Already, this redistricting cycle has been like no other in recent memory. A global pandemic and a fight to include a question about citizenship in the decennial census caused the Census Bureau to announce it will be unable to meet its statutory deadlines for delivering the data. Although a few legislatures have begun drafting and even passing maps, the delay means that most states will not begin redistricting until five months later than anticipated. Several states have already begun to have hearings, and will hopefully follow up with more after the pre-Sept. 30 data files release.
In addition, legislative and congressional redistricting will be conducted by citizen commissions in 11 states, up from seven in 2010. Citizen commissions are seen by many reformers as not only a means to greater public input and community representation, but also as a limit to gerrymandering. And the trend seems likely to continue: According to the Brennan Center, proposals to create redistricting commissions were the most common type of redistricting reform considered by legislatures in 2020, including 18 that specifically called for citizen commissions.
For those not directly engaged in the process, there is a third and critical difference in the process this cycle: widespread public access to nonpartisan data, tools and information necessary to engage meaningfully in the process.
Drawing legally compliant district maps requires a tremendous amount of data, which is often time consuming to collect and labor intensive to process. Legislators have staff on hand to collect and process this data, as well asprovide technical support and training. They also have taxpayer dollars to buy proprietary mapping software, allowing them to intricately manipulate district lines to produce friendly districts. Because the data and tools are difficult to acquire, the ability to suggest more legally compliant maps or analyze proposed maps for gerrymandering has been out of reach for all but the most well-resourced groups.
This time, however, individuals and organizations can turn to the nonpartisan Redistricting Data Hub, a one-stop shop for high-quality redistricting data. For instance, all states require compliance with the Voting Rights Act of 1965. The RDH website hosts validated precinct boundaries joined with election results, which are used for racially polarized voting analyses, an essential step in assessing VRA compliance. RDH also hosts American Community Survey and voter file data with racial and ethnic information, as well as population projections, that can be used to assess how the demographics of a district might change over time.
Numerous states also require redistricting to respect "communities of interest," a criterion that is generally viewed as a door to more equitable representation. These communities are often subjectively defined, but testimony in support of a community can benefit from quantitative evidence found in the ACS, voter file data and population projections.
But data will only get you halfway there — access to mapping software and the technical skill to use them are also necessary to draw and analyze maps.
Once again, this cycle is different, in that there are several high-quality redistricting tools available for free online, including Dave's Redistricting App, DistrictBuilder, Districtr, Representable and the QGIS Redistricting Plugin. RDH has partnered with these organizations to provide demonstrations on how to use their tools, and you can find recordings of these sessions on the RDH website. And anyone can send questions about redistricting data, mapping tools, and other aspects of the process to email@example.com; knowledgeable, nonpartisan and friendly staff will respond within one business day.
Only time will tell how effective these changes are in preventing gerrymandering. But there are clear reasons for hope this time around, as long as the public uses these tools to their advantage. If you spent the last 10 years bemoaning gerrymandering, now's your chance to make sure you don't spend the next decade doing the same. The data, tools and support you need to effectively participate and advocate for a fair and representative redistricting are all publicly available online for free from the Redistricting Data Hub. Use our resources and let's advocate for fair districts!
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Gorrell is an advocate for the deaf, a former Republican Party election statistician, and a longtime congressional aide. He has been advocating against partisan gerrymandering for four decades.
"It's always encouraging to see great people like Eric Holder fighting to end Republican gerrymandering." — Democratic National Committee Chairman Tom Perez, Aug. 2, 2019.
For the past year, Holder's National Democratic Redistricting Committee, the Democratic Congressional Campaign Committee, the Democratic Governors Association, the National Democratic Redistricting PAC, EMILY's List, America Votes and All On The Line have persuaded their supporters to write thousands of email messages, letters to the editor and opinion pieces claiming the creation of independent redistricting commissions in their states could end Republican gerrymandering by the end of 2022.
But that's just not true.
As Bryan H. Wildenthal wrote for the legal news site Jurist: "A fact shockingly ignored in most news coverage is that some key provisions on gerrymandering would not even take effect until a decade from now — after the 2030 census!"
And, as New York Times columnist Ezra Klein explained, "It would also ban partisan redistricting and force states to use independent commissions to draw congressional lines (although this would not, sadly, take effect until after the 2030 census)."
CNN's Chris Cillizza echoed that analysis when he wrote: "And, even if the legislation did make it through the Senate — and Biden signed it — the redistricting reforms wouldn't kick in until the 2030 Census. Which is a very good thing for Republicans."
Let us check the effective date in the Senate's version of the For the People Act. It states, "This subtitle and the amendments made by this subtitle shall apply with respect to redistricting carried out pursuant to the decennial census conducted during 2030 or any succeeding decennial census."
In an email to me, Wildenthal wrote, "The result will be that Republicans will gerrymander to their heart's content in Texas, Florida, North Carolina, and Georgia (where they have far more seats to play with), and leave Democrats in the dust. They will lock in control of the House for the next decade even though Democrats may well win the House popular vote (as they did in 2012)."
Interestingly, Democratic Rep. Zoe Lofgreen of California has not yet reintroduced her redistricting reform bill in the current Congress session (for her ninth attempt since 2005). Each time it has been submitted, it has died in committee because it has lacked adequate support among leadership to advance. The public might not know that her last bill, the Redistricting Reform Act of 2019, is identical to the redistricting provisions of the House version of the For the People Act. The exception is the change of the effective date, replacing 2020 with 2030.
These Democratic-related organizations have not informed their supporters about the new change of the effective date.
Should all 50 states adopt independent redistricting commissions by the time of the 2022 elections? Definitely yes. Look at the Maryland example.
Maryland has two dueling redistricting commissions. In his executive order, Republican Gov. Larry Hogan established the Governor's Citizen Redistricting Commission. Meanwhile, the top Democratic leaders in the General Assembly launched the Legislative Redistricting Advisory Commission to draw new congressional and legislative district maps.
In his Duckpin blog, Brian Griffiths wrote, "While the Governor's Redistricting Advisory Commission is designed to help the people, the Legislative Redistricting Advisory Commission is designed to help politicians. The difference could not be more clear." He showed the credibility difference between the two:
- The governor's commission has three Democrats, three Republicans and three independents. None of the nine members are elected officials.
- The legislative commission has five Democrats and two Republicans. Six of the seven members are elected officials.
Notably, President Biden did not mention redistricting reform while delivering a major speech on voting rights in Philadelphia on Tuesday, but he must know about the effective date.
Oddly, President Barack Obama did not push the Lofgren bill during his first two years in the White House, when fellow Democrats controlled the House and Senate. At the time, it seemed his party would do well enough in the 2010 midterms to dominate redistricting for the decade now coming to an end.
It turned out the opposite way. A Republican wave that year (fueled partly by fundraising for the Republican State Leadership Committee's Redistricting Majority Project) resulted in all GOP state governments getting to draw almost half the 435 congressional districts the next year while all Democratic governments drew about 50. This action is one of Obama's most embarrassing moments.
Wildenthal wrote, "I could not agree more strongly that it was a tragically missed historic opportunity for Obama and the Democrats to enact lasting reform to ban gerrymandering in 2009-10. I suppose they stupidly assumed they would have the upper hand after the 2010 election. We know how that worked out."
I believe his one-page legislative proposal, the "Defend Elections and National Democracy (DEFEND) Act," could be an excellent solution. It would:
- Block all state restrictions on voting rights or other state laws affecting federal elections, enacted after Jan. 6, 2021, unless such laws were passed with bipartisan support.
- Invalidate all partisan and abusive state legislation (whether Republican-sponsored or Democratic-sponsored) attacking voting rights or threatening election integrity.
- Block any state map seeking to gerrymander districts for the U.S. House of Representatives on a partisan basis, and encourage other states to adopt independent or bipartisan commissions.
I ask advocates of redistricting reform to spread the word on the correct effective date and to consider the DEFEND Act.
The recent Supreme Court rulings on voting rights and election transparency have once again highlighted the enormous power the judicial branch has over the country's electoral process.
Last week, the court's conservative majority upheld a pair of voting laws that tightened the rules in Arizona. In a separate ruling, the justices struck down California's law requiring charitable nonprofits to privately disclose their top donors to the state attorney general. Both cases could have larger implications for the future of American democracy.
Throughout history, the Supreme Court has played an integral role in shaping how voters are represented, ballots are cast and elections are financed. Here are seven landmark cases from the last six decades:
Reynolds v. Sims (1964)
In 1961, a group of Alabama voters challenged the apportionment of the state Legislature, arguing it violated the equal protection clause of the Fourteenth Amendment. At the time, Alabama required each county to have at least one representative and allowed as many senators as there were senatorial districts. This led to unequal representation due to large population discrepancies across the districts.
The Supreme Court ruled that legislative districts within a state must have substantially equal representation for all citizens. This ruling has ensured districts maintain even representation when redrawn each decade during redistricting.
Buckley v. Valeo (1976)
In an attempt to curb political corruption following the Watergate scandal, Congress established limits on election spending through the 1971 Federal Election Campaign Act. This case challenged whether those restrictions violated the First Amendment.
In 1976, the Supreme Court arrived at two conclusions with this case, making a distinction between contributions and expenditures. First, the justices determined that a limit on how much an individual can donate to political campaigns and candidates did not violate the First Amendment because it "served the government's interest in safeguarding the integrity of elections." However, the court also found that limits on expenditures by campaigns and candidates did violate the freedoms of speech and association because this practice does not necessarily enhance the potential for corruption in elections.
Also in this ruling, the court overturned FECA's disclosure requirement for independent expenditures made for the purpose of influencing federal elections. This established the two types of political advertising seen today: express advocacy and issue advocacy. Express advocacy ads require disclosure because they explicitly support or oppose a candidate. Issue advocacy ads, on the other hand, mention broad political topics, but not campaigns, and so disclosure is not required. However, there can be ambiguity between the two, leading to calls for more transparency of the wealthy special interests influencing elections.
Miller v. Johnson (1995)
Following the 1990 census, Georgia lawmakers redrew the state's election maps to create a third majority-Black district. However, the new district was so severely gerrymandered that it packed Atlanta's Black neighborhoods in with other Black communities 260 miles away along the Atlantic coast.
Voters in this distorted district challenged the map, arguing it was a racial gerrymander in violation with the equal protection clause of the Fourteenth Amendment. The Supreme Court ruled that the district did constitute a racial gerrymander. In some instances, the court held, a reapportionment plan may be so irregular that it cannot be rationally understood as anything but an effort to racially segregate voters.
Citizens United v. Federal Election Commission (2010)
The 2002 Bipartisan Campaign Reform Act barred electioneering communication — advertising run on broadcast, cable or satellite services and mentioning a candidate — within 60 days of a general election and 30 days of a primary. Citizens United, a conservative advocacy nonprofit, challenged this rule after its movie criticizing then-presidential candidate Hillary Clinton was blocked by the Federal Election Commission for airing too close to an election.
The Supreme Court struck down this provision of BCRA, ruling that corporate funding of independent political broadcasts cannot be restricted under the First Amendment. However, the court upheld the requirement that electioneering communication be subject to disclaimers and disclosure of sponsors.
More than a decade after the ruling, Citizens United v. FEC is often labeled as the ultimate antagonist of the democracy reform movement. Its harshest critics use the case as shorthand for a campaign financing system that gives a lopsided political advantage to the wealthiest individuals, corporations and other entities. But proponents, mostly conservatives, still hail the ruling as a major victory for free speech and political expression.
Shelby County v. Holder (2013)
In 2013, the Supreme Court struck down a key provision of the 1965 Voting Rights Act, known as preclearance. Prior to this ruling, certain states and counties with histories of racial discrimination had to get prior federal approval of their proposed changes to voting procedures. But the court found that this constraint, while appropriate in the past, was no longer necessary and placed an unconstitutional burden on states.
Since then, voting rights advocates claim the lack of preclearance has allowed state lawmakers to significantly roll back voting access. But others argue what remains of the Voting Rights Act is enough to protect against discriminatory laws.
McCutcheon v. Federal Election Commission (2014)
The Bipartisan Campaign Reform Act set a cap on the total dollars an individual could give to candidates, political parties and political action committees in a two-year election cycle. The law was intended to curb political corruption, but a decade after enactment, it was challenged for violating the First Amendment.
The Supreme Court ruled in 2014 that the aggregate limit failed to prevent corruption or meet the "rigorous" standard of review set by previous campaign finance cases, and therefore it was unconstitutional. There are still limits on how much an individual can give to a single candidate, party or committee, though.
This ruling opened up opportunities for wealthy donors to give to as many political entities as they want. It also led to the creation of joint fundraising committees — partnerships in which campaigns and party committees collect one large check from each donor and split the proceeds.
Rucho v. Common Cause (2019)
Two years ago, the Supreme Court ruled that cases involving partisan gerrymandering were not justiciable because the issue falls outside the purview of federal courts. The case was brought to the court after North Carolina's maps were challenged for constituting an illegal partisan gerrymander.
This ruling was seen as a massive setback for anti-gerrymandering advocates who had hoped the high court would intervene in extreme gerrymandering cases, such as the one in North Carolina. Now, it will be left up to state courts to decide when gerrymandering goes too far.
- N.C. gerrymandering fight ends with middle-ground solution - The ... ›
- Supreme Court grapples with fight over Calif. disclosure law - The ... ›
- Court deals blows to voting rights, election transparency - The Fulcrum ›
As American politics has become more divisive over the past few decades, the country has also become more racially segregated.
More than 80 percent of the large metropolitan areas in the United States were more segregated in 2019 than they were in 1990, according to a new study by the University of California at Berkeley's Othering & Belonging Institute. Released last week, "The Roots of Structural Racism: Twenty-First Century Racial Residential Segregation in the United States" found that this increased segregation has contributed to poorer life outcomes, especially for people of color.
Areas with more racial segregation also had higher levels of political polarization, the study found. These divisions could play a huge role in how severe this round of gerrymandering is as states will soon redraw election maps for the new decade.
The Othering & Belonging Institute's study refutes the prevailing perception that the United States has become more integrated since the civil rights era. While metropolitan areas overall have become more diverse over the years, the neighborhoods within them are now highly segregated.
This racial residential segregation, the study found, will likely make it easier for politicians to use gerrymandering techniques like "packing" and "cracking" to draw election districts to their party's advantage.
The Voting Rights Act of 1965 made it illegal for states to draw maps in ways that dilute the voting power of protected minority communities. And in 2019, the Supreme Court ruled that the constitutionality of partisan gerrymandering was an issue best litigated in state courts.
While racial gerrymandering remains unconstitutional, it can still occur when it becomes conflated with partisan gerrymandering, said Stephen Menendian, the study's lead researcher of the study and assistant director of the institute.
"Regions and states that have a lot of racial residential segregation make it much easier for state legislatures to draw boundaries in ways that are ostensibly political gerrymanders but actually racial gerrymanders," he said.
For instance, Menendian said, the state legislators in charge of mapmaking can make assumptions about which political party will draw voters from people of certain races, and then draw district lines accordingly.
Severe partisan gerrymandering leads to a disparity in political representation. One party may receive a majority of the votes in an election, but end up as the minority in the state legislature or Congress because of map manipulation. And this issue has only become more acute with modern technology.
"In 1890 you didn't have a computer that allowed you to generate literally thousands of scenarios in a minute, and then select the most fine point scenario that allowed you to maximize your political advantage," Menendian said. "It's basically politicians selecting voters, rather than the other way around."
Gerrymandering has larger implications on policies, including those related to ballot access, that are enacted at the state and federal levels. To make the mapmaking process more fair and representative, some states have adopted independent or hybrid commissions. However, politicians still have control over a majority of the state legislative and congressional maps.
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