Voices & Choices

Gerrymandering Antidote: the Fair Representation Act

Gerrymandering Antidote: the Fair Representation Act

The Supreme Court ruled on Thursday that federal courts have no constitutional role to play in preventing partisan gerrymandering. The decision highlights the increasing importance of systemic reforms, like multi-winner ranked choice voting, that put representation directly into the hands of voters, rather than in the hands of those who draw the maps.

The case, Rucho v. Common Cause, asked the Court to confront admitted partisan gerrymanders in North Carolina and Maryland. A member of North Carolina’s General Assembly redistricting committee, which drew one of the maps under scrutiny, had explained: “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

Rucho consolidated challenges to this North Carolina map with a lawsuit against a Democrat-drawn map in Maryland. The Republican Congressman who filed the Maryland suit enjoyed a 21 percentage point victory in 2010, before redistricting, but a 28 percentage point loss in 2012. 

Chief Justice Roberts, writing for the five justices in the majority, said that the maps “seem unjust.” But he held that Court could not strike them down because there was no legal principle that would allow the Court to define partisan gerrymanders. This is a theory the Court has toyed with for decades, though until the replacement of Justice Kennedy with Justice Kavanaugh, it remained a minority opinion. Justice Kennedy hinted that there may be a standard that could win five votes on the Supreme Court in 2004, and since then, identifying that standard has been called the “holy grail” of election law. However, Thursday’s opinion closes the door on that search, declaring that no such standard exists.

With the courts stepping out, addressing the utterly unjustifiable practice of gerrymandering is in the hands of voters and lawmakers. As the Brennan Center’s Michael Li noted, the public is attentive to this issue now in a way that they were not before, and efforts to fight gerrymandering are now popular political issues. The question becomes: how to best do it?

Many efforts will now go to state ballot initiatives or state legislatures. Those efforts will make a difference. However, it is a relatively small proportion of states where voters can introduce laws to the ballot, and asking state legislatures to give up their own gerrymandering powers will be challenging: the places that need reform the most will probably be the least likely to adopt it. What we need is a federal solution.

That is the approach taken by the Fair Representation Act. Rather than attempting to force fairness into our inherently broken winner-take-all system, the Fair Representation Act would institute a different system: the single-transferable vote form of ranked choice voting. Instead of single-winner districts, groups of representatives would be elected statewide or in larger, multi-winner districts. With fewer and more diverse districts, gerrymandering would be difficult, and the ranked choice voting system would make it all but impossible by ensuring that nearly every voter would have the power to elect someone they support.

With ranked choice voting in multi-winner districts, every election would be more competitive than today, results would be more reflective, and governance would improve. That is because the system would empower different groups of voters from within each multi-winner district to elect their own representatives; this includes Democrats in majority Republican districts and vice versa, communities of color in majority-white districts, and voters who do not neatly align with the two major political party agendas, like economically conservative Democrats or socially liberal Republicans. When nearly every group of voters in every region of the country has the power to achieve real representation, gerrymandering ceases to be a viable tool.

None of this is theoretical. Multi-winner ranked choice voting has been used in major United States cities to improve governance, it has been used to remedy vote dilution under the Voting Rights Act, and a related method (cumulative voting) served to create better governance in the Illinois state legislature for over 100 years. With this setback in the Supreme Court, it is an ideal time to consider whether it should become the new national norm.

Rep. Don Beyer introduced the Fair Representation Act in June of 2017, and he plans to reintroduce it in summer 2019. As Lee Drutman wrote in the New York Times after a June 2018 defeat for gerrymandering reformers at the Supreme Court, “if there’s a silver lining to the justices’ punt on gerrymandering, it may be this: Perhaps it can motivate reformers to look beyond both the Supreme Court and past the single-winner district.”


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