reporter's notebook

What States Can Do If SCOTUS Makes Gerrymandering A Nightmare Without End

WASHINGTON, DC - OCTOBER 03: Demonstrators gather outside of The United States Supreme Court during an oral arguments in Gill v. Whitford to call for an end to partisan gerrymandering on October 3, 2017 in Washington... WASHINGTON, DC - OCTOBER 03: Demonstrators gather outside of The United States Supreme Court during an oral arguments in Gill v. Whitford to call for an end to partisan gerrymandering on October 3, 2017 in Washington, DC. (Photo by Olivier Douliery/Getty Images) MORE LESS
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January 11, 2019 3:29 p.m.

Redistricting experts I surveyed this week were surprisingly optimistic that the Supreme Court — conservative majority aside — will finally take steps to limit extreme partisan gerrymandering in two cases before it this spring. You can read more about the reasons why here.

But of course, no one knows what will happen for sure, and other smart redistricting-watchers like Election Law Blog’s Rick Hasen fear a much darker outcome. Hasen believes the court will take the opposite tack: ruling that the judiciary has no role in policing partisan gerrymandering, opening the door to an even more reckless round of map-drawing come 2021.

Some of the experts I spoke to said that even if that happens, all won’t be lost. With Democrats newly invested in fighting the practice and in state-level politics overall, a fairer approach can be carved out through the independent or bipartisan redistricting commissions that have cropped up across the country in recent years.

States like Arizona and California led the way on this system earlier in the 2000s, and the 2018 midterms saw these independent commissions instituted via voter-approved ballot initiatives in states like Michigan.

These commissions typically strip map-drawing responsibilities from the state legislature. A commission made up of Democrats, Republicans and independents is instead tasked with coming together to agree on how legislative and congressional maps should be drawn.

Jeff Wice, a census and redistricting expert with SUNY’s Rockefeller Institute, predicts we’ll see more movement in this direction.

“If legislatures continue the same kind of bad behavior we’ve seen in 2011 and ’12, then we’re going to see either more voters taking the power away from the legislatures or the courts invalidating the plans and drawing new ones themselves,” Wice said. “If that lesson hasn’t caught on yet — in Michigan, North Carolina, Virginia, Wisconsin — then even if the U.S. Supreme Court doesn’t find the right formula to put the breaks on egregious gerrymandering, the voters might do that or the state courts might find a way.”

The National Democratic Redistricting Commission, ex-Attorney General Eric Holder’s outfit, has a similar stance.

“I don’t think it would be wise to rely on the conservative Supreme Court,” NDRC communications director Patrick Rodenbush told me. “Our approach is we’re bringing litigation at the state level and at the federal level, trying to elect people at the state level supporting reform initiatives. So it’s a holistic approach.”

Hasen has cautioned that the 5-4 conservative court could go after independent redistricting commissions, too. As he pointed out in the Atlantic this week, Chief Justice Roberts wrote a scathing dissent to Justice Ginsburg’s 2015 opinion that voters can use ballot initiatives to establish these commissions to draw congressional maps.

Per Roberts and the court’s other conservatives, the Constitution allows only the legislature to set congressional election rules; having voters take control of the process through ballot initiatives is therefore an illegal usurpation of that power.

Other experts agree that such a reversal of the 2015 Arizona ruling would be appalling, but say it’s unlikely the court would overturn that precedent so quickly.

“The court doesn’t often overrule a decision that’s only three years old,” the Campaign Legal Center’s Paul Smith said.

The Rockefeller Institute’s Wice added that any challenge to the commissions couldn’t come until one of them has drawn up a redistricting plan. Even then, he said, such a challenge could only apply to plans in the “totally independent commission states where the legislators have no final approval power,” like California. Other states with commissions, like New York, only have advisory commissions but allow the legislature to vote on a particular plan.

Tl;dr: we don’t know what will happen with the North Carolina and Maryland cases on the Supreme Court’s docket this spring. But there’s a lot more ground to fight in the redistricting wars.

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