Rethinking Redistricting: Why States Should Act Where The Court Stood Still

MICHAEL J. KIMOK—In early 2018, lawmakers, voters, and election lawyers were eagerly awaiting a ruling from the Supreme Court in Gill v. Whitford. The Court had accepted not one, but two separate equal protection challenges to congressional district maps based on political partisanship. Despite a spirited debate among the Justices, the Court ultimately punted on the issue, failing to resolve a 30-year debate on the constitutionality of partisan gerrymandering.

There is good reason for the debate over partisan gerrymandering. Since the 2011 legislative redistricting, Republican seats in the House of Representatives have consistently outnumbered the amount expected based on their total vote share. Over these three election cycles, the GOP won an average of 26.21 more seats in the House than would have been expected based on their percentage of the national popular vote. This 26.21 seat difference equals about six percent of total voting power in the House.

While there has been some state-by-state litigation to combat partisanship in district maps, the failure of the Supreme Court to act has left many activists wondering how to counter gerrymandering more broadly. While political parties are ramping up their state legislative efforts in hopes of controlling the next round of redistricting, activists hoping to remove parties from the process are looking to an unlikely place for bipartisan inspiration: Arizona.

In 2000, Arizona voters approved Proposition 106, creating the Arizona Independent Redistricting Commission. While the AIRC was passed with little fanfare, the maps drawn after the 2010 census set off a political and legal firestorm that eventually made it to the Supreme Court. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court considered whether the Constitution allowed congressional maps to be drawn by a state body other than the state legislature. At question was the Elections Clause, which puts state legislatures in charge of prescribing the manner of elections to the House of Representatives. The Supreme Court upheld the provision, stating that the term “legislature” means “the power that makes laws” which may lay with the official state body or with the voters themselves.

The results in Arizona are striking. Despite the GOP controlling two-thirds of state house seats after the 2010 election, U.S. House election results are much more in line with what would be expected based on state-wide vote returns. That Arizona results are much more in line with the will of the voters than national House results suggests that the Independent Redistricting Commission is much more capable of drawing maps that reflect the will of the people than the elected legislatures of other states.

Voters in other states are taking notice. In 2010, California voters approved Proposition 20, creating the California Citizens Redistricting Commission. The result was that California had ten of the seventy-five most competitive U.S. House districts in the country in 2012. When races are more competitive, they are more likely to properly reflect the will of the people.

In 2018, with another census and redistricting on the horizon, several states are hoping to emulate this success. Along with Arizona and California, Alaska, Idaho, Montana, and Washington have already put independent redistricting commissions in place. Four other states, Michigan, Utah, Missouri, and Colorado, have ballot measures this November that would create independent redistricting commissions. While each state initiative has its own nuances, they model their plans after the Arizona commission.

The Michigan plan is particularly novel. Under the proposed plan, the Secretary of State will send commissioner applications at random to 10,000 registered voters. These voters may then apply to the Secretary of State for a place on the commission. These non-governmental commissioners will be allowed to hire staffs to assist with data collection and processing, and the commission will be required to hold at least fifteen public hearings throughout the redistricting process.

While the Michigan plan is novel, the goal of the plan mirrors that of other state commissions: to increase the number of competitive districts. More competitive districts leads to greater representation of the people in general. In competitive districts, voter turnout is less influenced by outside factors; voters may turnout in higher numbers due to a feeling that their votes influence results. In Arizona and California, this has led to representation more in line with the expressed wishes of the voters.

Independent commissions may not be the only way to increase competition; they may not even be the best way. But the early results at least appear to be maps that produce results more in line with the expressed wishes of the voters.