• Home
  • Opinion
  • Quizzes
  • Redistricting
  • Sections
  • About Us
  • Voting
  • Events
  • Civic Ed
  • Campaign Finance
  • Directory
  • Election Dissection
  • Fact Check
  • Glossary
  • Independent Voter News
  • News
  • Analysis
  • Subscriptions
  • Log in
Leveraging Our Differences
  • news & opinion
    • Big Picture
      • Civic Ed
      • Ethics
      • Leadership
      • Leveraging big ideas
      • Media
    • Business & Democracy
      • Corporate Responsibility
      • Impact Investment
      • Innovation & Incubation
      • Small Businesses
      • Stakeholder Capitalism
    • Elections
      • Campaign Finance
      • Independent Voter News
      • Redistricting
      • Voting
    • Government
      • Balance of Power
      • Budgeting
      • Congress
      • Judicial
      • Local
      • State
      • White House
    • Justice
      • Accountability
      • Anti-corruption
      • Budget equity
    • Columns
      • Beyond Right and Left
      • Civic Soul
      • Congress at a Crossroads
      • Cross-Partisan Visions
      • Democracy Pie
      • Our Freedom
  • Pop Culture
      • American Heroes
      • Ask Joe
      • Celebrity News
      • Comedy
      • Dance, Theatre & Film
      • Diversity, Inclusion & Belonging
      • Faithful & Mindful Living
      • Music, Poetry & Arts
      • Sports
      • Technology
      • Your Take
      • American Heroes
      • Ask Joe
      • Celebrity News
      • Comedy
      • Dance, Theatre & Film
      • Diversity, Inclusion & Belonging
      • Faithful & Mindful Living
      • Music, Poetry & Arts
      • Sports
      • Technology
      • Your Take
  • events
  • About
      • Mission
      • Advisory Board
      • Staff
      • Contact Us
Sign Up
  1. Home>
  2. gerrymandering>

Democrats missed their window to pass redistricting reform

Howard Gorrell
July 28, 2022
Rep. Zoe Lofgren

In eight consecutive congressional sessions, Rep. Zoe Lofgren introduced legislation pushing the use of independent redistricting commissions. She has yet to offer it in the current Congress.

Anna Moneymaker/Getty Images

Gorrell is an advocate for the deaf, a former Republican Party election statistician, and a longtime congressional aide.

“State consti­tu­tional bans on gerry­man­der­ing in Flor­ida, Ohio, North Caro­lina, and other states could die, as could inde­pend­ent redis­trict­ing commis­sions in Arizona, Cali­for­nia, Michigan and other states,” according to the Brennan Center for Justice.

That post was last updated June 30, the same date the Brennan Center responded after the Supreme Court agreed to hear Moore v. Harper, an unthinkable case out of North Carolina about the power of state courts to review the congressional district maps drawn by legislatures.

In that case, Republican legislators requested the Supreme Court to overturn a North Carolina Supreme Court decision to throw out their gerrymandered congressional map and force one drawn by the court.

The appellants' argument is based on the independent state legislature doctrine. This legal theory claims state courts do not have oversight power over gerrymandering and election policy set by legislatures. The doctrine is based on two clauses in the Constitution. The elections clause cited in the redistricting case provides that "the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof." A separate provision is the presidential electors clause, which has nothing to do with redistricting.

Sign up for The Fulcrum newsletter


If the court accepts the ISLD, it will leave no alternative for citizens to challenge gerrymandered congressional maps. As a result of the 2019 decision in Rucho v. Common Cause, federal courts can no longer handle claims of illegal partisan gerrymandering, but state courts could use state constitutions to police it because they raise political, not judicial questions. Chief Justice John Roberts wrote: "Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply" in policing partisan gerrymandering.

During the most recent redistricting cycle, state courts have reined in Republican gerrymanders in North Carolina, Ohio and Pennsylvania and rejected maps drawn by Democratic-led legislatures in Maryland and New York.

"So, in short, if the Supreme Court were to rule for the gerrymanderers in North Carolina, that may mean that state legislatures are free – when it comes to congressional elections – to gerrymander to their heart's delight, and there will be no court available to stop them," Bennan’s Ethan Herenstein said.

Sounds like hyperbole? Consider:

Since the 93rd Congress (1973–75), none of the redistricting bills have received any action other than referral to the appropriate committee or subcommittee.

For example, Democratic Rep. Zoe Lofgren introduced a bill in each of the eight consecutive Congresses, beginning in 2005, to stop gerrymandering by enabling each state to establish an independent redistricting commission. It died in committee each time it was introduced because it lacked adequate support among Democratic leadership to advance. Eight sessions!

Another history lesson. In 1972, President Richard Nixon won the election in a landslide, taking 61 percent of the popular vote and carrying 49 states. Again in 1984, Ronald Reagan dominated the presidential election, winning almost 59 percent of the popular vote and 49 states. However, their Republican Party failed to take control of the House of Representatives since the majority of congressional districts were drawn by Democratic legislatures, which dominated state capitals at the time. (Note that going into the 2022 November election, Republicans control 30 statehouses.)

"That's all we're asking for: an end to the anti-democratic and un-American practice of gerrymandering congressional districts. ... The fact is gerrymandering has become a national scandal," Reagan said.

Former President Barack Obama agreed with Reagan on this point. In his final State of the Union address, he told Congress, "We have to end the practice of drawing our congressional districts so that politicians can pick their voters, and not the other way around. Let a bipartisan group do it."

But he only engaged on the issue after absorbing a lesson in the 2010 midterms. He did not act when it mattered most — in his first two years when fellow Democrats controlled the House and Senate. At the time, it seemed their party would do well enough in the 2010 midterms to dominate redistricting for the decade now coming to an end.

Obama and his Democratic Party would have been correct since it has been a long-held tradition in American politics that every 10 years, the party in control of state houses would use gerrymandering to redraw districts in their favor for the next election.

Nevertheless, Republicans weaponized gerrymandering. With a $30 million strategy, the REDistricting Majority Project (cleverly known as REDMAP) sparked a Republican wave that flipped control of legislative chambers in swing states. That enabled them to lock in power and redraw congressional maps in the 2010 cycle.

“The Supreme Court’s next move could fundamentally change our democracy,” read a recent editorial headline in The Washington Post. Interestingly, the editorial board might forget that Democrats enjoyed a filibuster-proof 60-vote majority in the Senate from July 7, 2009, to Feb. 4, 2010.

What did the Obama administration do during the 213 days of the filibuster-proof period?

Sadly, federal legislators brought up no election reform bills, such as ending gerrymandering, abolishing the Electoral College or and strengthening voting rights.

However, Lofgren’s redistricting bill, H.R.5596, was introduced on June 24, 2010, (four months after the end of the 60-vote majority). She had only 12 co-sponsors (all Democrats in California). Hailing from California, Speaker Nancy Pelosi did not co-sponsor it because she seemed to believe her party would do well enough in the 2010 midterms to dominate redistricting for the decade now coming to an end.

On that date, the Democratic Party had 57 senators and two independents caucusing with them. On the House side, it had 255 of 433 representatives with two vacant seats (59 percent of the chamber.) The Supreme Court had four liberal justices and four conservatives, with Chief Justice John Roberts as the “swing justice.”

Suppose the 2010 Roberts court heard a case related to the ISLD. The chief justice might have sided with state legislators, and the Democratic Party would then be in the redistricting driver’s seat for decades.

Although the Supreme Court declined to intervene, Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas have endorsed versions of the ISLD in previous court opinions. Newcomer Amy Coney Barrett’s views on the ISLD are not known, while Roberts tends to be a centrist.

Interestingly, Lofgreen has not yet reintroduced her redistricting reform bill in the current Congress. The public might not know that her last bill, the Redistricting Reform Act of 2019, is nearly identical to the redistricting provisions included the House version of the For the People Act. The one exception is the effective date change, replacing 2020 with 2030. Nevertheless, two Democratic filibuster devotees, Joe Manchin and Kyrsten Sinema, do not favor filibuster reform to change the Senate rules to allow the passage of the For The People Act. Its successor, the doomed Freedom to Vote: John R. Lewis Act would not require nonpartisan redistricting commissions.

Recently, seven Republicans voted to pass House legislation to enshrine a right to contraception in federal law, and 47 Republicans voted for a federal law codifying same-sex marriage, indicating there may be room for some bipartisan legislating.

To make up for their 2009-10 embarrassing mistakes, Democrats should now ask Lofgren to reintroduce her redistricting reform bill, so it can become federal law soon.

From Your Site Articles
  • What GOP wins in Virginia mean for state, national politics - The ... ›
  • Why can't states go rogue on the Electoral College? - The Fulcrum ›
  • 'Independent state legislature theory' is unconstitutional - The Fulcrum ›
  • Court to consider ‘independent state legislature doctrine’ - The Fulcrum ›
  • Court unlikely to buy independent state legislature theory - The Fulcrum ›
Related Articles Around the Web
  • The independent state legislature theory and more on jurisdiction ... ›
  • What is the “Independent State Legislature Doctrine”? | The National ... ›
  • Contentious Fringe Legal Theory Could Reshape State Election ... ›
  • The 'Independent State Legislature Theory,' Explained | Brennan ... ›
gerrymandering

Join an Upcoming Event

Living Room Conversation: Legalized Marijuana

Unify America
May 30, 2023 at 1:00 pm CDT
Read More

New York Meet & Greet! – STAR Voting

Equal Vote
May 31, 2023 at 2:00 pm EDT
Read More

Democracy Happy Hour

Fix Democracy First
May 31, 2023 at 5:00 pm PDT
Read More

2023 Civic Learning and Democratic Engagement Meeting

Unify America
Jun 01, 2023 at 10:30 am CDT
Read More

Police-Community Relations Conversation

Living Room Conversations
Jun 02, 2023 at 4:00 pm MDT
Read More

STAR Voting California Monthly Meeting

Equal Vote
Jun 07, 2023 at 6:00 pm PDT
Read More
View All Events

Want to write
for The Fulcrum?

If you have something to say about ways to protect or repair our American democracy, we want to hear from you.

Submit
Get some Leverage Sign up for The Fulcrum Newsletter
Confirm that you are not a bot.
×
Follow
Contributors

Hypocrisy of pro-lifers being anti-LGBTQIA

Steve Corbin

A dangerous loss of trust

William Natbony

Shifting the narrative on homelessness in America

David L. Nevins

Reform in 2023: Leadership worth celebrating

Layla Zaidane

Two technology balancing acts

Dave Anderson

Reform in 2023: It’s time for the civil rights community to embrace independent voters

Jeremy Gruber
latest News

Three practical presidential pledges to promote national prosperity

James-Christian B. Blockwood
5h

Meet the Faces of Democracy: Justin Roebuck

Mia Minkin
5h

Podcast: Why Is Congressional Oversight Important, and How Can It Be Done Well? (with Elise Bean)

Kevin R. Kosar
Elise J. Bean
12h

Chipping away at election integrity: Virginia joins red state exodus from ERIC

David J. Toscano
30 May

Your Take on congressional incivility

Lennon Wesley III
26 May

White House plan to combat antisemitism needs to take on centuries of hatred, discrimination and even lynching in America

Pamela Nadell
26 May
Videos

Video: Honoring Memorial Day

Our Staff

Video: #ListenFirst Friday YOUnify & CPL

Our Staff

Video: What is the toll of racial violence on Black lives?

Our Staff

Video: What's next for migrants seeking asylum after Title 42

Our Staff

Video: An inside look at the campaign to repeal Pennsylvania’s closed primaries

Our Staff

Video: Where the immigration debate stands today

Our Staff
Podcasts

Podcast: AI revolution: Disaster or great leap forward?

Our Staff
25 May

Podcast: Can we fix America's financial crises?

Our Staff
23 May

Podcast: Gen Z's fight for democracy

Our Staff
22 May

Podcast: Political Football, Inc.

Our Staff
19 May
Recommended
Three practical presidential pledges to promote national prosperity

Three practical presidential pledges to promote national prosperity

Big Picture
Meet the Faces of Democracy: Justin Roebuck

Meet the Faces of Democracy: Justin Roebuck

State
Podcast: Why Is Congressional Oversight Important, and How Can It Be Done Well? (with Elise Bean)

Podcast: Why Is Congressional Oversight Important, and How Can It Be Done Well? (with Elise Bean)

Test Unlisted
Hypocrisy of pro-lifers being anti-LGBTQIA

Hypocrisy of pro-lifers being anti-LGBTQIA

Diversity Inclusion and Belonging
Chipping away at election integrity: 
Virginia joins red state exodus from ERIC

Chipping away at election integrity: Virginia joins red state exodus from ERIC

Big Picture
Video: Honoring Memorial Day

Video: Honoring Memorial Day