The House Democrats’ plan for redistricting commissions is unconstitutional and wouldn’t work.
The House Democrats’ plan for redistricting commissions is unconstitutional and wouldn’t work.
I n the first installment of my examination of gerrymandering, I analyzed why the Republican advantage over the past decade is fairly small by historical standards and dwarfed by the Democrats’ prior decades-long hammerlock on redistricting. Nonetheless, as they aggressively gerrymander Democratic states today, Democrats cast themselves as innocent victims of partisan aggression that began only in 2010. To bolster this, they point to their proposals to change the law nationwide. But when you actually dig into their proposals, they are far from evenhanded or foolproof.
Because this is a lengthy topic, I will break the second installment into a couple of columns to examine the problems with the Democrats’ proposals and sketch out some more modest, practical ideas of my own. The third installment of this series (hopefully just one column!) will conclude with a look at how redistricting is playing out in 2022. In today’s column, I take a look at H.R. 1, the Democratic bill that passed the House.
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H.R. 1 was designed as a partisan messaging bill for the 2018 midterms; it was never intended to serve as the basis for bipartisan legislation. No serious political party would propose a wish list of everything it wanted on gerrymandering and voting procedures and voter registration and election administration and campaign speech and judicial ethics in the same bill, and expect anything but a wall of opposition. Indeed, that is what it was designed to elicit. Still, while the Democrats’ redistricting proposals have been significantly reworked in the Senate, they are worth some discussion here because nearly the entire House Democratic caucus voted to make this bill federal law.
Focus on the redistricting provisions, contained in Sections 2401 through 2435. The centerpiece of H.R. 1’s redistricting “reforms” is to require each state to establish an “independent redistricting commission” to take the job of drawing districts away from the state legislature. Thirteen pages of the bill’s text are consumed with the composition and operations of the commissions: dates of meetings, regulation of the diversity of members and the methods of training them, the selection of a chairman, the requirements for a quorum, the appointment of staff and contractors, disclosures of political activity, and so forth. Further rules are laid down for enactment and publication of plans, judicial review, and federal funding.
These rules are not simply required as strings attached to optional federal funds; they are mandatory except in Iowa — which is given an explicit exemption — as well as states with existing commissions that comply with certain requirements. Section 2401(a) says that “any congressional redistricting conducted by a State shall be conducted in accordance with” its commission procedures.
The Constitutional Problem
There are two serious problems with this proposal. The first is that it is unconstitutional, because the federal government cannot simply commandeer the machinery of states to create state agencies and then micromanage how they operate.
The Constitution is, perhaps surprisingly, reticent on how House districts are drawn. Article I, Section 2 says that “the House of Representatives shall be composed of Members chosen every second Year by the People of the several States,” and its language on the apportionment of seats was amended by Section 2 of the 14th Amendment to remove the “three-fifths” clause dealing with slaves; it now reads that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”
The division of states into single-member districts, decided by winner-take-all elections held in each district, is thus not constitutionally mandated. While the Founders envisioned such districts (Madison mentions them in Federalist No. 54, 56, and 57), it was left to Congress to decide whether to require them. Not until 1842 did Congress mandate single-member districts, and that mandate lapsed at times in subsequent redistricting statutes. It was only permanently imposed in 1967, after the Court’s 1964 decision in Wesberry v. Sanders concluded that the requirement of election by “the People” required either equally sized districts or at-large elections — but precluded districts of unequal size.
Debates over that ruling’s correctness as an original matter aside, Wesberry is the law and likely to remain so. But that only takes us as far as equally sized districts, not how they are shaped. H.R. 1 relied upon two constitutional provisions that give Congress some authority in this area. The first is Article I, Section 4:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The second is Section 5 of the 14th Amendment, which empowers Congress to “enforce, by appropriate legislation,” the rest of the 14th Amendment, specifically (in this case) Section 2’s requirement of equal apportionment of House seats among states.
As I have previously detailed, when you read these provisions together, Congress clearly has significant powers to make and alter rules regarding congressional elections. Congress can regulate the outer limits of what district maps could look like. It can provide remedies in federal court for violations of federal law. The 14th and 15th Amendments also clearly provide authority — there are debates over how much — to prohibit race discrimination in drawing district lines.
Alternatively, Congress itself could draw the district lines if it chose to. As the Supreme Court observed in 2015, “there can be no dispute that Congress itself may draw a State’s congressional-district boundaries.” In the second half of the 19th century, for example, Congress required the election of at-large representatives to fill new seats a state gained in the census, if the state legislature failed to adopt a new map.
But the constitutional powers of Congress, while broad, are not unlimited. If the drawing of district lines is done by state governments, Congress cannot simply compel those states to create entire new organs of state government to carry out federal law rather than working through the state’s own lawmaking procedures. As Chief Justice John Roberts wrote for a 7–2 majority striking down portions of Obamacare’s Medicaid expansion in NFIB v. Sebelius:
[We have struck down] federal legislation that commandeers a State’s legislative or administrative apparatus for federal purposes. . . . Congress may use its spending power to create incentives for States to act in accordance with federal policies. But when pressure turns into compulsion, the legislation runs contrary to our system of federalism. The Constitution simply does not give Congress the authority to require the States to regulate. . . . That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own. Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system.
There are some areas in which Congress is given explicit commandeering power; the militia clause of Article I, Section 8, for example, allows Congress to make laws “organizing, arming, and disciplining, the Militia,” while reserving to states the appointment of officers. Likewise, under Article I, Section 2, Congress can order states to hold elections on particular days, as well as dictating aspects of who votes and how. But given that nothing in the Constitution even mentions the drafting of House district lines, the anti-commandeering principle of NFIB would preclude Congress from requiring states to create commissions whose operation is micromanaged by Congress.
That conclusion is reinforced by the language of Article I, Section 2, which says that election laws shall be “prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulation.” That is an explicit division of labor: Either laws are made by the state legislature, or they are written by Congress. Congress can’t force states to have state laws made by some state entity other than the legislature, which is what H.R. 1 would do.
In 2015, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court held that states are permitted to have districts drawn by independent commissions rather than the legislature, but the Court reached that conclusion by arguing that a state “legislature” is whatever entity is allowed to exercise legislative power under the state constitution. As Justice Ruth Bader Ginsburg’s opinion explained:
Redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking. . . . It is characteristic of our federal system that States retain autonomy to establish their own governmental processes. . . . Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign.
H.R. 1’s commission requirements are a flagrant violation of this principle of state sovereignty.
The Practical Problem
Unconstitutionality aside, handing over redistricting to “independent” commissions is a bad idea that will not solve the problems with gerrymandering.
Fundamentally, the drawing of legislative districts is a pervasively political question. It is political not only because it is a tool of partisan advantage and incumbent protection but also because the legitimate interests at stake are political. Even H.R. 1 requires that “districts shall respect communities of interest, neighborhoods, and political subdivisions to the extent practicable.” Respecting existing borders is one thing, but what constitutes “communities of interest” deserving of legislative representation is a classic political judgment.
The theory behind independent commissions is that they can take the politics out of politics. This is the progressive vision of a supervised model of American democracy: Everyone can vote for whatever they want, but power is reserved to unelected, unaccountable bodies (sometimes staffed by disinterested “experts”) to decide what policies are actually permitted. The great wisdom of the Founding Fathers was that they did not deceive themselves in this way: Political decisions were to be made by people accountable to the voters, and powers were to be slowed down or checked by other powers rather than invested with the pretense of impartiality.
There are a variety of ways to design a redistricting commission, and there are arguably some uses for having a citizen commission that plays some form of advisory role. But at the end of the day, one may as well hold back the tide as keep politics out of redistricting. Thus, merely tinkering around the edges of how H.R. 1 is drafted is beside the point; the problem is with the idea of a commission as a substitute for a popularly elected legislature.
Consider California, which handed over redistricting to a commission after a pair of ballot initiatives in 2008 and 2010. Originally pushed by Arnold Schwarzenegger, the 2008 initiative passed over the strenuous objections of Nancy Pelosi and other California Democrats, who spent millions campaigning against the ballot initiative creating the commission, and millions more in a failed 2010 effort to repeal it.
The maps the commission drew up in 2011 have benefitted Democrats, giving them more extra seats than any party gains in any other state. Its new map is even more tilted to Democrats: FiveThirtyEight rates 43 of its 52 seats as Democratic-leaning and seven Republican-leaning, with two competitive seats: “The new map is moderately biased toward Democrats, according to our fairness metrics.” The Princeton Gerrymandering Project rates the map as producing 44 Democratic districts, five Republican districts, and three competitive districts. Here’s Dave Wasserman of the Cook Political Report on the near-final version of the map:
California’s . . . map looks terrific for Dems. All 42 Dem incumbents (except retiring Rep. Alan Lowenthal (D), whose Long Beach seat is folded in w/ LA Rep. Lucille Roybal-Allard (D)’s), get strong seats. Meanwhile, five of 11 GOP seats get more vulnerable. . . . The most obvious, overriding aim of this map: create more Latino majority districts.
The map splits 27 different California counties across more than one district. Princeton scores the geographic compactness of districts on a scale from 0 to 1, with 1 being districts that are perfect circles. California’s map scores at 0.358, lower than the 0.447 score of the Georgia map, the 0.417 score of Ron DeSantis’s proposed Florida map, and the 0.382 score of Alabama’s map.
The commission has hardly been a model of transparency and nonpartisanship. Partly that is because the commission has outsourced partisanship. To avoid the appearance of political motive, commissioners inexperienced in politics were required by the ballot initiative and chosen by state auditor’s office. To avoid the appearance of political analysis, the commissioners chose not even to consider data of partisan voting behavior in their deliberations after the 2010 census. But neophyte commissioners blinding themselves to the data made it child’s play to manipulate their decisions from outside.
A 2011 ProPublica investigation described how Democrats worked that system:
Working with the Democratic Congressional Campaign Committee — a national arm of the party that provides money and support to Democratic candidates — members were told to begin “strategizing about potential future district lines”. . . . The citizens’ commission had pledged to create districts based on testimony from the communities themselves, not from parties or statewide political players. To get around that, Democrats surreptitiously enlisted local voters, elected officials, labor unions and community groups to testify in support of configurations that coincided with the party’s interests. When they appeared before the commission, those groups identified themselves as ordinary Californians and did not disclose their ties to the party. One woman who purported to represent the Asian community of the San Gabriel Valley was actually a lobbyist who grew up in rural Idaho, and lives in Sacramento. In one instance, party operatives invented a local group to advocate for the Democrats’ map.
California’s Democratic representatives got much of what they wanted from the 2010 redistricting cycle, especially in the northern part of the state. . . . California’s Republicans were hardly a factor. The national GOP stayed largely on the sidelines, and individual Republicans had limited success influencing the commission.
Read the whole thing; there is much more. This time around, the partisans were again smoothly positioned to keep their fingerprints off the final maps. The commission’s outside law firm is Strumwasser & Woocher, which represented the Obama campaigns in 2008 and 2012. A Republican lawsuit details the firm’s partisan interests, including representation of the (Democrat-dominated) California legislature, “regularly serv[ing] as treasurer and legal counsel to various federal, state, and local political committees and candidates for office” — including “several that have been supported by the California Democratic Party” — representing Democratic House members Katie Porter, Tony Cardenas, Lou Correa, and Nanette Barragan, and donations by named partners of the firm of more than $2,000 each to Democratic candidates.
The commission also relied on a nonpublic report by outside consultants that appears to have driven its extensive racial gerrymanders:
[Republicans suing the commission] asked the court to compel the redistricting commission to release a private report analyzing historic racial voting patterns in some parts of California, an important building block in drawing maps that comply with the federal Voting Rights Act. The report was prepared by consultants hired by the commission and, while frequently referenced in recent meetings, has not been released to the public. The draft congressional and legislative maps were posted online with information regarding each district’s voting-age population by race and ethnicity. But the underlying reasons for why certain California communities would be divvied up with those voters in mind — reasons presumably guided by the study of past voting trends that split along racial lines — remain unclear.
In fact, the new California map is heavily gerrymandered by race. As George Skelton of the Los Angeles Times observes:
The goal of this year’s gerrymandering was to help Latino, Asian American and Black candidates win seats. And it resulted in some very oddly shaped districts. San Jose, for example, was split into four districts in order to maximize the number of Latino voters in some seats. Democratic Rep. Zoe Lofgren’s San Jose district was expanded 60 miles south into Salinas to pick up Latino voters. It will go from 31% Latino to 51%. San Jose Mayor Sam Liccardo vigorously fought the fracturing of congressional representation, contending it would “sacrifice the interests of 1 million San Joseans.”
Fresno was fractured in thirds. Long Beach was split in two. San Bernardino and Riverside were divided up. So was tiny Hanford in the lower San Joaquin Valley. All in order to bring Latino voters into certain districts.
Colby Itkowitz of the Washington Post celebrated this:
A newly approved congressional map for California increases the number of majority-Latino districts in the state and creates more difficult terrain for Republican candidates . . . . Latino citizens of voting age make up the majority in 16 districts, up from 13 in the current map, according to an analysis by Paul Mitchell, a redistricting expert who runs the California-based Redistricting Partners, which consults on map drawing. . . . “On paper, the map here is great for Democrats,” Mitchell said.
As a Republican consultant told Skelton:
“Arms of districts were going out in all directions in order to separate Latinos and whites,” says Tony Quinn, a Target Book editor and redistricting expert who once was the Republican consultant on legislative remapping. “Community after community was torn to pieces in order to achieve ethnic districts. One district near LAX is held together only at low tide.” That’s Democratic Rep. Ted Lieu’s district. “When you see lines going in all kinds of crazy directions, that’s gerrymandering,” Quinn adds. “This wasn’t a political gerrymander. It was an ethnic and racial gerrymander.”
As the Wall Street Journal concludes, “Voters are being assigned electoral districts based in part on race or ethnicity. The idea is that voters of a particular race should be grouped together to increase their collective voting power.”
Whatever case can be made for racial gerrymandering in states such as Alabama or Mississippi where the alternative might be an entirely Republican caucus, in California it is nothing but a fig leaf for partisanship. Non-Hispanic whites are barely more than a third of the California electorate these days, so no special care needs be taken to prevent them from dominating the state through racial solidarity.
Then there is New York. The state adopted a redistricting commission in 2014, and the state’s voters in 2021 rejected a ballot initiative aimed at making a Democratic gerrymander easier. But leaving things in the hands of the commission could not overcome the power of politics. Hopelessly deadlocked, with both parties pointing fingers at the other’s intransigence, the commission submitted two sets of maps to the state legislature. The Democratic supermajority then promptly ignored them and rammed through a hyperpartisan Democratic gerrymander.
FiveThirtyEight rated the map as having 20 Democratic-leaning seats, four Republican-leaning seats and two highly competitive seats, a shift from the previous map (drawn without a commission, when Republicans still held the state senate) of +3 Democratic-leaning seats, -3 Republican-leaning seats, and -1 highly competitive seat. Princeton gave “A” ratings to the two maps submitted to the commission, but an “F” to the final map, which divides 34 counties and scores even lower for compactness (0.341) than the California map.
The story in Virginia had a different ending than in New York, but only because exactly the same thing happened first: The commission, newly established this redistricting cycle, dissolved into partisan bickering and was unable to produce a map after Democratic commissioners walked out. The state’s supreme court had to step in and appoint outside consultants to draw a map.
Nathaniel Rakich of FiveThirtyEight argues that commission maps this cycle have been, on balance, fairer than maps drawn by legislatures, but allows that they have done no better than legislatures at creating competitive districts. He cites additional examples of blue-state commission failures:
New Jersey[’s] map has a D+16 efficiency gap, indicating a strong pro-Democratic bias. But New Jersey’s commission is not exactly a model of nonpartisanship. Twelve of its 13 members are picked directly by state legislators or political parties (six by Democrats, six by Republicans), and after they failed to agree on a 13th member last summer, the New Jersey Supreme Court chose the Democrats’ preferred candidate. The commission eventually (and predictably) voted 7-6 for a map drawn by the commission’s Democrats.
On the other hand, Washington’s bipartisan commission very nearly crashed and burned . . . although the state Supreme Court ultimately bailed them out. The commission initially seemed to approve maps that had not yet been shared with the public (a violation of open-meetings laws) just before its deadline. However, the next day, the commission announced that it had missed the deadline by a matter of minutes, sending the map-drawing process to the Washington Supreme Court. The court eventually ruled that the commission had “substantially complied” with its mandate and accepted the map that the commission had drawn.
In some blue states, Democrats have simply dropped the mask. In Illinois, Democratic governor J. B. Pritzker promised a commission but backed off when the Democrat-dominated legislature balked. In Maryland, the Maryland Citizens Redistricting Commission drew up painstaking maps that were rejected by the Democratic legislature; there are ongoing lawsuits.
Naturally, while this sort of behavior is entirely consistent with the history of their party as detailed in my first installment, Democrats have postured themselves as innocent victims forced to gerrymander against their will. Russell Berman in the Atlantic in March 2021:
To hear Democratic leaders decry gerrymandering as part of their current bid to enact landmark voting-rights legislation, you’d think the centuries-old practice was a mortal threat to the republic. But political necessity could soon demand that Democrats drop their purity act. To keep their narrow House majority, they might have to deploy the tactic everywhere they can, and every bit as aggressively as Republicans do. The early maneuvering by New York Democrats is already revealing the party’s shaky commitment to its national anti-gerrymandering push, one that has long been rooted less in principle than the Democrats’ passionate message would suggest. What could impede the Democratic effort to make the most of its dominance in New York is not the fear of hypocrisy but the party’s internal politics.
That gerrymandering poses a danger to America is a relatively recent discovery for Democrats. Only after Republicans routed them in state and congressional elections in 2010 and redrew hundreds of districts in their own favor did Democrats express outrage, which reached a fever pitch when they won the nationwide vote in the next election but saw the GOP secure its second-largest House majority in 60 years. The ensuing Democratic campaign against gerrymandering pushed states like Colorado and Virginia to adopt independent redistricting commissions aimed at preventing politicians from choosing their own constituents. None of this stopped Democrats elsewhere from gerrymandering themselves. After the 2010 census, they drew a notoriously skewed congressional map in Maryland that left Republicans with just a single seat in the eight-member delegation.
As Berman observed this month:
Democrats have indeed been quiet about New York’s map, observing the unspoken rule that gerrymandering is to be discussed only by its victims, never by its perpetrators. [Eric] Holder last week convened a virtual press conference to tout his group’s success in securing fairer maps and challenging Republican attempts to gerrymander in the states they control. He offered a mild defense of New York’s district lines, saying that Democrats had followed census data and noting that even the maps proposed by Republicans on its redistricting commission would have resulted in Democratic gains. . . . Was Holder contending that New York’s map did not represent a partisan gerrymander? I asked him. He gave a long answer that studiously avoided any use of the G-word. “New York is a decidedly blue state,” he said. “There might have been things I would have done differently, but that map is far more defensible than what Republicans did in Texas, than what they tried to do in North Carolina, what they tried to do in Georgia.”
Not every state’s commission has failed to design a good map. But the experiences of states such as California, New York, New Jersey, Virginia, Washington, and Maryland suggest that the gravitational forces of politics will seep into the system one way or another. Like a water balloon, every feature of a commission that is designed to keep politics out in one way pushes it in another. The repeated record of commission failures suggests that ignoring the Constitution to impose a nationally mandated commission structure is a fool’s errand that will resolve none of our discontents over redistricting.