No Contest: The Case for Independent Districting Commissions




The shameful political gridlock played out in Washington by our elected representatives which led to the recent shutdown of the federal government will likely continue in January when the next showdown occurs over the annual budget. The lack of common ground and partisan extremism results in a continuous can-kicking rather than concerted effort across the political divide to find solutions or at least resolutions. The average American observer has probably come to a realization that voters should “throw the bums out” since Gallup has measured its two lowest ever approval ratings of Congress in the past year. Earlier this month a mere 11% of Americans had a favorable view of the national legislative branch and even that is an improvement over the pitiful 10% recorded in February and August of 2012. (http://www.gallup.com/poll/165281/congress-job-approval-falls-amid-gov-shutdown.aspx)  Although the reactions towards Congress may reflect some partisan opinions about the Republican majority in the House of Representatives or Democrats in the Senate, when respondents are asked about their own representative only 44% are favorably inclined which is well below historical Gallup polling. However, in the elections of 2012 a whopping 90% of House members and 91% of Senators who attempted re-election were voted in. Is the voting public schizophrenic, forgetful, or foolish? What happened?

Redistricting did not really become part of normal domestic political considerations until a series of U.S. Supreme Court decisions in the 1960s (i.e. Reynolds v. Simms) established the “one-person-one-vote” principle with the outcome that Congressional and state legislative districts had to each be of the same general population.  Although there are a multitude of reasons for the shambles our political system is in—apathy, too much influence by moneyed interests, winner-take-all voting system, lack of ballot choices limited to the two major parties, etc.—the gerrymandering of electoral districts through redistricting schemes into partisan camps is having a hugely negative effect on the ability to raise opposition or more moderate voices for compromise.

While some form of Gerrymandering has taken place throughout our history, we are now reaping the harvest of what results when widespread attempts to manipulate district boundaries to give an advantage to one political party, race, or class over others. These situations are occurring wherever a majority party seeks to keep certain districts “safe” from political competition. Operatives can aim to pack a certain demographic group into one district to prevent their influence in other districts or “crack” them into more than one district to lessen their effectiveness in any specific district. With a system like that of the United States in which there is only one winner per election (unlike the majority of democracies which have at least partly or totally proportional systems) there is a strong incentive to create an advantage for a majority partisan group.  Often a majority party might even cut a deal with the opposition party to keep some of their districts safe in order to quell opposition to other attempts the district-drawers might make to use their voting advantage. These kinds of shenanigans can legally take place, because in most places in the U.S. the state legislature draws the boundary lines of the districts representing their own body as well as for those of federal offices.

Although there may be special occasions in which redistricting may be pursued, new districts are generally created or amended every 10 years after the latest U.S. Census. This process has often been hugely controversial and contentious in many states. The “fox guarding the hen house” implications should be obvious for all to see.  The bitterest outcome of creating Gerrymandered and packed districts is what we’re currently seeing in Congress: politicians who don’t seek compromise or even resolution because the opposition party’s presence in their district has been purposely diluted and is unlikely to get any momentum to mount a challenge. In fact, some incumbents remain deeply partisan to prevent even more extreme ideologues in their district from opposing them.

Nate Silver’s “Five Thirty Eight” blog in the New York Times produced a chart after the 2012 elections showing the following analysis of Congressional districts (reading across from the political Left to the political Right): 117 “Landslide” Democratic; 39 “Strong” Democratic; 24 “Lean” Democratic; 35 “Swing”; 29 “Lean” G.O.P.; 66 “Strong” G.O.P.; 125 “Landslide” G.O.P. [http://fivethirtyeight.blogs.nytimes.com/2012/12/27/as-swing-districts-dwindle-can-a-divided-house-stand/?partner=rss&emc=rss] This means that potentially as little as 8% of Congressional districts have any hope of political competition. Even if one maintains that the “leaning” districts may have just enough possibility through, say, an (un)likeable candidate, single issue interest arising, or demographic pattern changes to become swing districts at some point, that still would only raise the chances up to about 1 in 5 districts where the outcome might be in doubt.

The lack of viable political party choices in the U.S. also means that the real business of elections take place in the intra-party primaries and straw polls. Party loyalists are the ones most likely to contribute and vote in these primaries, which usually means producing candidates who will support the “party line”. While it’s not surprising or even wrong that a Democratic or GOP nominee would support his or her party platform, with an all-time high percentage of Americans (40%) declaring themselves to be political independents [http://www.gallup.com/poll/159740/democrats-establish-lead-party-affiliation.aspx] fewer Americans than ever are involved in the selection of candidates. This process continues with low voter turnout which, among other things, indicates lack of interest by independents and moderates for the nominees minted by either party’s insiders.

As last autumn’s Election Day arrived Donna Cassata writing in the Denver Post noted that the polarized and dysfunctional 112th Congress managed to pass only 196 laws “compare that with the 460 laws of President George W. Bush's two years with a Democratic Congress or the Watergate-era 649 laws”.

So how can we develop a system where voters can pick their candidates of choice rather than candidates picking voters of their choice? Section 2, Clause 3 of the U.S. Constitution grants states the authority to determine voting districts. Short of an unlikely Amendment to change that power (and to what end?) Congress can do little about districts created or altered for partisan reasons. As beneficiaries of the current system there would be little incentive for them to get involved. As we have seen, the Supreme Court ushered in the era of redistricting in the 1960s. One of the prime concerns with the Earl Warren led court was addressing deliberate attempts to prevent minority representation in some states. Congress’ Voting Rights Act required states with a troubling pattern of discriminatory practices to “pre-clear” proposed district changes with the U.S. Department of Justice. Fast-forwarding to the 2013 John Roberts court, however, those requirements have been shelved. It remains to be seen if the “hearts and minds” of the victorious states demanding an end to pre-clearance have really changed in the intervening years.  Observers should conclude that the only real solution would be for people at the state level to demand changes to the redistricting process that as much as humanly possible takes the politicians and narrow partisanship out of the process.

According to the excellent “All About Redistricting” website run by Loyola Law School professor Justin Levitt (http://redistricting.lls.edu), thirty-seven states have control of their own institution’s districts. Forty-two states have control over Congressional boundaries. It should be noted that seven states have a low enough population under the current formula so that they elect only one member of Congress, meaning the candidates run at-large without need for districts.

Although the exact procedures from state to state have some variance and unique quirks, the majority of states pass redistricting plans as if it were another piece of legislation, meaning that the majority party in office can generally do what it wants, unless perhaps the other party has a sitting governor. A couple of states—Connecticut and Maine—make the process a little more difficult (or keep them honest—your choice) by requiring a supermajority of representatives to set districts. Some states have advisory commissions of citizens with varying roles in preparing, vetting, or advising legislative committees to submit redistricting proposals, though the commissions cannot issue their own binding proposal. Another type of citizen commission in use in several states are called “Backup Commissions,” in which a panel may be created to review a legislature’s plan, or might create a plan if the assembly is deadlocked or unable to create a successful one within a defined time limit.

The best hope for real change, however, is the creation of more independent commissions comprised of citizens, not seated politicians.  Currently six states (Alaska, Arizona, California, Idaho, Montana, and Washington), all western, use independent bodies to design both state and federal districts. The creation of these bodies prevents state legislators or other public officials from participation. Some of these states have further transparency by preventing commissioners to run for an elected office themselves for a certain period of time after their work has been completed, excluding members of a legislator’s staff, and/or banning registered lobbyists.

A comprehensive reform plan for one state without such independence was first touted in June in Michigan. State Representative Sean McCann announced a proposal which, if passed, could become a model for other states to kick out the entrenched interests. The “plan would establish a pool of applicants overseen by the state auditor general. It employs what he described as a system of filters to exclude people who, within the past 10 years, have held elected office, been appointed to a party committee position, worked as a lobbyist or donated more than $2,000 to a campaign. Each party would have a right to veto potential commission members -- in a manner similar to jury strikes employed by prosecutors and defense attorneys.”

The tricky bit in the “Wolverine State” and others would likely be to alter state constitutions or win ballot initiatives which are much easier said than done if led by grass-root groups.  But the alternative is more of the same gridlock, bitter partisanship, extreme ideologies, and an overall lack of civic engagement. Districts should have lines that respect city and county boundaries so communities can build common ground, not be torn into competing interests. All Americans deserve to vote in districts that are contiguous, compact, and competitive.

Kirk Morrison

Kirk Morrison is Chairman of the National Committee for the American Solidarity Party