Election Law Blog Essay

The Peril and Promise of Redistricting Reform in H.R. 1

UPDATE: On March 2nd & 3rd, the U.S. House of Representatives amended and passed H.R. 1 with changes that include many of the proposals below.

In 2019, House Democrats unveiled a sweeping electoral reform package, designated “H.R. 1” as a symbolic gesture of the bill’s importance.  With Republican control of the White House and Senate, the bill stood no chance of being enacted into law at the time, but it contained genuinely impactful proposals.  Fast-forward to 2021—with Democratic control(-ish) of the White House, Senate, and House—and H.R. 1 now stands a chance of becoming law.  Unfortunately, one part of the package may be turn out to be more symbolic now than it was in 2019: redistricting reform. 

H.R. 1’s redistricting reforms revolve around the creation of independent commissions and create a decennial timeline for the commissions’ work pegged to years “ending in numeral zero.”  In 2019, the effective date of the reform applied “with respect to redistricting carried out pursuant to the decennial census conducted during 2020 or any succeeding decennial census.” Now that we’re past the last year “ending in numeral zero,” however the most recently introduced version of H.R. 1 pushes off the effective date of the redistricting reforms until 2030

This puts redistricting reform in great peril.  Republicans won big in state legislatures in the 2020 elections, which means they will be drawing most congressional districts for the decade to come.  And with Rucho v. Common Cause clearing the way for even more radical partisan gerrymandering than the 2010 round, there’s a good chance that H.R. 1’s proposed independent commissions never see the light of day.  Will Democrats be able to preserve at least one lever of federal power over the next decade to prevent Republicans from repealing the package before it ever takes effect?  Maybe.  But why risk it?  And why let Republican (and Democratic) gerrymandering—with all its toxic effects (and immense litigation costs)—persist for another ten years in the meantime?

All of this is easily avoidable.  Democrats should take the redistricting criteria that the commissions are supposed to follow, see § 2413(a), move them up into Part I of Subtitle E, convert them into freestanding requirements for all congressional districts regardless of the entity doing the drawing, and clarify that those requirements are effective upon enactment.  There is longstanding precedent for this approach.  As the Rucho Court itself recognized, federal law used to require that congressional districts be compact and equal in population, and federal law today requires the use of single-member districts.

If Congress enacted freestanding redistricting requirements, neither commissioners nor state legislators could gerrymander congressional districts.  And if H.R. 1 passes before block-level census data is released (currently estimated to be July 31st), these criteria would offer some immediate protection for the coming decade, safeguard the switch over to independent commissions in 2030, and provide insurance after 2030 against the Supreme Court holding that Congress cannot “commandeer” state legislatures into creating commissions.

To be sure, statutory redistricting criteria must be given real teeth if state legislatures will be doing the drawing.  Many state constitutions require that districts be “compact,” but without firm limits or definitions such “constraints” often fail.  In Virginia, for example, the state supreme court held that its own constitution’s compactness requirement “does [not] require that compactness be given priority over other considerations, much less establish a standard to determine whether the legislature gave proper priority to compactness.”  Such vague criteria and judicial deference can make redistricting “requirements” meaningless—and, if Rucho is any guide, we should expect the Supreme Court to give substantial leeway to state legislatures in the absence of explicit congressional limits.

Similarly, H.R. 1’s prohibition on plans that “unduly favor or disfavor any political party” on a statewide basis, § 2413(a)(2)(A) could and should be made more specific.  One option would be to include outside limits on partisan asymmetry as well as safe-harbor provisions.  Plans that fall outside the law’s limits would be facially invalid, plans that fall within its safe harbors would be immune to lawsuits, and plans that fall somewhere in between could be challenged by private plaintiffs based on the specifics of the plan.  In designing safe harbors against partisan advantage, however, Congress should avoid protecting (and encouraging) “bipartisan gerrymanders,” which eliminate meaningful competition but perform well on partisan bias metrics by giving Democrats and Republicans equally entrenched “safe seats.”  Such a safe harbor might be attractive to politicians, but it certainly would not be #ForThePeople.

Finally, if the primary enforcement mechanism before 2030 is going to be judicial review, Congress should also more clearly state its remedial preferences under the Act’s civil enforcement provision.  The Supreme Court has deployed an increasing number of principles to govern redistricting remedies over the past few decades, all of which tilt the playing field heavily against voting-rights plaintiffs.  These include:

  • The Lipscomb principle: federal courts must give state legislatures the first opportunity to fix an unlawful plan.
  • The Abrams/Perry principle: federal courts remedies should be “guided by the legislative policies underlying [the state plan].”
  • The Upham principle: federal court remedies should be limited to the unlawful elements of the plan.
  • The Purcell principle: federal courts “should not issue orders that change election rules in the period just before the election.”
  • The Abbott principle: federal courts must “presume” the “good faith” of the state legislature.
  • The Covington principle: federal courts’ remedial authority is limited to the injuries alleged in the case and does not extend to other unlawful elements in the plan (or its replacement).

Taken together, these principles make it simple for state legislatures to evade consequences for unlawful plans: design an unlawful plan, slow-walk litigation to get near the next election, use Purcell to get past the next election, replace the old plan with a plan that is unlawful in a new way, and restart the cycle. 

To avoid such gamesmanship, Congress should set out explicit remedial preferences in H.R. 1.  For example, if a challenge to a redistricting plan is brought within a certain time period, courts should disregard Purcell (to prevent the state from slow-walking litigation).  And if a judge holds a plan unlawful, the court should proceed to draw its own plan without giving the state a “do over” and without regard to any policies reflected in the state’s original plan.  Instead, the court should follow the procedures set out in §§ 2421 & 2422 to draw its own plan that conforms with the statute’s criteria.  Although H.R. 1 does expedite redistricting litigation and appeals, if legislators know there will be no “second bite at the apple” H.R. 1 could help prevent partisan overreach in the first place.

These recommendations reflect the bare minimum Congress should change about H.R. 1 if it is serious about redistricting reform.  If Congress wants to realize the true promise of H.R. 1 and enact redistricting reforms that are truly #ForThe People, however, it should add two more components to the bill. 

First, Congress should include a parallel subtitle that prohibits partisan gerrymandering of state legislative districts and sets out safe harbors to ensure sufficiently fair districts.  This subtitle could charge independent commissions with the task of state legislative redistricting as well, but the prohibition should be freestanding from both the congressional redistricting clauses and from the commission structure itself.  And while the congressional redistricting subtitle grounds its constitutional authority in the Elections Clause and the Fourteenth Amendment, the state legislative redistricting subtitle could ground its constitutional authority in the Republican Guarantee Clause and the Fourteenth Amendment. Partisan gerrymandering undermines a core feature of republican government—representativeness—and the Supreme Court has long claimed that enforcement of the Republican Guarantee Clause should be left to the political branches.

Second, Congress should consider putting the House on a path towards multimember districts elected through a proportional voting method like ranked-choice voting.  This could take a number of different forms, from a mandatory approach (such as H.R. 4000, 116th Cong. (2019)), to a permissive approach (removing the single-member district requirement to let states/commissions experiment with multimember districts), to a more exploratory approach (establishing a commission to study such reforms and report back to Congress before, say, 2025).

These final two recommendations are not necessarily novel.  Professor Nick Stephanopoulos made similar suggestions back in January 2019 in response to the first version of H.R. 1, and organizations like FairVote have touted the benefits of multimember districts for years. 

Yet, these recommendations are more urgent than they have ever been.  The deadly insurrection at the Capitol on January 6, 2021 revealed just how deep and how dire the defects in our political system have become.  State legislatures are engaging in increasingly antidemocratic power plays at the state level, mainstreaming norm-breaking behavior and destabilizing our constitutional system as a whole.  Restoring the small “d” democratic (and small “r” republican) incentives of state legislators across the board would go a long way towards improving accountability and stability throughout our entire political system.

And while eliminating gerrymandering would be a vast improvement over the status quo, there are limits to how representative any Congress built on single-member districts can be—even districts drawn by independent commissions. On a state level, single-member districts submerge the power of dispersed political minorities.  Consider Massachusetts: despite its moderate Republican governor, all nine House Representatives are Democrats.  Almost any single-member districting plan will reflect this skew because Republicans are spread relatively evenly throughout the state, making them a minority in every district.  On a national level, meanwhile, single-member winner-take-all districts create an overall conservative bias.  And so long as our system continues to make minoritarian capture of government possible, Republicans will continue being drawn towards the antidemocratic wing of their party.  Moving over time to multimember districts would fix these flaws rather than just mitigating their harm.

Congress has a rare opportunity at a pivotal moment in American history to address our democracy’s most fundamental and damaging electoral pathologies.  H.R. 1 has the potential to set us on a path towards a fairer, more representative, more accessible, and more accountable kind of politics, but the devil is in the details.  If Democrats enact H.R. 1 as is and put off redistricting reform until 2030, they may find out that they are eight years too late.