Prospects Brightening for Redistricting Reform

Republicans had stunning success after the 2010 Tea Party wave election tilting the rules of our election processes in their favor. One major part of that was extreme gerrymandering after the 2010 Census, taking advantage of increased Republican control of state legislatures elected in 2010. The lopsided congressional and legislative delegations have led many analysts to wonder whether even a blue “wave election” could flip enough seats for Democrats to take control of either house of Congress or very many state legislatures.

But there are a number of reasons to think that the times may be changing. The Virginia off-year election showed both the challenge and the possibilities. Democrats picked up all statewide offices, and won roughly 224,000 more votes than Republicans in state legislative races. Extensive gerrymandering has almost certainly left the Republicans with narrow control of the House of Delegates; with anything close to fair districting, Democrats would have won a clear majority of seats. However, it also showed that major election victories can be ground-shifting even with severely gerrymandered districts.

At a recent conference at the Harvard Kennedy School’s Ash Center, Chris Jankowski, a Virginia-based Republican consultant who directed the wildly successful “Operation REDMAP” gerrymandering effort after the 2010 elections, insisted that the Red “wave election” of 2010 was more important than the gerrymandering. Jankowski, who worked for defeated Republican candidates in Virginia, quipped, “a decade of great gerrymandering, wiped out in one day.”

Let’s hope so. The possibility of a blue wave election in 2018, and especially in 2020 could prefigure a huge change. In addition, other recent developments on several fronts suggest a far more hopeful picture, both for good government and for fair partisan representation.

The Supreme Court has now heard oral arguments in the Gill v. Whitford case emanating from Wisconsin. This case could be the first time the Court may rule substantively that partisan gerrymandering, in addition to racial gerrymandering, is an unconstitutional violation of the rights of voters to have their voices count equally and meaningfully in representation. While none of the lawyers present at the conference, including those working on the case, would make a prediction, there seemed to be some guarded optimism that the Court, and in particular Justice Anthony Kennedy, might at least set “guardrails” on what is an acceptable level of partisan manipulation. It is noteworthy that an enormous number of amicus briefs have been filed in support of reform.

There are also significant reform efforts moving forward in a number of states where partisan gerrymandering was most egregious after 2010:

·      In Ohio, where a successful and bipartisan ballot initiative in 2015 created a nonpartisan process and established criteria requiring competitiveness for redistricting in state legislative districts, another initiative is heading toward the November ballot to add congressional districts to the plan. This has prompted the Ohio legislature to potentially support placing their own version of reform on the 2018 ballot as well.

·      In Michigan, in a veritable grassroots groundswell, Voters Not Politicians has, in a remarkably short time, collected almost the 315,000 signatures required to place an initiative on the 2018 ballot creating an independent redistricting Commission. While the effort has some procedural hurdles to overcome in getting to the ballot, it has demonstrated a real hunger for reform and serious grassroots support.

·      In Missouri, a citizen initiative covers a range of democracy issues including anti-corruption measures, campaign finance limits, and state legislative redistricting. To date volunteers have collected around two thirds of the signatures necessary. Corruption and partisan infighting are front-page news in Missouri, so this combination of anti-corruption and redistricting offers a comprehensive solution that is garnering broad public support.

·      In Pennsylvania, there has been a grassroots effort, including Fair Districts PA, focused around a constitutional amendment to create an independent districting commission. By the middle of 2018, that effort will have run out of time (constitutional measures must be passed by two different legislatures then voted on by the public), but there remains the opportunity to institute stronger criteria and transparency. While progress has been limited so far, the results in Virginia, the potential re-election of Governor Tom Wolf, and a sympathetic state Supreme Court are strengthening the prospects for reform in the legislature.

·      In Virginia, many of the newly elected House of Delegate members talked about the need to make Virginia’s democracy more accountable to citizens, including redistricting reform. In advance of the legislative session, a number of democracy bills are being proposed. Adding fuel to the reform fire is the expected positive decision from the Supreme Court in Bethune v. Hill requiring that a number of the state legislative districts be redrawn to overcome racial gerrymandering. There is already a grassroots movement to hold the legislature accountable as they go through that process, including in the areas that will be most impacted.

·      North Carolina, ground zero for so many election battles, has been in the midst of ongoing fights over both congressional and legislative districts since they were drawn in 2011. After being declared a racial gerrymander by the courts, the state redrew their congressional lines along an overtly declared partisan gerrymander in time for the 2016 elections and are now in the process of doing the same for their state legislative lines. The robust resistance to all this goes on, in the courts and in the political arena; whether it can have legislative impact remains to be seen.

The effort getting the most attention is the National Democratic Redistricting Committee (NRDC), created by Eric Holder and led by Kelly Ward. The NDRC has raised more than $10 million and is gearing up for efforts around the country. But there are a number of other efforts (by no means all) well worth mentioning:

·      Organizations long in the field like Common Cause, the Campaign Legal Center, the NAACP LDF, the ACLU, the Brennan Center for Justice, and the Lawyers’ Committee for Civil Rights are ramping up the funding and staffing of their efforts for legislation, ballot initiatives, and litigation in a number of states.

·      There are several efforts to support efforts for a full and fair count in the 2020 census, which are gaining business and bipartisan support. One is a grouping of foundations far beyond the usual progressive names, led by Karen Narasaki. The Redistricting Reform Project, coordinated by the New Venture Fund and led by Cathy Duvall, is following redistricting efforts around the country and supporting promising reform efforts on a nonpartisan basis.

·      As mathematical and algorithmic sophistication has grown exponentially, a group of mathematicians called the Metric Geometry Gerrymandering Group, led by Professor Moon Duchin of Tufts, has been organizing and training mathematicians to help in court cases and on map-drawing efforts.

·      One major arena to watch is what may happen in state legislatures. Some things may happen next year, but the critical year could be 2019 if the 2018 elections continue on the path prefigured by the 2017 results. Up until now, legislatures controlled by Republicans (or in the case of Maryland, by Democrats) have generally shown little inclination to give up their advantages for the principle of a better democracy. But a new set of calculations is beginning to appear and could emerge seriously after next November’s elections.

If you are a Republican legislative leader in North Carolina, or Michigan, or Pennsylvania, not to mention Virginia, and your margin of majority has shrunk as a result of the 2018 elections, would you really want to bet the farm in 2019 that you will still be in the majority after the 2020 presidential election? And if not, would it not be a prudent move to reach a bipartisan deal in 2019 to create a fair process of redistricting in 2021 so both parties can compete on an even playing field in 2022? This argument has been made in North Carolina and other places, without success thus far. But the conditions for its acceptance could look very different after next November.

It is clearly far too early to project all that may happen on this issue over the next several years. The Gill case could be a bust. The momentum towards the Democrats could erode between now and 2018. Ballot initiatives can be derailed legally or lost at the ballot box. Legislatures could, as they so often do, fail to act even as the future is viewable. 

Potentially the biggest problem could be a Census in 2020 that dramatically undercounts people in communities of color, immigrants, and others in “hard to count” places. A continued undermining of the Census through underfunding; suspicion on the part of immigrant communities and the absence of adequately resourced community partnerships; incompetence or malfeasance by Trump appointees; or calculated interference from Congress, could all result in a Census that in and of itself leads to a distorted electorate.

However, if the resistance energy engendered by Trump and the Republicans continues to fuel efforts at democracy reform, and the results of the 2018 elections are as the tea leaves of 2017 suggest, then regardless of the outcome of the Gill case, the possibilities for reform will jump dramatically in 2019, and the district-drawing of 2021 could look a whole lot different and more promising than 2011. At the very least, progressives and people who care about our democracy should not assume that redistricting reform is a hopeless cause, and should get to work at organizing for real reforms, and working on legislative elections, as a major part of a pro-democracy strategy.