How States Can Disregard SCOTUS’s Pro-Gerrymandering Decision

Written by: Nick Licata and Roger Scott


The Supreme Court gave the green light to 30 states (with 46% of the Congressional seats) to gerrymander Congressional and state legislative districts in 2021 as they draw district maps after the 2020 census  (Rucho Et Al. V. Common Cause).  Citizens in the other 20 states will receive some or full protection from partisan gerrymandering by either commissions or an independent demographer, in the case for Missouri. Citizens are deprived of their voting rights by gerrymandering because it locks domination of one party in a state for decades. In essence, politicians choose their voters instead of voters choosing their representatives.

In Maryland, Democrats in 2001 gerrymandered one district to increase their representation in Congress by one district.  In 2018, they won seven out of the eight seats.  Republicans in North Carolina instructed map makers to draw districts so that Republicans would win 10 out of 13 seats in spite of how many votes Republicans receive.  In 2018 Democrats received 48% and Republicans 50% of the total votes for Congress but won only three out 13 seats in Congress.  The table below lists the states in which the number of seats elected by one party was disproportionate to the total votes for Democrat candidates secured in that state, excluding independents.

  2018 House of Representatives Election results
Total # districts Total % Democratic vote in State # Democratic districts won Democratic districts won representing % of total D vote. % Difference in Democratic representation mostly due to gerrymandering
North Carolina 13 49% 3 23% negative 26%
Maryland 8 67% 7 88% positive 21%
Wisconsin 8 54% 3 38% negative 16%
Texas 36 48% 13 36% negative 12%
Kentucky 6 40% 1 17% negative 23%
Ohio 18 48% 4 22% negative 26%
Total House Districts 89 31 35%

Data compiled from various sources by the authors.

From a review of the table, it is evident that the Republicans have used modern technology to finely tune gerrymandering by concentrating the voters of the party out of power in the fewest districts.  The result is convoluted district boundaries and supermajority state legislatures that can overturn governor vetoes and maintaining one-party power after each census by gerrymandered districts. The president of the Brennan Center for Justice Michael Waldman noted that highly precise gerrymanders dilute the voting strength of an emerging nonwhite majority.

Citizens can trump the SCOTUS gerrymandering decision by organizing in the states. Former Attorney General Eric Holder, through his organization the Nation­al Democratic Redistricting Committee (NDRC), is pursuing such a strategy. He described his reason to a Mother Jones reporter this summer, “This is a recognition on the part of the Democratic Party, on the part of progressives, that we need to focus on state and local elections to a much greater degree than we have in the past.”

Specifically, there are two distinct paths to fight gerrymandering at the state level.

First, they can use the initiative process to amend the state constitution and second make appeals to their state supreme court.  In 2018 the voters passed state constitutional amendments to establish independent redistricting commissions in Colorado, Michigan, and Ohio; an advisory commission in Utah; and an independent demographer in Missouri.  In 2019 another three states, New Hampshire, Virginia, and Arkansas will likely authorize constitutional amendments to establish independent commissions.  A citizen group in Oklahoma is working on an independent commission and plans on implementation in 2021.

These commissions can draw new state legislative and congressional boundaries from the 2020 census, since the census data is scheduled to be released to the states by March 31, 2021, and by that time the commissions should have been established.

Most independent commissions consist of a set proportion of Democrats, Republicans, and independents that draw district lines under a transparent process involving all parts of the state.  Lines must be drawn with criteria such as compactness, contiguity, respect of political boundaries and preservation of communities of interest.

In 2018, except for Utah, voters approved independent commissions with large majorities. By including a robust number of independents on proposed commissions, frustrated independents form coalitions with members of the out party to pass initiatives with large majorities. The record shows that states with an initiative process can create an independent commission in state constitutions regardless if they are red, blue or purple states.

These ten states have initiative power but currently have no protection against gerrymandering: Massachusetts, Montana, Nebraska, Nevada, Oklahoma, Oregon, North Dakota, South Dakota, and Wyoming. Reformers could organize initiatives in these states to accomplish Virginia and New Hampshire’s successful effort to get their state legislatures to authorize commissions.

Citizen efforts in these states could use the support of presidential candidates, national public interest organizations and party national committees to help them launch initiatives to create independent commissions. And for the 21 states (39% of members of the US House of Representatives) that do not have initiatives, citizens there could use those allies to elect new representatives who would vote for a constitutional amendment that would allow citizen introduced initiatives.

The second path is for citizens to bypass their state legislature if it is hostile to the two above approaches for establishing a redistricting commission. In these instances, they need to challenge gerrymandered districts up to their state supreme court on the grounds that they violate their state constitution.

Most states include language that is similar to that found in the Pennsylvania constitution which says, that “elections shall be free and equal” and no one shall “interfere to prevent the free exercise of the right of suffrage.” The Pennsylvania Supreme Court based its anti-gerrymandering decision on this language League of Women Voters of Pennsylvania v. Pennsylvania and the US Supreme Court’s majority agreed with them. But Pennsylvania’s court decision was possible because new justices were elected to their state supreme court, demonstrating that elections to state court positions are too critical to ignore.

The following states (Michigan, Pennsylvania, and Texas, North Carolina, Wisconsin, Michigan, and Ohio), which have been heavily gerrymandered, all have crucial state Supreme Court elections up in 2020. Even though some of them have created commissions it is necessary to protect their existence and performance by electing justices who will deflect challenges to those commission’s proper functions.

Also, only Kentucky has a state supreme court justice position up for election this November 2019. It is a nonpartisan race between Court of Appeals Judge Christopher Shea Nickell and Republican State Senator Whitney Westerfield. However, being a Republican running as an impartial judge may be difficult for voters to believe and could provide an opening for the public to choose a justice that would oppose gerrymandering. This is particularly true in Kentucky, where the latest poll from Morning Consult, shows that their strongly partisan Senator Mitch McConnell received a whopping 50 percent unfavorable rating.

The bottom line is that State Supreme Courts, if they wish, can redraw their congressional and state district maps in adherence to their state constitution, despite the SCOTUS decision.

The above strategies can achieve a win for public accountability.  Now we need to demand all presidential candidates support these efforts, for the good of all citizens not those of any particular party.  This is an urgent matter since the states will redraw districts in 2021 or early 2022 and most of those will stick for a decade. The Supreme Court’s decision to allow states to continue gerrymandering, can and must be rebuffed at the state level.

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