Real fix for gerrymandering has been flying under the radar

“I took some of your arguments in the briefs to be that extreme partisan gerrymandering is a real problem for our democracy,” Justice Brett Kavanaugh told lawyers challenging congressional district maps in North Carolina, drawn by Republicans, and in Maryland, drawn by Democrats, “and I’m not going to dispute that.”

Caused by as well as a cause of hyper-partisanship and polarization, and — many constitutional scholars argue — a violation of the Equal Protection Clause of the Fourteenth Amendment, gerrymandering is, indeed, a problem for democracy. The practice is extreme — and pervasive.

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In North Carolina, a purple state, which usually generates a small majority of Republican voters, the GOP won 10 of 13 congressional seats in 2018. General Assemblyman David Lewis, the GOP strategist of a 2017 redistricting bill to replace the plan a panel of federal judges rejected as “an impermissible effort to dictate electoral outcomes,” acknowledged that his legislation was a political gerrymander. Saying “I think electing Republicans is better than electing Democrats,” Lewis proposed to draw maps “to give a partisan advantage to 10 Republicans and 3 Democrats,” he told lawmakers, “because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”

In Maryland, plaintiffs allege, legislators used the latest technology to move large numbers of Republicans out of the Sixth Congressional District, add Democrats, and flip the seat from reliably Republican to safely Democratic.

In addition to North Carolina and Maryland, the Brennan Center for Justice reports, congressional (partisan and racially-based) redistricting cases are making their way through the courts in Wisconsin, Michigan, Ohio, Virginia, Connecticut, Georgia, Texas, Alabama, Louisiana, and Mississippi.

It is not at all clear, of course, how — or whether — the United States Supreme Court will weigh in on gerrymandering. As in the past, the Roberts Court may decide that the litigants do not have standing to sue or that each plan, even if it is blatantly partisan, presents a “political question,” inappropriate for judges to address. They might also let the decisions of federal district courts stand, as they did in Pennsylvania’s gerrymandering case in 2018. Or they might issue a narrow decision, with no universally applicable standards.

That said, opponents of gerrymandering, in red and blue states, have identified alternative strategies. In North Carolina, Common Cause, the Democratic Party, and a group of voters have challenged the redistricting maps for state legislators as a violation of North Carolina’s constitution. Although appeals are pending, a trial date has been set for July 15, 2019 in a state court. Since state legislatures are Ground Zero for gerrymandering, reformers in other states are following North Carolina’s example and challenging redistricting in local as well as national elective offices.

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Most important, perhaps, 13 states now authorize bi-partisan or non-partisan procedures to draw electoral district boundaries. Voters in Ohio, Colorado, Michigan, Missouri, and Utah, approved amendments, proposals, or propositions on redistricting in 2018. In Ohio, 75 percent of voters said yes to a plan in which congressional seats are mapped with the approval of 60 percent of the members of each chamber of the state legislature and at least 50 percent of Republicans and 50 percent of Democrats. Should the legislature fail to agree, a seven member Commission will adopt a plan, with support from at least two members of the minority party.

In Colorado, 71 percent of voters established a redistricting commission to draw boundaries around its seven U.S. House seats. The commission will be comprised of four members of the state’s largest political party, four from its second largest party, and four individuals who are not affiliated with any political party.

61 percent of Michigan voters approved a similar plan, creating a commission composed of four Democrats, four Republicans, and four independents or members of third parties. Seven votes, including a minimum of two Democrats, two Republicans, and two unaffiliated members, are needed to pass a plan.

With the approval of 62 percent of voters, Missouri adopted a different approach, authorizing a non-partisan state demographer (selected by the state auditor, state Senate majority and minority leaders) to draw state legislative districts, taking into consideration partisan fairness and competitiveness, contiguousness, compactness, and the boundaries of political subdivisions. The demographer must then submit the proposed map to a commission which can amend the plan via a 70 percent vote. If the commission cannot agree on changes, the demographer’s plan will be enacted.

In Utah, just over 50 percent of voters created a seven member advisory commission, appointed by the governor and leaders of the state legislature, to submit plans for the legislature to approve or reject.

To be sure, there are many obstacles to reform by referendum. Many states, including North Carolina, do not permit citizen initiatives — or require state legislatures to authorize them. Governor Larry Hogan (R-Md.) tried and failed four times to persuade the legislature in his state to send a redistricting proposal to the voters.

It seems clear, however, that the vast majority of Americans want to end gerrymandering and empower non-partisan commissions to draw maps for state and congressional districts. To date, the reformers have been flying beneath the radar. Gerrymandering should be front and center in the elections of 2020.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University, and the co-author (with Stuart Blumin) of Rude Republic: Americans and Their Politics in the Nineteenth Century.