Gerrymandering as a concept is as old as the Republic. In the early nineteenth century, Governor Elbridge Gerry of Massachusetts redrew his state’s legislative districts to benefit the Democratic-Republicans over the Federalists. One of the districts was so malformed that critics said that it resembled a salamander. Thus, the word “gerrymander” was born.
For hundreds of years, state legislatures would often abuse their powers to draw new districts, systematically overpopulating or under-populating districts to benefit their political parties or draw contorted lines to disenfranchise political and racial minorities. Numerous court cases were brought that had some success in addressing the worst abuses, but to this day, the U.S. Supreme Court has held that partisan gerrymandering does not violate the Constitution.
As the redistricting wars began to heat up and states began to see redistricting as an important part of obtaining legislative majorities, gerrymandering became increasingly blatant. Books with titles like Rat F**ked: The True Story Behind the Secret Plan to Steal America’s Democracy began to proliferate discussing gerrymandering’s ability to disenfranchise voters.
To combat these abuses, states began to create redistricting commissions: independent boards that would draw district lines ostensibly free of partisan bias. Rather than politicians choosing their voters, commissioners would allow voters to choose their politicians. Arizona, California, Colorado, Utah, Maryland, and New York created their own commissions with radically different structures, but all aimed at democratizing the redistricting process. As of today, 20 states use some form of non-partisan or bipartisan redistricting commission to draw their district lines.
Despite their popularity and recent proliferation, commissions have had mixed results. Some commissions, such as the California commission, have received generally positive reviews, successfully gathering public input and implementing new district lines without legal challenge. Others, like New York and Virginia, have failed to pass any district lines at all due to structural issues. Still others, like Utah and Maryland, successfully passed new district lines only for state legislatures to override their lines and impose partisan gerrymanders.
The success and failure of these commissions can often be attributed to the structure of the commissions. Based on my experience as chair of the New York State Independent Redistricting Commission, I can point to several factors that lead to failure: (1) commissions cannot be evenly split between Democrats and Republicans, (2) commissions should have binding authority to implement new district lines independent of state legislatures, and (3) commissions should not be composed of current elected officials or political appointees.
Commissions Cannot Be Evenly Split Between Democrats and Republicans
Redistricting commissions cannot function if they are composed of equal numbers of Democrats and Republicans. The New York State Independent Redistricting Commission was split evenly between five Democrats and five Republicans. On top of this, the New York State Constitution required seven votes to do anything substantive. The result was total paralysis. To do anything, the New York commission functionally needed every vote to be unanimous. When the time came for us to draw new district lines, it should be no surprise that we deadlocked. Similarly, the Virginia Redistricting Commission, composed of eight Democrats and eight Republicans, also split along party lines and was unable to reach an agreement. Redistricting is a fundamentally political process. It should be no surprise that evenly divided commissions will have massive difficulties reaching an agreement.
To remedy this issue, California’s redistricting commission is composed of five Democrats, five Republicans, and four commissioners from neither major party. Similarly, the Michigan redistricting commission is composed of four Democrats, four Republicans, and five non-affiliated commissioners. Unlike New York and Virginia, these states did not fall victim to partisan gridlock and were successfully able to pass new district lines.
Commissions Should Not Be Merely Advisory
In addition, functional commissions are not merely advisory; their decisions should be final. Many states, New York included, allow state legislatures to override commissions even when the commissions are able to reach an agreement. In Utah, the redistricting commission was able to reach an agreement, creating a congressional district centered specifically on Salt Lake City. The Republican-controlled state legislature then overrode the redistricting commission and cracked the Salt Lake City district, dividing it into four congressional districts and ensuring Republican control of every congressional seat in the state. The Maryland redistricting commission was similarly overridden by its state legislature.
For commissions to have any impact whatsoever, they need to be able to draw lines that have the force of law. While commissions can serve an information-gathering purpose, if state legislatures can override the lines passed by a commission, then commissions serve no purpose. Numerous commissions, including Colorado, Arizona, and California, have their lines become law without any intervening authority.
Commission Members Should Not Be Elected Officials or Political Appointees
If the purpose of redistricting commissions is to ensure that self-interested actors are not drawing the lines, then commissions should not be composed of either sitting elected officials or political appointees. Both the Virginia and Ohio redistricting commissions had sitting state legislators serve as commissioners. In Virginia, one state senator publicly amended his own district lines to include his residence. Similarly, the president of the Ohio State Senate served on his state’s commission and was accused of consistently attempting to protect incumbent legislators.
On the New York commission, the Republicans chose all former state legislators or former state legislative staffers. My counterpart, the Republican Vice Chair Jack Martins, was a former state senator. It was clear to me throughout the process that he was interested in running for office again. Over and over, we could not come to an agreement with the Republicans on districts where he would potentially run. Two months after the commission deadlocked, Martins announced his candidacy for the New York State Senate in a district he himself had been trying to draw mere weeks before.
To alleviate this issue, the California state auditor solicits applicants from the general public, reviews and interviews potential commissioners, and then conducts a lottery to select the final members. California provides a useful example of a truly citizen-led independent process.
What states should we look to as models? The California, Colorado, and Michigan commissions are the gold standards, successfully drawing lines that have gained generally favorable reviews. They are not bogged down by these procedural issues; they have independent non-politically appointed commissioners and have the powers to implement lines independent of their legislatures.
Similarly, the For the People Act currently before Congress would require the creation of independent redistricting commissions for all states. In addition to banning partisan gerrymandering (and creating a statistical test for doing so), the act would require that states create 15-member redistricting commissions, composed of five Democrats, five Republicans, and five independents, thus avoiding the potential for gridlock. These commissioners would be selected through a process similar to California’s, with some commissioners picked at random and others picked by the randomly picked commissioners, but still preserving a citizen-led process. The For the People Act implements a gold standard commission that avoids the procedural issues that have mired other states’ commissions and illustrates the need for uniform national reform.
Redistricting Commissions Must Be Implemented Nationally
States should not introduce redistricting commissions piecemeal. If the purpose of redistricting commissions is to prevent abuse by one party or another, then it would be fundamentally unfair for one party to introduce fair redistricting while another preserves the right to gerrymander. That is unfortunately what has occurred in the United States today. Democratic states such as California and New York are far more likely to implement redistricting commissions, while Republican states like Florida, Georgia, and Texas push through Republican gerrymanders. While the Republican Party has no monopoly on gerrymandering, this “unilateral disarmament” by the Democratic Party is creating a fundamentally uneven playing field on the national level. Fair redistricting cannot be the sole province of democratic states; all states must join together and have the same standards for redistricting. Otherwise, the system will never work.
Redistricting commissions are not a panacea. Structural flaws have sounded the death knell of multiple redistricting commissions this past redistricting cycle. However, the ultimate goal of redistricting commissions—a fair redistricting process where people choose their politicians and not the other way around—is within sight. Washington, D.C., and states need only learn from the experiences of failed redistricting commissions and avoid the structural flaws that have doomed such efforts. Meanwhile, these reforms must be adopted on a national level, not in some states and not in others. Failure to adopt a national standard will only doom us to a gerrymandering death spiral. Only together can we ensure fair districts for all Americans.