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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.

Published: February 4, 2016

Read our 2018 Demo­cracy report here.

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/.