Now that Democrats have captured the House, a wide array of policy reforms are suddenly feasible. These reforms won’t become law, of course, since Republicans continue to control the Senate and the Presidency. But the House can still pass them—and thus lay down markers for a future Democratic Congress and show the American public the kinds of ideas that Democrats support.
In this post, I want to explore one area where the Democratic House could and should legislate: redistricting reform. Congress has regulated congressional redistricting since the 1840s, so its authority to act in this field isn’t in doubt. The need for Congress to intervene is also undeniable. The current cycle has seen the most severe and the most one-sided gerrymandering in modern American history. And things will only get worse in the 2020 round of redistricting as voters become more partisan and mapmaking technology grows in sophistication.
To start, then, what form should a House bill take? There are three basic options. First, a bill could require state legislatures to use certain criteria when they draw district lines. Second, a bill could both mandate these criteria and compel states to cede control of redistricting to a bipartisan or nonpartisan commission. And third, a bill could impose the criteria, authorize lawsuits to enforce them, and provide a safe harbor from litigation to states that choose to employ commissions.
Of these possibilities, I tentatively support the second one. Line-drawing criteria alone are a weak check on the nearly irresistible incentive of legislators to gerrymander in their party’s favor. (Witness the shenanigans that unfolded in Florida this cycle after a voter initiative created a new set of mapmaking requirements.) And as between requiring commissions and merely offering states certain advantages if they adopt them, I think the direct approach is preferable. It ensures consistency from state to state, prevents self-interested politicians from even trying to gerrymander, and avoids fostering still more redistricting litigation.
Next, which criteria, exactly, should be used? There’s a consensus in favor of traditional requirements like compactness, respect for political subdivisions, and respect for communities of interest. But what about barring line-drawers from deliberately benefiting or harming either major party, or affirmatively requiring them to pursue partisan fairness? A prohibition on partisan intent is necessary, in my view, because it’s perfectly possible to comply with traditional criteria while still aiming to gerrymander. Even better, I think, is an explicit goal of treating the major parties symmetrically in terms of how their votes translate into seats. In a hyperpartisan age like ours, maps’ partisan consequences are probably their most salient features. A partisan fairness criterion thus prevents mapmakers from stumbling—even in good faith—into a plan that’s significantly skewed in one direction or another.
Third, which legislative bodies should a House bill address? Congress only, Congress and state legislatures, or federal, state, and local assemblies? It’s important, in my opinion, for state legislatures to be covered. They exercise jurisdiction over vast swathes of public policy, meaning that democracy is seriously imperiled when they’re gerrymandered. State legislatures also (typically) draw congressional district lines, so unless their distortions are corrected, those biases can easily spill over into House maps. But I don’t think it’s as critical for a bill to extend to local legislatures. City, county, and other substate bodies have much less authority than sovereign states—as a legal matter, in fact, they’re mere arms of the state, with which the state can do as it pleases. Localities also tend to be heavily Democratic or Republican: the kinds of places where partisan gerrymandering has the least impact because it can’t change which party is in charge.
But would a bill be constitutional if it, say, required states to use commissions and to achieve partisan fairness, at both the congressional and state legislative levels? The question is easy with respect to congressional redistricting. Under the Elections Clause, Congress has near-plenary power over federal elections. This power surely includes specifying how, and by whom, House maps are designed. Because the Elections Clause doesn’t apply to state legislative races, though, Congress would have to find another constitutional provision under which to regulate them. The Fourteenth Amendment is the obvious place to look. In a 2004 case, every Supreme Court Justice agreed that severe partisan gerrymandering violates the Amendment’s guarantee of equal protection. (The Justices’ disagreement was over whether courts can reliably distinguish valid from invalid plans.) Congress also has the authority to enforce the Amendment through appropriate legislation.
The dispositive issue is therefore whether a bill along these lines is an appropriate way to fight gerrymandering—in legalese, a congruent and proportional response to the underlying constitutional problem. I think it is. The underlying problem, as I noted above, is urgent. In the modern era, gerrymandering has never been as extreme and as one-sided as it is today. A requirement that states use commissions and pursue partisan fairness is also well-tailored to solving this problem. A properly structured commission is highly unlikely to try to manipulate district lines in either party’s favor. And a partisan symmetry criterion prevents unintentional gerrymandering too: ending up with a skewed map because nobody bothered to check how the parties would fare under its boundaries.
Lastly, is it politically realistic for the House to enact redistricting reform? Ordinarily it isn’t. In general, the House majority party benefits from gerrymandering, and so has no interest in curbing the practice. (Consider how anti-gerrymandering bills did under Republican control of Congress. They came nowhere near a floor vote.) But we’re about to enter an unusual period in which the House majority party is the victim of gerrymandering, and had to overcome this obstacle to win House control. This is just about the most auspicious scenario imaginable for reform. Democrats should be acutely aware of how gerrymandering has undermined their electoral prospects. They should know, too, that if they fail to act, their newfound majority could soon evaporate as Republicans’ structural advantages reassert themselves.