The problem: Not all boundary commissions are created equal. Only some of the commissions set up for the 2020 cycle were truly independent, and the way they were designed had a bearing on how they functioned – or did not function –.
“When the commission isn’t fully independent and isn’t made up entirely of citizens, it’s less likely to function properly,” said Mark Gaber, senior director of redistricting at the Campaign Legal Center.
Michigan’s commission – a citizen-focused entity that was created by a 2018 ballot initiative – was considered a notable achievement in how it produced redistricting plans that will be competitive for Democrats in a state. purple that had previously been hugely favored by the GOP. gerrymandering.
On the other hand, Ohio, where the redistricting system was also overhauled by a 2018 constitutional amendment approved by voters. That commission — which was made up entirely of elected politicians, a majority of whom are Republicans — had its cards repeatedly thrown out by the state Supreme Court for failing to meet the demands of the reform initiative.
“Ohio is kind of like the poster child of the worst of all worlds,” said Michael Li, senior democracy program counsel at the Brennan Center, a voting rights and reform think tank. criminal justice at New York University Law School. .
Here are key lessons learned from the performance of various redistricting commissions across the country and where they have worked best.
Who has the last word was a key factor in the success of commissions
Whether a supposedly independent redistricting commission was truly independent depended on who had the final say on the maps it offered.
In four states, advisory commissions draw draft maps of Congress, but it is ultimately up to the state legislature that the proposed maps will be adopted. Only the Maine legislature did.
“Unfortunately, most of these state legislatures have essentially ignored the good work of the advisory commissions,” said Kathay Feng, national redistricting director at the voting rights organization Common Cause. New Mexico Republicans have accused the Democratic-controlled legislature of largely ignoring the work of its Citizens’ Advisory Commission, though a GOP lawsuit has failed to block the Congressional plan passed by the House of Commons. legislature. And in Utah, where the Congressional and State District Advisory Commission plans were sidestepped by state lawmakers, similar litigation is ongoing.
“The kind of advisory boards clearly don’t work,” Gaber told CNN. “It’s not enough…without good actors on the other side, who are going to pay attention.”
Commissions that left politicians in the mix were more dysfunctional
It was also difficult for a commission to be truly independent if its members included politicians, voter advocates say, citing the Ohio commission as the prime example. The commission — formed after the legislature crafted a compromise measure to counter a citizens’ initiative — is made up of majority and minority members of the Ohio legislature, as well as three state officials, all of whom were Republicans this cycle.
His work was a total disaster, with the state Supreme Court repeatedly refusing to approve the commission’s congressional and state legislative plans for their failure to comply with the constitutional amendment. But the commission has now run out of time to fix the maps for the 2022 election, meaning voters will likely vote in districts the state’s highest court has ruled illegal.
“When the commission is made up of or includes politicians, then dysfunction is going to happen,” Gaber said, citing both partisan interests and personal conflicts around protecting their own seats.
Virginia’s redistricting commission — where an even number of Democratic and Republican lawmakers joined the eight citizen members — has also been plagued with dysfunction, but with a less chaotic resolution. When the commission became deadlocked, the Virginia Supreme Court was able to step in and produce maps.
Virginia Democratic State Senator Mamie Locke said the presence of lawmakers on the committee was partly responsible for its failure to reach an agreement. Locke, herself a commissioner, told CNN that the desire to protect partisan advantage, as well as protecting individual incumbents, undermines the process.
“If I had to do it over again, I’m not sure I would have had lawmakers on the committee,” she told CNN, adding that the citizen members would also have benefited from more training.
A legislature’s control over the selection of citizen members can also undermine commissions.
State Sen. William M. Stanley Jr., a Republican from Virginia who served on the commission, countered that he believed lawmakers would eventually come to an agreement, but citizen members were unprepared to how to build consensus “for long hours, through frustrating moments.” He also said the role played by the legislature in selecting citizen members also created problems.
Other commissions, such as New York’s, have given legislators a lead role in forming citizen-led commissions. The New York advisory commission offered competing maps of its Democrat- and Republican-affiliated membership, but did not submit a follow-up recommendation. This gave the Democratic-controlled legislature an opportunity to craft a heavily Gerrymander plan that was rejected in state court.
During Colorado’s commissioner selection process, lawmakers were able to narrow the pool of potential citizen members, and “to some degree, the commissioners wore their partisan hats a little more actively,” Feng said.
“On some key issues, then, sometimes these commissioners will split along partisan lines or they will get into very, very heated arguments with each other along partisan lines,” Feng said.
“In California, a roster is prepared of qualified people, and lawmakers are given a number of strikes, similar to jury strikes,” Li said. “So the California system is very difficult to play.”
The role of the courts – or lack thereof – often determined whether a card was ultimately fair
A silver lining of the dysfunction around the Virginia commission is that the state Supreme Court was given the opportunity to address the impasse and ultimately produced more competitive maps for Republicans than the old plans.
“One of the benefits, even when you have a lousy commission, is that you’ve created enough of a case for the court to look at and can create a fair alternative,” Feng said.
The court’s involvement could make the Virginia commission in future rounds “more aware of the need to draw the maps through the commission and get consensus, and then continually let the Supreme Court make those decisions at their place,” Stanley said.
The court battle has turned ugliest in Ohio, where voters will vote in congressional districts that the state Supreme Court has ruled were unconstitutionally drawn.
Feng pointed to an “escape hatch” the lawmaker created in the competing proposal he put forward to create a commission, where “even if a partisan or racial gerrymander has been found, a court cannot impose a remedy. by himself”.
“He must return to the legislature to be drawn,” Feng said. “And so that the circular, multi-layered stages of Dante’s Inferno were imposed on Ohio.”
Assumptions about political dynamics can affect commission design
Some of the problems encountered by the commissions, particularly in New York and Ohio, resulted from assumptions about policy made when designing the commission.
“Sometimes you can overthink these things,” Li said. “And you can design things like for a world that no longer exists, because politics changes.”
When New York voters approved the proposal in 2014 that created its advisory commission, Republicans effectively controlled the state Senate and, in theory, the divided state government would have an incentive to defer to the committee’s proposal, according to Li.
“But in a world where Democrats have exclusive control of the process, Democrats have an incentive to reject the committee’s cards,” Li said, since the Democratic-controlled legislature could then draw its own.
In Ohio, cards passed based on a party line are only good for two cycles, which would be riskier for Republicans if Ohio was the swing state it once was.
“The Ohio reforms were designed on the assumption that Ohio was a battleground state, and that’s just not the case anymore,” Li said. “And now Republicans are like, ‘ Well, we’re going to adopt a map. It’s only good for four years, and then we’ll redraw the map in four years. We have no problem with that.'”