WILL U.S. STATES EVER ADOPT FAIR REDISTRICTING MAPS?

 

                                                  …California’s latest fair redistricting map

 

Only four U.S. states use redistricting maps developed independent of any elected officials.

 

Last week, the Ohio Supreme Court did what a number of states need to do when they threw out a pair of state legislative redistricting maps, as well as a newly drawn congressional map. The twin rulings highlighted how the good intentions of the Ohio voters can be scuttled by Ohio Republican politicians with a partisan agenda.

The decision on the state legislative maps was also further proof that redistricting commissions, often seen as the solution to avoid partisan gerrymandering, are not always the answer. It showed that who controls these commissions can be the difference between fair lines and partisan lines.

The 4-3 court ruling on the legislative maps found that the work of Ohio’s bipartisan redistricting commission, still amounted to partisan gerrymandering favoring the Republicans, who just happen to control both the Ohio state House and Senate and the governor’s mansion.

A 4-3 Ohio Supreme Court ruling negated the congressional district map for the same reason.  Because those lines were the work of the state’s General Assembly, not the non-partisan commission. “The evidence in these cases makes clear beyond all doubt that the General Assembly did not heed the clarion call sent by Ohio voters to stop political gerrymandering,” Justice Michael Donnelly wrote in the majority opinion.

If only we had that same kind of non-partisan thinking in the highest court in Washington D.C. that has a partisan split of 6 to 3.

Ohio revised its redistricting process a few years ago, with voters approving changes to the state constitution designed to reduce the partisanship.  A partisanship that traditionally controls redistricting after each 10 year census and now should create fairer and more competitive districts. The General Assembly has responsibility for congressional redistricting while a bipartisan commission is tasked with redrawing state House and Senate lines.

When the proposed changes to the Ohio state constitution were being put before the voters, a committee was formed to promote the measure issued a flier that, among other things.  The new process was supposed to protect against gerrymandering “by prohibiting any district from primarily favoring one political party,” while it required districts “to closely follow the statewide preferences of the voters.”

But the high Ohio court noted that, while the statewide legislative vote over the past decade had favored Republicans by about 54%t to about 46%, the new maps offered would have given the Republicans the overwhelming majorities in the House and Senate.  The difference would have been between 61 and 68 of the 99 seats in the House and between 20 and 24 of the 33 seats in the Senate to the GOP.

The National Council of State Legislatures (NCSL) uses two broad criteria to assess the type of redistricting process used in each U.S. state.  Those where legislators have primary control and those where legislators do not have primary control.  Overall, 35 states put the power primarily in the hands of the legislature while only 15 give power to non-legislative entities.  This is according to the director of elections and redistricting at the NCSL.

But the shape and powers of those non-legislative entities vary, as the Ohio case shows.  Just four states, including Arizona, California, Colorado and Michigan, they have systems that are basically independent of any elected officials. The rest of the states vest some power in the elected officials and that includes Ohio, whose commission is made up of seven state members: the governor, the secretary of state, the Auditor, the House Speaker, the State Senate President, the House Minority Leader and a State Senator.  In this case in today’s Ohio, that is 4 Republicans to 2 Democrats.  And it’s only 4 to 2, because the one extra state member-Senator, is one of the stated 2 Democrats. 

The changes of the voters decision in Ohio called for the redistricting commission to approve legislative maps with a bipartisan majority of the body and stipulated that the majority must include two members from each of the parties.

The commission itself didn’t draw the new legislative districts.  Instead, the Republican and Democratic legislative caucuses separately produced their own maps, which then came to the commission members for debate and discussion. There was some negotiation between the two sides, but the Republicans enjoyed a 5-2 majority. Ultimately, the two Democratic members of the commission said they would not support the Republican-produced maps.

The three statewide officials, were largely bystanders, though they testified that they had tried to help negotiate an agreement between the Republican and Democratic legislators, but the impasse could not be overcome. The three elected officials eventually voted for the gerrymandered maps.  In other words, they caved-in to the Republicans.

But one state official member said he cast his vote “with great unease,” saying the map had many shortcomings, “but they pale in comparison to the shortcomings of this process.”  The official said he was disappointed with the outcome. “I’m not judging the decisions one way or another,” he said, adding that was up to the court to do. “What I am sure in my heart is that this committee could have come up with an answer that was much more clearly constitutional. I’m sorry we did not do that.”

The Republican legislators on the commission defended the maps but with explanations that the court found seriously wanting.  In part, they actually said the new constitutional provisions did not require them to meet the test for fairness, arguing that wording was “aspirational” rather than “mandatory”.  The court said this was an incorrect reading of the new constitutional requirements.

The second defense was less legalistic and more blatantly political. In defending the lopsided advantage for Republicans, one GOP legislator explained that they had looked at statewide results in two ways. One example was the portion of the vote each party had received over the previous decade, the 54% vs 46% advantage for Republicans.

The other measure used was the number of partisan statewide elections won by Republican over the previous 10 years compared with the number won by Democrats.  That came out to 13 for Republicans and only 3 for Democrats, or 81 percent for Republicans.  With that, he said the map met constitutional standards as the Republican advantage was somewhere between 54% and 81%.  Not even close to what the voters wanted.

Fortunately, the court concluded otherwise, saying the tally of wins and losses in individual races was not a measure of the overall sentiment of voters.

The court’s ruling noted that an expert witness in the legislative case, an expert of Harvard University, used a simulation redistricting algorithm and generated 5,000 possible plans, “none of which favored a party as strongly as the plan adopted by the commission.”

Redistricting commissions have proved themselves in some other states, particularly those where the control is vested almost entirely in citizens rather than politicians.  In both Colorado and Michigan, (As in California) where citizens ultimately control the drawing of lines, assessments of new maps have noted the lack of partisan advantage for either party.

In the Ohio case, Chief Justice Maureen O’Connor, a Republican, had joined with three Democrats to strike down the legislative maps.  In her concurring opinion, O’Connor highlighted the weaknesses of the system Ohio has adopted.

In her opinion, she wrote, “Having now seen firsthand the current Ohio Redistricting Commission, comprised of statewide elected officials and partisan legislators, is seemingly unwilling to put aside partisan concerns as directed by the people’s vote, Ohioans may opt to pursue further constitutional amendment to replace the current commission with a truly independent, nonpartisan commission that more effectively distances the redistricting process from partisan politics.”

If only more state Supreme Courts were like that of Ohio, where the district lines are drawn independent of any partisan elected officials.  We would then, all have more confidence in our state governments.

Hopefully more states will make decisions like those of Arizona, California, Colorado and Michigan, but I’m not holding my breath.

Copyright G. Ater 2022