A Look Ahead To Redistricting In 2021

The Washington Post reports that “Democrats failed to pick up any state legislative chambers this November, and they could face the consequences of that for the next decade.” Where Democrats will be locked out of power in redistricting battles next year:

In many states, it’s up to politicians in state legislatures to do that. Republicans controlled the mapmaking process in most states after a stellar 2010 election and were able to draw state and congressional districts that made it harder for Democrats to regain power at all levels. After a stronger-than-expected performance this November, Republicans will control map drawing in a majority of chambers next year, too, although to a slightly lesser degree.

Here are some of the states where Democrats still have a foot in the door in redistricting despite their poor 2020 election — and states where they won’t but could really use one.

States where Democrats have a foot in the door

Michigan

Michigan is one of a growing number of states with an independent redistricting commission. Voters overwhelmingly approved a constitutional amendment in 2018 to assign the map-drawing duties to a group of citizens rather than leave it to politicians.

But some Michigan Republicans have tried to argue that the commission is unconstitutional and want to defund it. So Democrats wanted to win even more control of state government to brace for the political fight they know is coming over these maps, no matter who draws them.

They tried this November to flip the Michigan state House (the state Senate is so far in Republican control it wasn’t in contention for them.) But they didn’t. They’ll still have the governor’s mansion to push back on any GOP-led changes to the independent commission.

Still, Democrats are hopeful that the independent commission will draw fairer lines, and then they’ll have a new map for state and congressional districts in time for 2022 elections.

Pennsylvania

Like Michigan, Pennsylvania is a swing state with divided control: a Democratic governor and Republican legislature. Democrats had hoped to flip the state House — and maybe the state Senate in a really good year — but didn’t flip either.

Still, Democrats may have more of a cushion here than in other states. Pennsylvania had been known as one of the most extremely gerrymandered states until 2018, when the state Supreme Court declared GOP maps unconstitutional because they were so partisan and forced the drawing of new ones. That played a huge role in helping Democrats win back the majority in Congress in 2018. Democrats are probably hoping that the state court can play a backstop to any map-drawing battles they lose this year. [The Pennsylvania Supreme Court currently has a 5-2 Democratic majority.]

Wisconsin

Democrats control the governor’s mansion and had no hope of trying to get the legislature in their control. But they did manage to stop Republicans from winning a veto-proof majority in the state legislature that would have given the GOP near-absolute control over the mapmaking process.

The likeliest outcome in Wisconsin is that Democrats and Republicans can’t agree on maps, and it gets booted to the courts. That could help Democrats, who tend to believe that the courts order fairer-drawn maps than Republicans would if left to their own devices. [The Wisconsin Supreme Court currently has a 4-3 Republican majority.]

REMINDER: in Rucho v. Common Cause (6/27/19) the U.S. Supreme Court ruled 5-4 that “Partisan gerrymandering claims present political questions beyond the reach of the federal courts.” The upshot of the ruling is that the federal courts cannot strike down district maps because they are designed to help or hurt a particular political party. PRO TIP: Legal challenges to district maps must be brought in state courts alleging a violation of state constitutional provisions or laws. Get your draft pleadings ready.

States where Democrats will have no foot in the door — and could really use one

Florida

This swing state at the presidential level is dominated by Republicans at the state level, who have controlled the governor’s mansion and state legislature for two decades. And that means Republicans have had control over state and congressional district boundaries for two all-important redistricting opportunities as Florida grows in population and changes in demographics. They are about to start their third.

You can see the results of Republican power at the state level on Florida’s congressional delegation. Democrats will control just 11 of Florida’s 27 congressional districts next year, and that’s before Republicans get to draw new maps.

Georgia

Georgia Democrats proved themselves a force at the presidential and U.S. Senate level this November. (Democrats managed to push two GOP-held Senate seats to runoffs in January. In the battle for the White House, we’re still waiting on results, but Democrats have a chance to win Georgia for the first time in nearly three decades.)

Like Florida, some Democrats were hopeful that a blue tsunami in November had the potential to flip the state House. But that didn’t happen. Which means that like Florida, the state is controlled by Republicans, and they will get to decide state legislative and congressional districts for the next decade.

Texas

Democrats picked up zero congressional seats in Texas, despite hoping to pick up several. They had hoped to pick up an entire state legislative chamber, the state House, which would go a long way toward helping House Democrats keep control of Congress by giving them a say in the map-drawing process for this major state. They won’t have such a foot in the door now; the state government remains entirely controlled by Republicans.

Still, Democrats protected about a dozen state legislative incumbents who won in 2018 in tough seats. At least they didn’t go backward in their foothold in the state legislature, one Democrat put it.

Iowa

Iowa has an “independent” redistricting commission, but the state legislature has influence over approving those maps. And Democrats are worried that Iowa Republicans could make the map-drawing process more partisan.

Democrats were trying to flip the state House to protect against such changes. They were four seats away from taking control, but instead, Republicans gained six state legislative seats there, strengthening their majority.

North Carolina

The governor of North Carolina will remain a Democrat after November’s elections. But unlike in many other states, he doesn’t have the authority to veto a legislature’s electoral maps. Democrats made it a big priority to try to flip both chambers and ended up flipping neither. Republicans actually strengthened their majorities in both.

Ohio

Ohio voters recently approved a constitutional amendment to try to reduce gerrymandering, but the Republican-controlled state legislature still controls much of the process. Republican state lawmakers also have an opening in the new commission to try to tweak their districts mid-decade.

Democrats wanted to flip the partisan control of the state Supreme Court so they could have power to change Republican-drawn maps via the courts. They ended up falling one seat short.

Kansas

Kansas has a Democratic governor who could veto maps. But Republicans have a supermajority in the state legislature to override her veto. Democrats tried to break that supermajority in November but weren’t able to.

The Post reporting is not an entirely accurate portrayal of the redistricting process. A number of states have enacted some version of independent redistricting commissions since the last redistricting with the intended hope of eliminating gerrymandering, as the Associated Press reported last year. Number of states using redistricting commissions growing:

[A] growing number of states are shifting the task to independent or bipartisan commissions, or making other changes intended to reduce the likelihood of partisan gerrymandering.

Here’s a look at some of the states using commissions or other nontraditional methods for the next round of redistricting, after the 2020 Census.

ALASKA — A five-member commission draws districts for the state House and Senate under a 1998 amendment to the state constitution. Two members are appointed by the governor and one each by the presiding officers of the House and Senate and the chief justice of the Supreme Court. Districts must be compact, contiguous and contain “a relatively integrated socio-economic area.” Alaska has only one congressional district.

ARIZONA — Congressional and state legislative districts are drawn by a five-member commission established under a ballot measure approved by voters in 2000. Twenty-five potential redistricting commissioners are nominated by the same state panel that handles appeals court nominees. The Legislature’s two Republican leaders choose two commissioners from 10 Republican candidates, and the two Democratic leaders chose two from their party’s 10 nominees. Those four commissioners then select the fifth member, who must be an independent and serves as panel chairman. The constitution says “competitive districts” should be drawn so long as that doesn’t detract from the goals of having compact, contiguous districts that respect communities of interest.

CALIFORNIA — Voters approved a pair of ballot measures, in 2008 and 2010, creating a 14-person commission to draw congressional and state legislative districts. A state auditor’s panel takes applications and selects 60 potential redistricting commissioners — 20 Democrats, 20 Republicans and 20 others. The state Assembly and Senate majority and minority leaders each can eliminate two nominees from each political category. Eight redistricting commissioners — three Democrats, three Republicans and two unaffiliated members — are randomly selected from the remaining pool of candidates. Those commissioners then select an additional two Democrats, two Republicans and two unaffiliated members. Approving a map requires nine votes, including three from each political category of members. The constitution says the districts should be compact and keep cities, counties and communities of interest in tact to the extent possible.

COLORADO — Congressional and state legislative districts will be drawn by a 12-person commission, under a pair of constitutional amendments approved by voters last November. The commission will consist of four Republicans, four Democrats and four independents selected from a pool of applicants. Half will be chosen randomly and the rest by a judicial panel. Nonpartisan legislative staff will draft proposed maps for the commission’s approval, which will require at least eight votes including two from independents. The state Supreme Court will then review the maps to determine whether legal criteria were followed. The districts must be compact, preserve communities of interest and “maximize the number of politically competitive districts.”

HAWAII — Congressional and state legislative districts are drawn by a nine-person commission. The majority and minority party leaders in the House and Senate each appoint two commissioners. Those eight then pick a ninth commissioner. If they can’t agree, the ninth member is appointed by the state Supreme Court. Districts cannot be drawn to “unduly favor a person or political faction.”

IDAHO — A six-member commission is responsible for drawing both congressional and state legislative districts. Two-thirds of the commissioners must vote to approve a map. The majority and minority party leaders in each legislative chamber each select one person to serve on the commission; the state chairmen of the Republican and Democratic parties also each select a commissioner. Mapmakers should avoid “oddly shaped” districts and preserve “traditional neighborhoods and local communities of interest.”

IOWA — The nonpartisan Legislative Services Agency draws maps for congressional and state legislative districts, which are submitted to the Legislature for approval. Districts must consist of “convenient contiguous territory” and be reasonably compact. Districts cannot be drawn to favor a political party, incumbent or other person or group.

MICHIGAN —Under a constitutional amendment approved by voters last November, congressional and state legislative districts will be drawn by a 13-member citizens’ commission. It will consist of four Democrats, four Republicans and five independents randomly selected by the secretary of state from among applicants. Approval of districts will require a majority vote with support of at least two Democrats, two Republicans and two independents. If that fails, each commissioner would submit a plan and rank their options by preference, with the highest-ranked plan prevailing. In case of a tie, the secretary of state would randomly select the final plan. Districts must be compact, contiguous, limit splitting of counties and cities, “reflect the state’s diverse population and communities of interest,” not favor or disfavor incumbents, and not provide a disproportionate advantage to any political party.

MISSOURI — A constitutional amendment approved by voters last November will require a new nonpartisan state demographer to draft maps for state House and Senate districts. The demographer is to design districts to achieve “partisan fairness” and “competitiveness” as determined by statistical measurements using the results of previous elections. Districts also shall be contiguous and limit splits among counties and cities. Compact districts are preferred but rank last among the criteria. The maps will be submitted to a pair of existing bipartisan commissions for approval. The governor will appoint a 10-member commission for the Senate districts, choosing five Republicans and five Democrats from among nominees submitted by the state parties. For the House, the governor will appoint an equal bipartisan commission of 16 members from nominees submitted by Republican and Democratic congressional district committees. Congressional districts still will be drawn by the state Legislature.

MONTANA — A five-person commission draws state legislative districts and would also draw congressional districts if Montana’s population grows enough to have more than one. The majority and minority leaders of each legislative chamber appoint one member each. Those four then select a fifth member, who serves as chairman. Districts must be compact and contiguous.

NEW JERSEY — Congressional districts are drawn by a 13-member commission, which requires a majority vote to approve a map. The majority and minority leaders of each legislative chamber and the chairmen of the state’s two major parties each appoint two members. Those 12 select one more member. A separate 10-member commission draws state legislative districts, with the chairmen of the two major political parties each appointing five members. If they can’t agree on a plan, the Supreme Court appoints an 11th member. State legislative districts must be contiguous and as compact as possible.

NEW YORK – Under a constitutional amendment approved by voters in 2014, a 10-member commission will draft districts for both Congress and the state Legislature. The majority and minority leaders of each chamber each appoint two members to the commission. Those eight members then select the other two commissioners. Their maps are submitted to the Legislature for approval. Districts shall be compact and contiguous and shall not be drawn to discourage competition or to favor incumbents, particular candidates or political parties.

OHIO — A pair of voter-approved amendments will require minority-party support to enact new congressional and state legislative districts that last a full decade. Under a plan approved in 2015, state legislative districts will be drawn by a seven-member commission consisting of the governor, auditor, secretary of state and one person appointed by each of the majority and minority party leaders in the House and Senate. To last 10 years, the maps need support from at least two members of each party; otherwise, they are valid for just four years. For congressional districts, voters approved a measure last May that requires the Legislature to pass a redistricting plan by a three-fifths majority with the support of at least half the members of the majority and minority parties. If that fails, districts are to be drawn by the seven-member commission and approval requires support from at least two members of each party. If that fails, the Legislature may pass a plan by a three-fifths vote with the support of at least one-third of the majority and minority party members. If that fails, the Legislature may pass a plan by a majority, but it would remain in effect for only four years.

PENNSYLVANIA — State legislative districts are drawn by a five-member commission under a procedure dating back several decades. The majority and minority leaders of the House and Senate each appoint one member, and those four then select a fifth person to serve as chairman. If they cannot agree on a chairman, the Supreme Court appoints one. Districts must be compact and contiguous and respect city boundaries. Congressional districts are drawn by the Legislature.

UTAH — Congressional and state legislative districts will be drawn by a seven-member commission, under a constitutional amendment approved by voters last November. The commission will be composed of one gubernatorial appointee, two appointees by Republican legislative leaders, two appointees by Democratic legislative leaders and two political independents appointed by majority and minority party legislative leaders. The commission’s recommended maps will be submitted to the Legislature for final approval. Districts shall be compact and contiguous, preserve communities of interest and not favor or disfavor incumbents. Partisan voting records may not be considered.

VERMONT — A commission submits plans for state House and Senate districts to the state Legislature, which can approve or change them. The governor appoints one commissioner from each of the state’s political parties that have had at least three state lawmakers for six of the past 10 years. The chairs of those parties appoint one member each. The chief justice appoints the committee chair. Districts should be compact and contiguous and recognize “patterns of geography, social interaction, trade, political ties and common interests.”

WASHINGTON — Congressional and state legislative districts are drawn by a five-person commission under a constitutional amendment approved by voters in 1983. The majority and minority party leaders in both legislative chambers each appoint one commissioner, who cannot be an officeholder or lobbyist. Those four members then select a fifth, nonvoting member who serves as chairman. Legislators can amend the commission’s maps with a two-thirds vote of each chamber, but their changes can shift no more than 2 percent of the population among districts. Districts should be composed of “convenient, contiguous and compact territory” and not drawn to purposely “favor or discriminate against any political party or group.”

The trend is towards adopting independent redistricting commissions because the public demands it. I would expect this trend to continue over the next decade, especially in the western states that have citizen initiatives (plus Michigan, Ohio and Massachusetts in the east). Florida, Illinois and Mississippi have citizen initiated constitutional amendments. The more states that adopt independent redistricting commissions, the more public pressure can be brought to bear on the legislatures of other states to follow suit.