Should States Be Required to Have Independent, Bipartisan Redistricting Commissions? (S. 2226)

What is S. 2226?

(Updated September 17, 2020)

This bill — the Redistricting Reform Act of 2019 — would require states to establish independent, bipartisan redistricting commissions (referred to as Independent Redistricting Commissions, or IRCs) to draw fair statewide district maps after each decennial census. It would also set parameters for the creation of such commissions; establish eligibility requirements to prevent conflicts of interest to ensure members of the commissions aren’t lobbyists, political donors, or party operatives; and require commissions to operate transparently and reflect their states’ respective diverse populations. 

The following criteria would be established for redistricting plans developed by the commissions: 

• Equal population per representative, in accordance with the U.S. Constitution;
  
• Compliance with the Voting Rights Act of 1965; 
  
• Equal opportunity for political participation for racial, ethnic, and language minorities and no dilution or diminishment of their ability to elect candidates of choice, whether alone or in coalition with others; and
  
• Geographically contiguous and compact districts with boundaries that minimize the division of communities of interest (such as counties, municipalities, or school districts, but not common relationships with political parties or political candidates).

This bill would also require commissions to: 1) hold a minimum number of public hearings for public comment before enacting redistricting plans; 2) pass redistricting plans by a majority vote that includes at least one commissioner from each political affiliation subgroup.

To help the commissions in their work, the Election Assistance Commission (EAC) would be authorized to make payments to eligible state for the purpose of setting up IRCs and conducting redistricting.

Should a state fail to establish an IRC or enact an IRC’s congressional redistricting plan, this bill would authorize a three-judge court to develop and enact a plan. It would also allow the D.C. or local circuit court to conduct a state’s redistricting if an aggrieved party notifies the court of a state’s failure to establish an IRC or enact an IRC plan. 

Finally, this bill would allow the Attorney General or any private citizen who is aggrieved by the failure of a state to meet the requirements of this bill to sue to enforce the bill in either the D.C. district court or the state’s local circuit court.

Argument in favor

Gerrymandering has resulted in unfair, less competitive districts that don’t properly reflect constituents’ views. Independent redistricting committees are more likely than partisan politicians to create balanced districts will make it harder for bad politicians whose constituents don’t agree with their views to stay in office. This in turn will lead to more representative government.

Argument opposed

Redistricting is a fundamental duty of state legislators. Taking this responsibility away from the legislature, and giving it to unelected officials, makes the process unaccountable to voters. Additionally, given the Supreme Court’s recent ruling that federal courts aren’t able to intervene in political gerrymandering disputes, the provisions of this bill relating to challenging redistricting plans in federal court don’t make sense.

Impact

Voters; voting districts; voting district maps; gerrymandering; gerrymandered districts; states; local circuit courts; the D.C. circuit court; and the Attorney General.

Cost of S. 2226

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Senate Rules Committee Ranking Member Sen. Amy Klobuchar (D-MN) introduced this bill to help end partisan gerrymandering and reform the United States’ patchwork redistricting process by requiring states to establish independent, bipartisan redistricting commissions to draw fair statewide district maps after each decennial census: 

“Partisan gerrymandering undermines the principles of our democracy and puts political parties before people. Following last month’s Supreme Court decision to essentially green light political manipulation of congressional districts, Congress must act to protect the Constitutional principle] of ‘one-person, one-vote.’ My legislation would help eliminate gerrymandering once and for all so every person’s vote is counted equally.”  

Rep. Zoe Lofgren (D-CA), who has sponsored this legislation in the House in both the 115th and 116th Congresses, says: 

“If the U.S. Supreme Court won’t fight to protect Americans’ votes, then Congress will. Our Democracy cannot function properly unless every person’s vote counts equally, and voters choose their elected officials, not the other way around. My bill would fix our broken redistricting process to ensure all voices are heard and politicians are held accountable.”

Aaron Scherb, director of legislative affairs at the non-partisan government watchdog Common Cause, expresses his organization’s support for this bill: 

“Power-hungry politicians frequently use hyper-partisan gerrymandering to silence the voices of Americans in our democracy, and allowing self-interested politicians to cherry-pick their voters is like allowing foxes to guard a hen house. Independent, non-partisan redistricting commissions shift decision-making from politicians to everyday citizens, and these panels are a common-sense solution that nearly 10 states have enacted. Common Cause strongly supports the Redistricting Reform Act and appreciates that this legislation was included in the For the People Act.”

In October 2017, lawyers for the North Carolina General Assembly argued that politicians in the state who’d created gerrymandered districts were within their rights to do so. They pointed out that: 1) state law clearly gave lawmakers the ability to draw congressional maps to their preference as long as they didn’t do so based on race; and 2) there was no precedent specifically banning political gerrymandering, and in fact that there were cases where things like keeping incumbents in their districts and politics were accepted as valid criteria in the redistricting process.

This legislation has six Senate cosponsors, including five Democrats and one Independent. Its House companion, sponsored by Rep. Zoe Lofgren (D-CA), has 51 Democratic House cosponsors. Neither bill has received a committee vote. It’s endorsed by the Brennan Center, Common Cause, Campaign Legal Center, and Democracy 21

Last Congress, Rep. Lofgren introduced this bill in the House with 79 Democratic House cosponsors and it didn’t receive a committee vote. There was no Senate version of this bill last Congress..

H.R. 1, the For the People Act of 2019, includes this bill’s text. That bill passed the House by a 234-193 party-line vote, but has yet to receive a Senate vote. It’s unlikely that the For the People Act will receive a Senate vote, as Senate Majority Leader Mitch McConnell (R-KY) has called it a "power grab" and declared that the "sprawling 622-page doorstop is never going to become law."

Of Note: “Gerrymandering,” also referred to as “partisan gerrymandering,” is the process of intentionally drawing voting district maps to benefit a particular political party. Gerrymandering may help the party it favors win more seats, more easily protect its existing seats, and/or marginalize its opposition party. Gerrymandering’s goal is to create many districts that will elect members of one party and only a few districts that will elect members of the opposite party. 

There are also some subtypes of gerrymandering. “Racial gerrymandering” is used to describe the process of drawing voting district maps that dilute certain racial or demographic groups’ voting power. While gerrymandering to reduce the voting power of minority groups has been found to be unconstitutional, gerrymanders to create majority-minority districts (districts where minorities are the majority) have been upheld (however, in , the Court ruled that if a district is drawn predominantly on the basis of race, it violates the Equal Protection Clause). A “bipartisan gerrymander” refers to a redistricting that’s meant to protect both parties’ incumbents.

Gerrymandering can affect any legislative body that has to have its districts drawn. This includes the House of Representatives and every state legislature. The use of gerrymandering isn’t exclusive to either major party: both Democrats and Republicans have tended to gerrymander districts when the opportunities arise. Because political power is at stake when district maps are redrawn, redistricting fights are often intense.

The idea of taking gerrymandering out of politicians' hands and letting independent, nonpartisan commissions handle the job of redrawing voting districts is a popular proposal to end this practice. This approach has worked well in Canada, which used to have a serious gerrymandering problem, but which shifted to independent three-person commissions in the 1960s. In a post on his personal blog, Washington Post columnist JJ McCullough notes that this approach has worked well: 

“In the bad old days, the boundaries of the 200-something single-member districts of Canada’s House of Commons were set by a partisan committee of the House itself. This, of course, resulted in predictable partisan corruption, as whatever party happened to be in the majority (i.e., the Liberal Party) would happily re-draw the lines in whatever self-serving manner would best shut out their political enemies… Increasingly unpopular, partisan redistricting in Canada finally ended in 1964 with the Peason government’s passage of the Electoral Boundaries Readjustment Act. Under the terms of the new legislation, parliamentary ridings could henceforth only be modified by special non-partisan committees residing in each province. Each redistricting committee would consist of one provincial judge and two individuals appointed by Canada’s apolitical Speaker of the House, and their decisions could only be overturned by parliament in the case of exceptional, and provable, concern…. Today, most Canadian ridings are simple and uncontroversial, chunky and geometric, and usually conform to the vague borders of some existing geographic / civic region knowable to the average citizen who lives there… Due to a weird clause in the Canadian Constitution that mandates all provinces must have as many MPs as they have seats in Canada’s arbitrarily apportioned Senate, there are a few “rotten boroughs” in Canada, mostly Atlantic Canada, that simply should not exist in a truly representation-by-population legislature. But overall, Canada’s parliamentary districts are respected, legitimate, and uncontroversial. Of the many matters Canadians have cause to grieve their government for, corrupt redistricting is not one of them.”

In contrast to Canada, the U.S. has many oddly-shaped congressional districts thanks to gerrymandering. During the 115th Congress, this was the case the Pennsylvania 7th District, Maryland 3rd District, and Texas 33rd District — all three of which have tortured, irregular borders.

In a pair of 5-4 rulings on (involving a congressional map allegedly gerrymandered to favor Democrats in Maryland) and (involving a congressional map allegedly gerrymandered to favor Republicans in North Carolina) in July 2019, the Supreme Court ruled that federal courts must not get involved in cases of partisan gerrymandering. This ruling essentially gave politicians in both parties carte blanche to be as aggressive as they want to be in drawing districts that benefit their own party and hurt their political opponents without fear of federal court intervention. Due to this decision, it’s now up to Congress, states, and voters to rein gerrymandering in, if they so choose.

Chief Justice John Roberts, who wrote the decision for the conservative majority, argued that the mere fact that gerrymandering is “incompatible with democratic principles” doesn’t mean that the solution lies with the federal judiciary. Roberts noted that the Constitution tasks states, not  the federal government, with resolving this issue and wrote: 

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions."

Justice Elena Kagan wrote a sorching dissent on behalf of the four liberals on the bench: 

“(G)errymandering is, as so many Justices have emphasized before, anti-democratic in the most profound sense. Of all times to abandon the Court's duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court's role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent."

Former Obama administration Attorney General Eric Holder, who has led an effort to fight GOP-drawn gerrymanders, criticized the Court’s decision, saying that it “tears at the fabric of our democracy and puts the interests of the established few above the many." Holder added, “History will not be kind in its assessment of the ways in which this court has undermined voting rights and core democratic principles in America.”

Media:

• Sponsoring Sen. Amy Klobuchar (D-MN) Press Release
  
• House Sponsor Rep. Zoe Lofgren (D-CA) Press Release
  
• Countable Explainer - The Voting Rights Act of 1965
  
• Countable (Context)
  
• Vox - Gerrymander Explainer (Context)
  
• The New York Times (Context)
  
• CNN (Context)
  
• Countable (Context)
  
• Countable - H.R. 1: For the People Act (Includes This Legislation)