It's been a tough few weeks for gerrymandering reform. Two decisions in the closing days of the Supreme Court’s term, Gill v. Whitford and Abbott v. Perez, have raised barriers to proving claims of gerrymandering. With the retirement of Justice Anthony Kennedy, those barriers will only worsen. The writing is on the wall: It's time for trench warfare.
In Gill, a case concerning partisan gerrymandering in Wisconsin, the Court refused to address the legal theory that voters with a shared political affiliation can be harmed by a statewide pattern of baroque districting. Despite being presented with easy and clear mathematical tests to calculate the statewide impact of partisan gerrymandering, the Court insisted on a district-by-district analysis. Unfortunately, this piecemeal approach opens the risk of biased or incomplete remedies. Then, in Abbott, which concerned racial gerrymandering in Texas, the Court raised the bar dramatically on what it would take to prove discriminatory intent. Together, these two rulings are major setbacks for those who wanted the Court to limit gerrymandering.
With prospects for federal action on gerrymandering fading fast, it’s time to pursue reform through individual states. Such a federalist approach lacks the sweeping breadth of constitutional doctrine. But metaphorically speaking, if a damaged roof can’t be replaced entirely, it can still help to patch individual holes.
Using easy-to-use statistical tests, one of us previously identified eight states where major partisan gerrymandering offenses occurred in the 2010 redistricting cycle: Florida, Maryland, Michigan, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin. Somewhat surprisingly, every one of these “Egregious Eight” has a realistic path to avoiding or undoing a future partisan gerrymander after the 2020 census—without any help from the Supreme Court.
Here are four ways to attack gerrymandering at a state-by-state level:
1) Governors. This is the most straightforward political solution. In most states, the governor has a critical role in drawing new districts. And even though partisans can vitiate the power of the vote by drawing lines to encircle or split communities, they can’t put in the fix in a statewide vote for governor.
Voters this November elect the great majority of the nation’s governors to four-year terms. And four years gets us to the next wave of redistricting, which begins in 2021. Governors will have to sign off on new redistricting plans in Florida, Maryland, Wisconsin, and Pennsylvania. In all of these states, the candidate running in opposition to the legislature is, at a minimum, running competitively in polls. In the only state with a clear Democratic gerrymander, Republican governor Larry Hogan of Maryland is a strong favorite for re-election. That likely will prevent the Democratic legislature from gerrymandering districts as it did in 2011.
In neighboring Virginia, both parties are already likely to have a say over redistricting. Governor Ralph Northam, a Democrat elected in 2017, will have to sign off on legislative district maps produced by the Republican-controlled General Assembly. Virginia is notoriously gerrymandered: a 9.6 percentage point win in the popular vote by Democrats was not enough to give them control of the House of Delegates. Democratic districts were so packed that the median winning candidate did not even have an opponent. A bipartisan legislative map has the opportunity to untilt the playing field and give Virginia a fresh start.
2) State-constitution-based lawsuits. In the one bright spot in gerrymandering lawsuits this year, the Pennsylvania state Supreme Court ordered the congressional map to be redrawn. This was a big win in a state that typically splits its popular vote fairly evenly between Democrats and Republicans. Nevertheless, in the last three elections the Keystone State has sent 13 Republicans and only five Democrats to Congress. The map for this November, which does not cut up cities in creative ways, looks to have as many as nine competitive districts.
The U.S. Supreme Court declined to review the Pennsylvania case, on the grounds that decisions based on state constitutions are largely beyond their reach to overrule. In this way, reform in Pennsylvania was able to avoid running afoul of an indecisive or hostile Supreme Court.
Most state constitutions have a clause calling for free and fair elections. Some go further: Florida’s Fair Districts amendments provide detailed protections against partisan gerrymandering, and were used to successfully prosecute a court case that led to a redrawing of multiple congressional districts and a re-do of the entire state Senate map.
State court intervention is also possible in cases of racial gerrymandering. Previously, state courts have not intervened since the federal Voting Rights Act covered such cases. But as the Roberts Supreme Court has steadily chipped away at Voting Rights Act protections, both the need and the opportunity have arisen for state courts to address racially based offenses under versions of the Equal Protection clause found in state constitutions.
Many constitutions also have language that echoes the free-speech protections of the national Constitution. Such phrasing exists, as well as a potentially sympathetic state Supreme Court, in Michigan, North Carolina, Pennsylvania, and Wisconsin. A free-speech clause is important because Supreme Court Justice Elena Kagan has outlined a theory under which a whole political party is penalized for expressing its views. Under such circumstances, she wrote, a state political party can assert that it has suffered viewpoint discrimination, a violation of the First Amendment.
These statewide claims can take advantage of the flowering of statewide mathematical standards developed in the last few years to identify gerrymanders. And while the unanimous opinion in Gill shied away from embracing such statewide measures, it also acknowledged a point one of us made in an amicus brief: Such measures are so simple that they can be calculated by pencil and paper or a hand calculator.
3) Voter initiatives. Even in the best case, court rulings can only stem the worst gerrymanders because courts tend to defer to a state’s own legislative processes. Nothing, however, stops a state from reforming its own process—nothing, that is, except the tendency of legislators to preserve their own seats.
The way around that barrier is to go directly to the voters. About half of the 50 states allow voters to mount an initiative or referendum for direct popular vote. Such a route opens the possibility of creating a commission that takes redistricting power out of the legislature’s hands. Commissions established in Arizona and California have realized the hopes of reformers by creating competitive districts and enhancing representational fairness.
In May, Ohio passed a referendum establishing a congressional redistricting commission. The legislature can still intervene if the commission deadlocks, but the resulting lawmaker-created map would only be used for four years.
A stronger measure is on the ballot in Michigan this November. There, the citizen group Voters Not Politicians gathered several hundred thousand signatures for a measure that establishes a California-style commission, in which three groups of commissioners—Democrats, Republicans, and independents—must separately sign off on a plan. The initiative is on the ballot alongside other popular ideas such as a $15 minimum wage and marijuana legalization.
4) Legislation. Every one of the Egregious Eight is covered by one of the three options above. In some states, however, a gerrymander can be struck down by a court only after it is passed. To avoid such a protracted dispute, one last possibility exists: Legislatures will clean up their own acts.
This is less unlikely than it sounds. In 1980, the Iowa legislature overwhelmingly passed a law to establish a nonpartisan redistricting process. The motive that inspired this change was not necessarily idealistic: Both Republicans and Democrats feared being locked out of power in the next redistricting cycle. Still, passing a reform out of fear for one’s own skin is better than no reform at all.
Also, don’t underestimate the power of public opinion. This year has seen an unusually high wave of enthusiasm for redistricting reform. Previously a somewhat obscure subject, gerrymandering has drawn attention from grassroots organizations in multiple states. These activists can help pressure legislators into doing the right thing.
These four routes to reform are examples of the new role that federalism can play in democracy reform. States’ rights have long been used to justify anti-democratic actions, but state-level actions may also help repair one of American democracy’s longstanding problems.