Redistricting Reform Gains Steam

State legislatures are constitutionally obligated to redraw congressional districts every 10 years. But now, with an increased awareness of the potential for unfairness and abuse, voters are starting to push back.

Most states make the redistricting decisions themselves, and accusations of gerrymandering – drawing the maps to unfairly preserve majority advantage – are frequent.

Since the most recent census in 2010, lawsuits challenging congressional, state Senate or state legislature redistricting maps have been filed in 38 states; there were 37 such challenges following the 2000 round of redistricting.

Last month, the U.S. Supreme Court considered arguments over whether the Democrat-designed map in Maryland could be reviewed and potentially thrown out by a state panel.

At the heart of that dispute is the fact that the state's political affiliation, currently 54.3 percent Democrat and 25.8 percent Republican, has changed only marginally since Democrats held a 57 percent to 29.7 percent advantage in 2000. And yet Maryland's eight-member congressional delegation has gone from being evenly split between the parties 15 years ago to a 7-1 Democratic advantage now after two rounds of redistricting under Democratic governors and legislatures. One of the districts, which have survived reviews by federal courts, was recently described by a federal judge as resembling "a broken-winged pterodactyl, lying prostrate across the center of the state."

"Most people know that Maryland is home to some of the most egregiously gerrymandered districts in the country," says Todd Eberly, a political science professor at St. Mary's College in Maryland.

Beyond Maryland, a Florida judge has recommended a plan after two maps drawn by the Republican-majority legislature were found unconstitutional under "fair districts" rules voters passed in 2010. North Carolina judges heard testimony in September that districts historically represented by African-Americans in Congress were drawn by the GOP to encompass an even larger minority population allegedly in order to reduce their clout elsewhere.

But if lengthy legal challenges are expected after each redistricting, voters and reformers may be thinking bigger ahead of the next time around. Some states are looking to follow the lead of California and Arizona and relieve lawmakers of the duty of redistricting, hoping to depoliticize the process and bring fairer representation.

A public vote earlier this month in Ohio, where citizens overwhelmingly supported the expansion of a redistricting panel drawing districts for the state legislatures, has also been hailed as a significant step forward by reformers. After initiatives most recently failed in 2005 and 2012, the new agreement ended up gaining the support of both parties. It adds two additional members to the five-member panel and requires at least two of the minority-party appointees to approve the map in order for it to take effect for a full 10-year period.

As in Ohio, voters in several other states have established or expanded independent commissions that, unlike many panels formed before 2000, don't include elected officials.

"People are skeptical that legislatures would ever give up power," says Michael Li, counsel at the Brennan Center for Justice, who focuses on redistricting. "Historically, reform has to be done by ballot initiative, basically bypassing the legislature."

Already, movements to establish such panels by popular vote are underway in Illinois and and Michigan, and a proposal is under consideration to expand a commission from five members to nine in Arizona, which this year saw the Supreme Court reject a challenge to its commission and rule that citizens had the authority to vote to form an independent redistricting panel. But not all states have the option of voter-driven reform; fewer than half have constitutions that permit ballot initiatives.

One of the biggest challenges in drawing electoral maps, even with an eye to fairness, is that it becomes difficult to protect diversity in representation while maintaining competitiveness.

Minority groups long opposed reform, fearing that the resulting efforts would dilute their populations and end with fewer minorities elected. But they have been forced to reconsider, following the Supreme Court's 2013 decision to strike down the part of the Voting Rights Act that requires certain states to obtain advanced federal approval before making electoral changes, including to maps, that might have an adverse effect on minorities.

"There's a recognition that one of the tools that was used to curb excesses is gone," says Nathaniel Persily, a constitutional law expert at Stanford Law School. "Reform through legislative process may be more necessary."

California, where voters approved the creation of a 14-member independent commission in 2008, seems to have set the standard.

"Districts make more geographic sense and are more competitive, there's more minority representation," Li says. "It wasn't charged with considering political outcomes, it was charged with keeping communities together."

At the federal level, ongoing battles over maps could have ripple effects almost immediately, with incumbents facing the prospect of being drawn out of their districts. But for some reformers, these are incremental changes that fail to create the changes necessary to bring about real fairness in representation.

"Ohio is not going to become a bastion of competition," says Rob Richie, executive director of FairVote, an electoral reform nonprofit. "And California is admirable in many ways, but if you look at the congressional districts, there was the same number of landslides [after reform]."

Richie points out two major flaws in current efforts: that a state-by-state movement inherently disadvantages reformers, and that the current system is inherently prone to gerrymandering.

"If you create districts where racial minorities can win, you have safe seats," he says. "But if you create competitive districts, you may not get fair representation."

Instead, FairVote advocates for a return to larger districts, with representatives selected by voters who are allowed to choose multiple at-large candidates, the way many city councils and school boards are elected.

"It creates opportunities for both parties to win everywhere," he says.

Li agrees that some kind of national reform effort may be necessary.

"If, for example, Illinois stopped gerrymandering but you still have the gerrymander in Texas, [Illinois] wonders why it's unilaterally disarming," he says. "Doing it nationally, where everyone plays by the same rules, might be in some ways easier than doing it state-by-state."

In Maryland, where Republican Gov. Larry Hogan is now recommending the formation of an independent panel to take redistricting power out of the hands of the legislature, state lawmakers have argued the reverse as a reason for drawing their own contorted districts. Former Gov. Martin O'Malley, a Democratic presidential candidate, has defended the map while other prominent Maryland Democrats point to similar situations in GOP-controlled states. In Pennsylvania, Democrats have a 12-point party registration advantage but have only five of the state's 18 congressional seats. In Texas, which has nonpartisan voter registration, Republicans hold 69 percent of House seats – despite Gallup polling earlier this year in which 41.3 percent of respondents said they were either Republican or lean Republican compared to 37.4 who identified with the Democratic Party.

"It's sort of a ridiculous argument," says Eberly. "It's akin to grade school kids saying, 'He started it.'"

Eberly says the Maryland court case may provide the impetus to pass national reform, thanks to an opinion Justice Anthony Kennedy wrote in 2004 that a map could be ruled unconstitutional if it is found to violate the First Amendment by giving "disfavored treatment" to some voters because of their political views.

That's the basis of the argument opponents have made against Maryland's map, and if the justices agree, the ramifications for district maps nationwide could be huge.

"If [the Supreme Court] were to decide that political gerrymandering violates the First Amendment, then I think you would see Republicans scurrying to try to pass some kind of national reform," Eberly says. "Lest they completely lose control of the process, it could lead to the overturning of district maps all across the country."