We Don’t Have to Wait for the Supreme Court to Stop Gerrymandering

August 13, 2018
Issues
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Gerrymandered districts before U.S. Supreme Court

Last week, the Supreme Court sidestepped our challenge to the state of Wisconsin’s extreme partisan gerrymanders. Rather than ruling on the merits, the Justices sent the case, Gill v. Whitford, back to a lower court to further examine the plaintiff’s standing in the case and the serious harms that gerrymanders cause. While this means that the litigation will take a little longer, we and our plaintiffs are committed to continuing the legal fight to create a fairer and more representative political process. Just as importantly, however, we don’t have to wait for the courts before making progress through other avenues. We are working with citizens across the country who are pushing for change through ballot initiatives that improve the redistricting process.

Earlier this year, our legal and policy experts published an up-to-date and comprehensive guide to designing independent redistricting commissions. These commissions are one of the most effective ways to curb the undue influence of partisan and special interests and are already used by several states. The guide supplies good government advocates with three critical tools. First, it provides information on the key concepts involved in the map drawing process. Second, it outlines policy options and considerations to keep in mind when designing an independent redistricting commission, including examples of constitutional or statutory language used in existing or proposed commissions. Finally, the guide details the criteria that commissions can and must consider when drawing district lines. As there is more at stake in drawing district maps than partisan gain, this guide details best practices for citizens seeking a more independent and fair process.

In fact, concerned citizens have already teed up ballot initiatives to reform redistricting in five states this year, and several more are close to doing so as well. Ballot initiatives, in the states that allow them, are a key avenue for redistricting reform because they allow voters to directly voice their opinions on constitutional or statutory amendments without having to go through the legislature, the body in many states that currently draws district maps for self-advantage. Although the redistricting reforms in the various initiatives all set up a more independent redistricting process in their own way, they all present promising improvements over the majority-party-dominated systems currently in place—and they can be implemented while partisan gerrymandering challenges continue to be litigated in the courts.

Just this May, Ohio voters overwhelmingly passed a state constitutional amendment through ballot initiative to reform their congressional redistricting process. The new process gives the legislature the first stab at drawing a map, but requires bipartisan support in order for a plan to be enacted. If the legislature cannot agree on a plan, then a seven-member bipartisan commission gets a chance at drawing the congressional district lines and must approve a plan with at least two votes from the minority party. If the bipartisan commission cannot agree on a plan, then the legislature gets another chance, with additional bipartisan checks in place. In 2015, Ohio voters also passed a similar initiative to reform the state legislative redistricting process. Both reforms will take effect in 2021.

In Michigan, a proposed state constitutional amendment establishing a new independent redistricting commission has already qualified to appear on the ballot for the November 2018 election, subject to a pending challenge at the Michigan Supreme Court. The amendment would establish a commission of thirteen members, chosen randomly from pools of Democrat, Republican, and Independent citizen applicants. All maps drawn by the commission, both for congressional and state legislative maps, would be open for public review and comment before being enacted, and the amendment would put in place strong protections for voters of color and against partisan gerrymandering. Despite a complaint alleging that the measure was too radical a change to the Michigan constitution, a three-judge panel unanimously upheld the proposal. That decision has been appealed to the Michigan Supreme Court, which denied the challengers request for a stay but has not yet ruled on the merits.

Utah is taking a slightly different approach, with a ballot proposal to amend the Utah Code, rather than a constitutional amendment. The proposal has qualified for the November 2018 ballot. Utah’s measure would establish a redistricting commission with members appointed by various top elected officials in the Utah government. The proposal also lays out several criteria for both the commission and the legislature to follow when drawing district lines, including protections for communities of color and provisions that require partisan fairness. Additionally, the proposal provides for transparency in the redistricting process, including a requirement that computer software and data be available so that the public and reform groups can review any proposed redistricting plans.

The Missouri ballot initiative to amend the state constitution is part of a larger government reform package. Under Missouri’s proposal, all districting would be overseen by a new state official: a nonpartisan state demographer. The demographer would be selected by the state senate majority and minority leaders from a pool of qualified applicants submitted by the state auditor. The non-partisan demographer would also be required to consider traditional districting criteria and partisan fairness in drawing lines. The proposal has received enough signatures to be placed on the November 2018 ballot and only awaits certification from the Missouri Secretary of State.

Colorado has a twin set of constitutional amendment ballot measures establishing independent redistricting commissions for state legislative and congressional districts. Having passed the state legislature unanimously, and with the support of a coalition of good government and reform groups, both will be on the ballot in November 2018. Both commissions will comprise 12 members: four from the majority party, four from the minority party, and four independents. Commissioners are selected by a combination of 1) evaluations by a panel of retired judges and 2) random selection. Any districting plan would require the approval of at least eight commission members and impose strong protections for voters of color and to prevent partisan gerrymandering.

Two states, Arkansas and Oklahoma, are also attempting to get redistricting reform on the ballot in the near future but have not yet qualified. The Arkansas Citizens’ Redistricting Commission Amendment is currently gathering the required signatures to be certified for the November 2018 ballot, and the group Represent Oklahoma is building support ahead of the next round of redistricting. Additionally, bipartisan coalitions of lawmakers and activists are seeking to reform redistricting through constitutional amendments beginning in the legislatures of Pennsylvania, Virginia, and Illinois. Pennsylvania legislators have introduced a bill that, if passed and ratified by the people, would also establish a redistricting commission.

In short, the battle for open, fair, and democratic districting procedures is far from over. While we will continue to litigate to curb the constitutional harms caused by extreme partisan gerrymandering, CLC also supports efforts to mitigate those harms through a more independent map drawing process. The several ballot initiatives slated for voter approval this fall are an important reminder that some states may be able to get redistricting reform even while we wait for the Supreme Court to set a clear standard on when the use of partisanship in redistricting goes too far. Whether it is through federal or state litigation, or ballot initiatives, it is time that voters choose their politicians, and not the other way around.