A new voting bill from Senate Democrats seeks to immediately address the most egregiously gerrymandered maps as states begin the once-a-decade redistricting cycle.
The latest version of the Freedom to Vote Act seeks to address what courts have long been reluctant to do, giving judges firmer ground for rejecting maps by barring those that unfairly give a significant advantage to one political party.
The legislation also goes further by establishing a test courts would use to immediately block the use of extremely gerrymandered maps in an effort to sidestep lengthy legal battles that might otherwise leave them in place for years.
“It essentially puts states on notice that if they go overboard in enacting egregiously unfair congressional redistricting plans, that federal courts would have clear direction for how to deal with those situations,” said Jeffrey M. Wice, a senior fellow at the New York Census & Redistricting Institute at New York Law School.
“We’re at a point now where we expect a number of states to begin enacting congressional plans that could be by far worse than what we saw after 2010 where a number of states created heavily lopsided plans favoring one party.”
The measures are included in what is otherwise a scaled-back piece of legislation Democrats introduced last week as an alternative to the For The People Act in an attempt to secure 60 votes.
But the Freedom to Vote Act is arguably tougher when it comes to gerrymandering — requiring courts to immediately toss any map that doesn’t pass mathematical muster using two tests.
In many ways the bill is designed to address the 2019 Supreme Court decision in Rucho v. Common Cause that determined that while gerrymandering may be inconsistent with democratic principles, “partisan gerrymandering claims present political questions beyond the reach of the federal courts.”
If the bill passes — a big if given Democrats’ slim margins in the Senate — it could stave off a number of attempts at gerrymandering just as states are beginning the process of redrawing district lines.
“The new bill is really, really clear to the point of being mechanical,” Nick Stephanopoulos, a professor at Harvard Law School, told The Hill.
Within 15 days of a court challenge, new maps would have to be evaluated in light of how they compare to four recent elections — two in presidential election years and two with Senate races — with courts immediately blocking those shown to have a heavily partisan tilt.
The bill gives courts two ways to evaluate maps. One is the “efficiency gap,” a score that is based in part on the number of votes “wasted” by the winning party, meaning votes received beyond the 50 percent needed to win each district. The other is the “partisan bias gap,” which looks at the percentage of seats each party would win under a map in a hypothetical election in which the same number of Democratic and Republican votes were cast statewide.
Both tests produce a percentage, and the bill would require any plan above a 7 percent rating be blocked by the courts. That state would then conduct elections under its previous map while litigation progresses. It’s unclear what would happen if a state passed one test and failed the other.
Stephanopoulos, a co-creator of the efficiency gap, has used the formula to rank more than 50 years’ worth of redistricting maps.
“Relatively extreme maps historically have been over 7 percent,” he said, making it a figure that would capture “the worst roughly 20 percent or so of maps” produced in the last five decades.
“It’s kind of a rough rule of thumb about what a bad map might look like.”
The bill also funnels redistricting cases to the district court in D.C. — creating a sort of specialty court that can serve as a rapid response traffic cop on maps. With appeals going to the D.C. circuit, it could also decrease the Supreme Court’s involvement in redistricting litigation.
States that design the maps would get their day in court to defend the maps, but the new boundaries wouldn’t go into effect until the case is resolved.
Michael Li, senior counsel with the Brennan Center for Justice at the New York University School of Law, called it a “rapid test for gerrymandering” where maps that test positive for partisanship would have to quarantine while waiting for the more extensive PCR test results.
It’s something that makes attempts at gerrymandering riskier for states he said have been particularly brazen.
“These aggressive states dare courts to strike down maps,” he said, but now “states like Texas may think, ‘Maybe we won’t want to be too greedy.’”
It’s a formula not likely to sit well with Republicans, who see it as an effort from Democrats to combat a different numbers problem: that Democratic voters tend to be highly concentrated, giving an edge to Republicans dominating rural states.
“They have to undermine the traditional geographic compactness of districts to accomplish their political goals, and that’s what this whole section is designed to do,” said Jason Torchinsky, a Republican redistricting attorney.
Indeed, many current maps would have been immediately put on ice under the standards in the bill according to analysis from the Campaign Legal Center, which analyzed current boundaries using both formulas.
Purple Ohio’s House map has a 14 percent efficiency gap rating favoring Republicans and 20 percent rating using the partisan bias score. Wisconsin and Michigan, also competitive, favor Republicans by more than 10 percent under either formula. North Carolina has a 9 percent pro-Republican rating using the efficiency gap. Maryland would also see its map questioned under the new bill, with a 10 percent gap favoring Democrats under the same formula.
The downside is that maps that don’t trigger the formula, say those found to have only a 6 percent partisan gap, would have to go through the same lengthy court battles that dispute lines today.
Kathay Feng, director of redistricting and representation with Common Cause, pointed to litigation in North Carolina that dragged into 2018.
“I think what’s going to happen is those lines that are measured by algorithms to be extreme gerrymanders will immediately be hauled into court and examined, and the worst of the worst gerrymanders will be reviewed and hopefully overturned,” she said.
“There will be a universe of redrawn lines that fall into a grey area where people may have to live with those lines or look for ways under their state constitution to fundamentally challenge them.”
To combat those maps, the bill simply seeks to ban partisan gerrymandering, writing that states cannot draw maps “with the intent or has the effect of materially favoring or disfavoring any political party.”
It’s a track many have used to justify other ills in voting laws beyond maps. State court judges in North Carolina on Friday struck down the state’s 2018 voter ID law, writing that though designed with political intent in mind, the policy unlawfully discriminated against Black voters.
Feng said the bar on partisan redistricting will nix a frequent excuse for maps that otherwise negatively affect minority voters.
“It will eliminate the most extreme partisan gerrymanders, and it will send a clear signal to those that are drawing the lines that they can no longer use that as their escape valve for all the manipulation they’re doing,” she said.
Li views the bill as Congress being responsive to the Supreme Court by following through and defining a problem they say they otherwise can’t address.
“Rucho said that Congress can ban partisan gerrymandering if it wants,” he said.
“That is exactly what Congress is going, taking Chief Justice John Roberts up on his offer and saying this is what we want you to do.”