Since the Supreme Court blocked a judicial solution to partisan gerrymandering last year, is a legislative solution the only option?
After each decennial Census, including the one being conducted this April, states revise the boundaries of (aka “redistrict”) their congressional seats based on the new population numbers. In most states, this revision is overseen by explicitly partisan groups such as state legislatures.
This can lead to results such as 2012, when Democrats won more total House votes nationwide yet Republicans won the House anyway, in large part because of partisan gerrymandering. (A practice in which revised boundaries provide substantial electoral advantage to the dominant party.)
It can also work the other way: in Connecticut, House Republicans won 38% of the vote but earned zero seats. However, once partisan district boundaries are in place, it can be difficult for the other party to get control again. More state legislatures with gerrymandered districts are currently controlled by Republicans, which is how the 2012 results were possible.
Last June, the Supreme Court ruled 5–4 that claims of partisan gerrymandering cannot be challenged in court. Removing this judicial remedy now leaves the practice’s opponents primarily advocating for another option: independent redistricting commissions.
Nine states currently give an independent or bipartisan commission primary responsibility for redistricting, according to the National Conference of State Legislatures. These include a mix of blue states like California and Washington, red states like Idaho, and purple states like Colorado and Michigan.
Do they work? The most gerrymandered districts tend to come from states that use more explicitly partisan redistricting methods. On the other hand, such independent or bipartisan commissions don’t preclude gerrymandering entirely.
A few other states will begin using such commissions for the first time in 2020, including Missouri and Utah.
Other states have systems in which independent commissions serve advisory roles to a primarily partisan process, or in which independent commissions take over as backup options if the partisan process fails to produce new districts by a mandated deadline.
What the legislation does
The Redistricting Reform Act would require all 50 states to adopt independent redistricting commissions.
Specifically, the commissions would each have 15 people: five from the majority political party, five from the minority political party, and the remaining five either unaffiliated or affiliated with a minor party.
It would also require that any redistricting plan the commission wants to enact must earn support from at least one member from each of those three groups. (Preventing a plan supported solely by the Republican and Libertarian parties but with zero Democratic support, for example.)
In the event that the redistricting commission still isn’t able to enact a plan by deadline, the legislation stipulates that redistricting would then go to a panel of three judges.
The House version was introduced on June 27 as bill number H.R. 3572, by Rep. Zoe Lofgren (D-CA19). The Senate version was introduced a few weeks later on July 23 as bill number S. 2226, by Sen. Amy Klobuchar (D-MN).
What supporters say
Supporters argue the legislation attempts to end a practice which renders most congressional districts uncompetitive and can give one party a substantial unfair electoral advantage.
“If the U.S. Supreme Court won’t fight to protect Americans’ votes, then Congress will,” Rep. Lofgren said in a press release. “Our democracy cannot function properly unless every person’s vote counts equally, and voters choose their elected officials, not the other way around. My bill would fix our broken redistricting process to ensure all voices are heard and politicians are held accountable.”
“Partisan gerrymandering undermines the principles of our democracy and puts political parties before people,” Sen. Klobuchar said in a separate press release. “Following [the] Supreme Court decision to essentially greenlight political manipulation of congressional districts, Congress must act to protect the Constitutional principle of ‘one-person, one-vote.’ My legislation would help eliminate gerrymandering once and for all so every person’s vote is counted equally.”
What opponents say
Opponents counter that partisan gerrymandering, even though it often is painted as a bogeyman, can actually be a good thing.
“For lawmakers drawing district lines, competition isn’t the only goal,” Jamelle Bouie wrote for The American Prospect. “Equally compelling (or more so) is the desire to satisfy as many constituents as possible: ‘How can we best serve the people in our districts?’”
“It’s possible that highly partisan districts are more amenable to producing satisfied constituents than the alternative, where politicians are moderate by necessity and have to satisfy the diverse preferences of a broad cross-section,” Bouie continued.
“Put another way, If your district is evenly divided between Democrats, Republicans, and independents, then for any given decision, you are guaranteed to disappoint a significant number of people you represent. By contrast, a district that overwhelmingly favors one party has fewer needs to meet and is easier to satisfy than a diverse one.”
Odds of passage
The bill has attracted 52 cosponsors, all Democrats. It awaits a potential vote in the House Judiciary Committee.
Rep. Lofgren has reintroduced the bill in every Congress since 2005. It has yet to receive a vote, including in prior Democratic-controlled Houses.
In March 2019, the House passed the For the People Act, a 706-page bill serving as one of House Democrats’ foremost legislative priorities, which included elements of the Redistricting Reform Act. It passed 234 to 193, with all voting Democrats in support and all voting Republicans against.
That bill has not received a vote in the Senate, prompting the reintroduction of the standalone legislation a few months later.