistricting processes that ensure all Americans are fairly represented.

End Partisan Gerrymandering

American voters dislike gerrymandering, sensing as President Obama said that “the practice of drawing … districts so that politicians can pick their voters and not the other way around” is fundamentally unfair.

Gerrymandering leads to unfairly skewed electoral outcomes, with statewide vote distribution increasingly misaligned with election outcomes. In 2012, for example, Republicans won roughly 75 percent of congressional districts in Ohio and Pennsylvania despite President Obama winning a majority of the vote in both states. In other states, such as Illinois, gerrymandering favored Democrats. Voters there elected a Republican governor in 2014, but Democrats easily won the bulk of the states’ congressional seats.[2][3]

Gerrymandering has two other less visible harmful effects. It can help dampen electoral competition. Over the past two decades, the number of swing districts plummeted from 103 in 1992 to just 35 in 2012 — a broader trend beyond redistricting, but worsened by self-dealing.[4] And it can prevent new leaders from emerging. In California, bipartisan gerrymandering to protect incumbents proved so effective that from 1998 to 2008, only one incumbent lost out of 459 legislative and congressional elections.[5]

Although the next redistricting cycle is four years away, there are already signs that the process could be more partisan and rancorous than ever. Democratic and Republican groups plan to pour hundreds of millions of dollars into state races to gain the upper hand in mapdrawing.[6] Something must be done to stop it this cycle.

Proposal

The good news is there are now models of successful reform.

One approach, implemented in states including Arizona and California, takes power to draw districts away from legislators and puts it in the hands of an independent citizen commission. Such commissions appear to have increased partisan competition, while improving the fit between legislative outcomes and the desires of voters.[7] Another approach, used in Florida, still allows the legislature to draw maps, but puts in place strong, objective rules on how districts are drawn. Still other states have adopted a middle ground. In 2015, for example, Ohio voters approved a constitutional amendment that toughened rules governing redistricting. The new approach gave the minority party a greater role, and ensured that a plan not agreed to by both parties would be only temporary.

In the past, some worried that the vital goal of ensuring adequate minority representation in legislatures was at odds with the goal of ensuring greater electoral competition. Even if that was once true, it is no longer the case. The system of partisan gerrymandering has become so extreme that it threatens all the values central to democracy. The California redistricting commission, for example, is credited with improving representation and competitiveness without compromising the goals of minority empowerment.

Why This Can Be Achieved

Citizens have come to understand how the current system helps lead to dysfunctional government. A 2013 poll found that 7 in 10 Americans believed that “those who stand to benefit from redrawing congressional districts should not have a say in how they are redrawn.”[8] Other recent state-level polls have found similar results.[9] Members of Congress have taken note, with representatives from both parties introducing bills this term to increase independence in the redistricting process.

Recent court decisions have also backed reform efforts. In June 2015, the Supreme Court upheld the constitutionality of the independent redistricting commission Arizona voters created by ballot initiative in 2000.[10] Justice Ruth Bader Ginsburg, writing for the majority, cited John Locke and the Declaration of Independence, and hailed the reform measure as “intended to check legislators’ ability to choose the district lines they run in, thereby advancing the prospect that Members of Congress will in fact be ‘chosen . . . by the People of the several States.’” And in July, the Florida Supreme Court used constitutional amendments passed by Florida voters to strike down maps that had been drawn for partisan ends.[11]

Lawmakers often have little incentive to pass reform. In fact, most recent successful reforms have been passed through voter ballot initiatives. Yet, voters can act through the initiative process in only about half the states. Real nationwide reform will require more than a state-by-state strategy.[12] If we are to restore American democracy to the Framers’ vision, the next president must work with the next Congress to enact a nationwide bipartisan redistricting bill. Such a bill could take as a good starting point the Redistricting Reform Act of 2015, introduced by Reps. Zoe Lofgren, Donna Edwards, and other House Democrats.[13] It requires each state to create an independent redistricting commission. The measure is backed by groups including Common Cause and the National Council of La Raza. Another approach would be a bill along the lines of the reforms adopted in Florida in 2010 that lets legislatures continue to draw districts but adopts much tougher rules about how they are drawn.[14]

Resources

Other Redistricting Reforms

Fully Fund the U.S. Census Bureau

It is imperative that the Census Bureau remain fully funded in advance of the 2020 census. The Census determines how members of Congress are allocated. It is also the primary data source for drawing district boundaries. Although the Census is four years away, crucial tests of data collection methods are already taking place.[15] Yet Congress has consistently voted to slash the Census Bureau’s budget.[16] In the last budget bill, the Census received $1.4 billion, 10 percent less than it had requested.[17] The next president and Congress should fully fund the Census Bureau.  

Count Prisoners in Their Home Communities

The 2020 Census should count prisoners in their home communities rather than in the distant locales where most states have their prisons.

Prisoners, as a rule, have no connection to the communities where they are incarcerated, and they almost never stay there after being released. Instead, the overwhelming majority of prisoners return to their home communities to be with friends, family, and children. Counting prisoners where they are from is more accurate and appropriate.

It also makes sure communities are fairly represented. If prisoners are counted where they are incarcerated, it gives areas with high prison populations, such as upstate New York and rural East Texas, too much representation. Before reforms were passed in New York, for example, 91 percent of the people incarcerated in the state were held in upstate facilities even though 66 percent of inmates were from New York City. As a result, voting power upstate was artificially inflated while voters in New York City were underrepresented.

The next president should direct the Census Bureau to adopt residence rules that reallocate prison populations to their home addresses.

Resources:



[1] Vieth v. Jubelirer, 541 U.S. 267, 292 (2004) (plurality opinion); id., at 316 (Kennedy, J., concurring in judg­ment).

[2] Sam Wang, The Great Gerrymander of 2012, N.Y. Times (Feb. 2, 2013), http://www.nytimes.com/2013/02/03/opinion/sunday/the-great-gerrymander-of-2012.html?pagewanted=all.

[3]  Rob Richie, Republicans Got Only 52 Percent of the Vote in House Races, How did they end up with 57 percent of the seats?, The Nation (Nov. 7, 2014), http://www.thenation.com/article/republicans-only-got-52-percent-vote-house-races/.

[4] Nate Silver, As Swing Districts Dwindle, Can a Divided House Stand?, N.Y. Times (Dec. 27, 2012), http://fivethirtyeight.blogs.nytimes.com/2012/12/27/as-swing-districts-dwindle-can-a-divided-house-stand/.

[5] Ctr. for California Studies, Redistricting Reform in California: Proposition 11 on the November 2008 California Ballot 12 (2008), available at http://www.policyarchive.org/collections/cgs/index?section=5&id=95928.

[6] Jonathan Martinaug, Democrats Unveil a Plan to Fight Gerrymandering, N.Y. Times (Aug. 3, 2015), available at http://www.nytimes.com/2015/08/04/us/politics/democrats-unveil-a-plan-to-fight-gerrymandering.html;  David Hawkings, 2020 Census Might Offer Hope for Democrats, Roll Call (Feb. 9, 2015), http://blogs.rollcall.com/hawkings/redistricting-2020-census/; Simone Pathé, Ahead of Redraw, Virginia Republicans Jockey for Safe Seats, Roll Call (July 23, 2015), http://atr.rollcall.com/virginia-redistricting-republican-jockey-for-seats/.  

[7] Brief for Thomas Mann & Norman Ornstein as Amicus Curiae Supporting Appellees, Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015).

[8] Americans Across Party Lines Oppose Common Gerrymandering Practices, The Harris Poll, Nov. 7, 2013, http://www.theharrispoll.com/politics/Americans_Across_Party_Lines_Oppose_Common_Gerrymandering_Practices.html.

[9] MassINC, New Poll Shows Public Strongly Favors Independent Commission on Redistricting (Feb. 18, 2015), http://www.massinc.org/Press-Room/MassINC-News/New-poll-shows-public-strongly-favors-independent-commission-on-redistricting.aspx; Bryan Schott, Most Utahns Want Redistricting Done by Independent Commission, Utah Policy (July 29, 2015), http://utahpolicy.com/index.php/features/today-at-utah-policy/6480-.

[10] Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015).

[11] League of Women Voters of Florida v. Detzner, 172 So.3d 363 (Fla. 2015).

[12] NCSL, Initiative and Referendum States (last updated Sept. 2012), http://www.ncsl.org/research/elections-and-campaigns/chart-of-the-initiative-states.aspx.

[13] Redistricting Reform Act of 2015, H.R. 2173, 114th Cong. (2015).

[14] Fla. Const. art. III, §§ 20-21.

[15] Mary Landers, Census Test Underway in Savannah Area, Savannah Morning News (Feb. 28, 2015), available at http://savannahnow.com/news/2015-02-28/census-test-underway-savannah-area; U.S. Census Bureau, 2020 Census Program management Review (Jan. 9, 2015), http://www2.census.gov/census_2020/pmr_materials/‌2015-01-09/06_PMR_2015_Census_Testing_Overview_1-9-15_v1_Final.pdf.

[16] Arloc Sherman, House Cuts in Census Funding Would Carry a Heavy Cost, Ctr. on Budget and Policy Priorities (June 3, 2014), http://www.cbpp.org/blog/house-cuts-in-census-funding-would-carry-a-heavy-cost.

[17] Terri Ann Lowenthal, All I Want For Christmas…, The Census Project Blog (Dec. 21, 2015), http://censusprojectblog.org/category/census-budget-issues/.