By Paul Lenchner
In arguing for the ratification of the Constitution in the Federalist Papers, James Madison wrote, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” The problem, of course, is that men (and women) are not angels, and government must be structured accordingly.
Madison did not see people as inherently evil. But he and the other framers believed that people were naturally self-interested. So government should include mechanisms to restrain self-interested officials from abusing their power. Perhaps the most famous of these mechanisms is the Constitution’s elaborate system of checks and balances.
State legislatures have the responsibility to establish districts for their elections as well as districts for elections to the U.S. House of Representatives. Redistricting customarily occurs after each decennial census, though it may also occur between censuses as happened in Texas in 2003 when a new Republican majority redrew lines to its advantage.
The Supreme Court has ruled that legislative districts must be substantially equal in population. It has also ruled that districts cannot be racially discriminatory. Partisan discrimination (partisan gerrymandering) is another story. The Court has acknowledged the prevalence of partisan gerrymandering but said it is not equipped to determine when lines that favor one party become “excessive” to the point of violating constitutional standards. Its conclusion was that remedies to this problem are the responsibility of elected officials (Rucho v. Common Cause 2019).
This brings us back to James Madison. It is unrealistic to expect self-interested politicians to behave impartially when drawing district lines. Their personal stake in the outcome is too great. The normal response when public officials have a direct personal stake in an upcoming decision is recusal. They do not take part in the process of deciding. In practical terms, this would mean removing all legislators from redistricting decisions. Twenty-one states have taken this step and use an independent commission to draw district lines.
These commissions have had varying structures and varying degrees of success. Based upon an examination of the record and his own experience as chair of the New York State Independent Redistricting Commission, David Inamura suggests three principles. First, “commissions cannot be evenly split between Democrats and Republicans.” Evenly divided commissions invite partisan gridlock. For example, the successful Michigan commission has four Democrats, four Republicans and five non-affiliated members. Second, “commissions should not be merely advisory.” Advisory recommendations can be overridden by legislatures with partisan motives as happened in several states in the 2020 cycle. Third, “commission members should not be elected officials or political appointees.” This will avoid egregious cases like one from Virginia where a “state senator publicly amended his own district lines to include his residence.” Inamura praises California for its model selection process in which “the state auditor solicits applicants from the general public, reviews and interviews potential commissioners, and then conducts a lottery to select the final members.”
Using a properly-structured independent commission increases the likelihood that districts will meet generally accepted standards. Specifically, districts should be compact, contiguous, preserve political subdivisions, and preserve natural communities. They should not intentionally favor or disfavor a party, incumbent, or candidate.
Drawing districts in an independent process has several advantages. Most important, it increases the percentage of competitive districts in the general election. Districts drawn for partisan reasons are likely to be safe in November, depriving voters of a real choice of competing platforms. In these cases, everything comes down to the primary, where substantive candidate differences are very often modest (despite ads vilifying one’s opponents), and turnout is typically low. Second, removing redistricting from the legislature’s agenda will free up time for consideration of matters like education, transportation, and economic development. This will be especially valuable for states like Texas with constitutionally-limited legislative sessions. Third, considering the extremely high levels of political cynicism today, reducing transparently partisan machinations over redistricting can only be beneficial.
The remaining question is how to get from here to there. How can more states be persuaded to adopt redistricting reform? While the path to change is arduous, the record shows that the challenges are not insurmountable. When public pressure is strong enough, even self-interested officials may yield. Campaign finance is a case in point. Incumbents have an incentive to keep the rules under which they were elected. At the national level, outrage over Watergate led to meaningful though far from perfect reform. Many states (though not Texas) now have significant contribution limits. To take one of our neighbors, for the 2019-2020 election cycle Arkansas limited contributions from individuals, PACs, and state parties to state legislative candidates to $2,900 per candidate per election. Public pressure is most direct in states with initiative or referendum. For example, a 2008 ballot initiative established California’s independent redistricting commission. Finally, and James Madison notwithstanding, public officials do not act exclusively in their self-interest. A strong tendency is not an absolute. If it was, wealthy lawmakers would never support higher taxes on their fellow class members.
Progress toward nonpartisan redistricting has come slowly and is unlikely to accelerate. The Freedom to Vote Act, which would require states to adopt independent citizen commissions for congressional redistricting, is stalled in Congress despite strong support from Democrats. Democratic control of both houses of Congress and the presidency as well as abolition of the filibuster will likely be needed for passage. Blue states have been more likely to adopt independent commissions, though there are exceptions including Alaska, Idaho, and Montana. Where citizens can take direct action, change is more likely. In Ohio, signatures are being collected to put the “Citizens Not Politicians Amendment” on the November ballot. If adopted, redistricting will be the responsibility of a citizens commission.
Texas is not fertile ground for redistricting reform. We are a red, big-money state where citizens lack the ability to put measures on the ballot. Redistricting is not the sort of issue that stirs passion in the public. Still, sometimes virtue is its own reward, and even long-shot causes should not be abandoned.
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