H.R. 1 — the omnibus electoral reform bill recently unveiled in the House—has received surprisingly little attention on this blog. Sure, it’s not going to be passed by the Senate or signed by President Trump. But it probably is going to be passed by the House, thus marking the first time that proposals like automatic voter registration, redistricting commissions, and multiple-match public financing have been endorsed by a majority of that body. If Democrats win unified control of Washington in 2020, it’s also likely that some or all of H.R. 1 will become law. If that happens, it would be a development of earthshaking significance, at least as important as the enactment of the Voting Rights Act in 1965 or the Federal Election Campaign Act in 1974.
In this post, then, I want to summarize H.R. 1’s section on redistricting commissions and suggest some revisions to it. Part 2 of Title II of H.R. 1 would require states to use independent commissions to design their congressional plans. Each commission would have fifteen members—five Democrats, five Republicans, and five Independents—all chosen randomly from a pool of qualified applicants. Each commission would draw its map based on the following criteria: (1) population equality, (2) compliance with the Voting Rights Act, (3) compliance with additional racial requirements (no retrogression in, or dilution of, minorities’ electoral influence, including in coalition with other voters), (4) respect for political subdivisions and communities of interest, and (5) no undue advantage for any party. And a plan would need majority support to be enacted, including the backing of at least one Democrat, one Republican, and one Independent.
If adopted, this proposal would be a historic milestone in the battle against gerrymandering. The structure of each commission would prevent the intentional manipulation of district lines for partisan advantage. Randomly selected commissioners would have far less incentive than sitting legislators to try to benefit their party. Additionally, no Democratic commissioner would consent to a map that aimed to help Republicans, and vice versa. The proposal would thwart unintentional gerrymandering too. A key provision prohibits plans that, “when considered on a statewide basis, unduly favor or disfavor any political party.” This language bars severe partisan asymmetries even if they arise accidentally rather than purposefully.
As beneficial as the proposal would be—finally bringing American redistricting in line with how the activity is conducted in the rest of the world—there’s still room for improvement. First, the clause barring commissions from considering “the political party affiliation or voting history of the population of a district” should be deleted. Of course, such electoral data can be used to gerrymander. But it can also be used for the opposite reason: to pursue partisan fairness in how parties are treated by a map. This goal of equitable treatment, moreover, is one that’s required by H.R. 1 itself. Commissions should therefore be allowed to consider electoral data because, without it, they would have no way of knowing if their plans unduly favor or disfavor a party. Favoritism can be analyzed only through election results.
Second, the proposal should not compel states to create commissions but instead should give them a choice: Either establish a commission along the lines specified by H.R. 1, or the federal government will set it up for you. This choice is necessary to avoid a violation of the anti-commandeering doctrine, which prohibits the federal government from “conscripting” states into carrying out its preferred policies. An outright mandate that states create commissions might be seen as unlawful commandeering. On the other hand, letting states decide for themselves whether to establish commissions preempts the constitutional objection. And it does so without any real cost since if states fail to act, the federal backstop would still ensure that their maps are crafted by commissions rather than politicians.
Third, the proposal should be extended from congressional to state legislative redistricting. This extension could not rely on Congress’s Elections Clause authority, which applies only to federal elections. But it could be based on Congress’s power to enforce the Fourteenth Amendment, which, the Supreme Court unanimously agrees, prohibits severe partisan gerrymandering. Gerrymandering is just as rampant at the state legislative as at the congressional level. H.R. 1 is also well suited to preventing gerrymandering since, as noted above, it stops both the intentional and the unintentional distortion of district lines. H.R. 1 is thus a congruent and proportional response to the constitutional problem—exactly what is necessary for Congress to be able to enact it.
And fourth, the word “single-member” in the provision requiring states to “establish single-member congressional districts” should be excised. This seemingly minor deletion would open the door for states to experiment with multimember districts using cumulative, limited, or preferential voting. All of these systems promise to avoid the pathologies of single-member districts: strange-looking lines, vulnerability to gerrymandering, highly disproportionate representation, and so on. But all of the systems are currently blocked by a federal law that insists on single-member districts at the congressional level. If this insistence were relaxed, then states would be able to fight gerrymandering with a tool even more potent than an independent commission: a voting scheme that renders gerrymandering almost impossible, no matter how districts are drawn.
This post was originally published on Election Law Blog on Jan. 9.