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Analysis

Why the For the People Act Is Critical for Fair Voting Maps

The bill would make historic reforms to the way congressional district maps are drawn, which too often favors one party and disadvantages of communities of color.

March 11, 2021

This fall, congres­sional districts around the coun­try will be redrawn based on the 2020 Census. With the For the People Act, Congress has a once-in-a-decade chance to replace a murky and abuse-prone process with one that is fair, trans­par­ent, and inclus­ive.

The bill, which was passed by the House this month and will soon be intro­duced in the Senate, would strengthen protec­tions for communit­ies of color and ban partisan gerry­man­der­ing. It would also enhance the abil­ity of voters to chal­lenge racially or polit­ic­ally discrim­in­at­ory maps in court, require mean­ing­ful trans­par­ency in the map-draw­ing process, and mandate the use of inde­pend­ent commis­sions to draw maps.

Pack­aged together in one bill, the reforms are the most signi­fic­ant effort in Amer­ican history to rein in gerry­man­der­ing and other abuses that have long plagued congres­sional redis­trict­ing. But with the start of redis­trict­ing near­ing, the window for Congress to act is clos­ing.

A robust ban to stop partisan gerry­man­der­ing

Last decade saw some the most aggress­ive partisan gerry­man­der­ing in U.S. history. Demo­crats gerry­mandered where they could, but Repub­lican success in the 2010 midterms gave them control of the process in far more states — and they used it, gerry­man­der­ing to create a net bonus of 16 to 17 seats in the House.

Without reform, this decade could be even worse. The Supreme Court’s 2019 ruling that partisan gerry­man­der­ing does not viol­ate the Consti­tu­tion means that would-be gerry­man­der­ers now have license to use new mapping tech­no­logy and power­ful analyt­ics about voters to create even more durable and perni­cious gerry­manders. And as histor­ic­ally has been the case, much of this gerry­man­der­ing invari­ably will target communit­ies of color.

The For the People Act responds by barring maps that have the intent or effect of giving a party an undue statewide advant­age. To meas­ure effect, the For the People Act sets out an easily applied two-part stat­ist­ical test. If a map fails the test, it must be redrawn, regard­less of intent. Inclu­sion of this straight­for­ward test means that it will it be easier to identify bad maps and that biased maps can more quickly be thrown out by courts.

Strengthened protec­tions for communit­ies of color

In addi­tion to banning partisan gerry­man­der­ing, the For the People Act would add two other import­ant protec­tions for the nation’s fast-grow­ing communit­ies of color. The first is protec­tion for districts where a community of color has shown a consist­ent abil­ity to elect its preferred candid­ates, even if the district is not a major­ity-minor­ity district as required by the Voting Rights Act. The second is a require­ment that when draw­ing maps, states strive, as much as possible, to keep towns, neigh­bor­hoods, and other geographic areas where people have shared iden­tit­ies or common interests together in same district.

Both protec­tions will be import­ant as people of color increas­ingly move from cities to more diverse, multiracial communit­ies in the nation’s suburbs and exurbs, where current law provides few mean­ing­ful protec­tions against naked efforts to under­cut their grow­ing polit­ical power.

Greater trans­par­ency

Redis­trict­ing, by design, has long been a murky and closed-door process. In 2011, for example, Repub­lic­ans who controlled the map draw­ing process in Pennsylvania did not publicly release their proposed congres­sional map until the morn­ing of the day the bill was to be voted on in the state senate, giving Demo­crats and the public just hours to review and respond to it. By the time it was appar­ent that the map created an egre­gious 13–5 Repub­lican gerry­mander, the vote was over.

The For the People Act would ban such hide-the-ball tactics. States would be required to make the data used to draw maps publicly avail­able and to propose and soli­cit comments on prelim­in­ary maps before propos­ing a final map. There then would be a further comment period and addi­tional hear­ings before a vote to approve a final map could be held.

Stream­lined litig­a­tion

Courts are often a key to fair maps. But litig­a­tion delays mean it frequently takes years to win better maps. Last decade, for example, a court in Texas took nearly three years to rule that the state’s congres­sional map was racially discrim­in­at­ory. States, indeed, often inten­tion­ally drag out litig­a­tion, know­ing that they can keep using discrim­in­at­ory maps in the mean­time.

The For the People Act would change this dynamic in several ways. First, it would require courts, includ­ing the Supreme Court, to prior­it­ize redis­trict­ing litig­a­tion. And, if litig­a­tion cannot be fully resolved ahead of an elec­tion, the bill would empower a court to put interim maps in place to address clearly proven, blatant viol­a­tions.

The For the People Act also would speed up redis­trict­ing litig­a­tion, includ­ing Voting Rights Act cases, by super­sed­ing legis­lat­ive rules that states commonly use to try to bar disclos­ure of back­room discus­sions about maps.

Last but not least, if a court strikes down a map, the For the People Act would require it to proceed with devel­op­ment of a replace­ment while an appeal proceeds so that a fair map is ready to go for upcom­ing elec­tions once the appeal is decided.

Inde­pend­ent commis­sions

The For the People Act would require that states use inde­pend­ent commis­sions to draw congres­sional maps. Modelled after success­ful state reforms, these commis­sions would remove partisan lawmakers from the process and replace them with citizen commis­sion­ers selec­ted through a rigor­ous screen­ing process designed to ensure that commis­sion­ers are well-qual­i­fied and diverse. In contrast to the current prac­tice in most states, maps could no longer be approved along party lines. Instead, a map would need to win support from Demo­crats, Repub­lic­ans, and inde­pend­ent or third-party members of the commis­sion in order to be adop­ted.

At present, the For the People Act provides that these commis­sions will go into effect for the upcom­ing round of redis­trict­ing. Whether that is feas­ible will depend on when the Senate takes up and passes the bill. But even if there isn’t enough time to imple­ment commis­sions for this cycle of redis­trict­ing, the rest of the reforms can, and should, be made effect­ive imme­di­ately. Indeed, with Amer­ic­ans on the precip­ice of what could be some of the worst gerry­man­der­ing in our history, the For the People Act could not be more urgently needed.