By FRANKLIN L. KURY 11/14/18
The 2018 elections across the USA demonstrated a growing public desire to end gerrymandering of Congressional redistricting with independent redistricting commissions.
Voters in Colorado and Michig approved reforming their redistricting systems with independent commissions to draw Congressional maps. Colorado did it by a 71 to 29 per cent vote, and Michigan by 61 to 39 percent.
Utah also voted on redistricting reform, but the vote is so close that the results will not be known until the official count is completed.
In its 2018 primary Ohio voters approved a similar proposal after the Ohio legislative leaders and state League of Women Voters worked out a compromise they both supported.
When these three ballot box initiatives are implemented, nine states will have Congressional redistricting in the hands of an independent commission. The six currently with such commissions are Arizona, California, Idaho, Montana, New Jersey and Washington.
Pennsylvania’s congressional elections, using a new map drawn by the state Supreme Court, showed the difference fairly drawn districting maps can make in giving the voters competitive Congressional districts.
In the 2016 Pennsylvania Congressional elections Republicans won 13 of 18 seats. Twelve of the candidates won by 60 per cent or more and three seats were uncontested. The lowest margin was 53.73 per cent.
In January 2018 the Pennsylvania Supreme Court relied on a
“free and equal elections” provision in the state constitution to
invalidate the 2011 map and drew its own.
The results are astounding. The Congressional delegation elected November 6 yielded 9 Republicans and 9 Democrats, the number of seats won by 60 per cent fell from 12 to 8, only one seat was uncontested, and the lowest winning margin fell from 53.73 per cent to 51.35. Clearly, the state Supreme Court drawn map gave the voters a competitive set of choices in Congressional elections they had not seen in a long time.
There are, however, a significant number of major states where it is hard to discern that the 2018 elections significantly improved the chances of Congressional redistricting reform. Texas, Georgia, North Carolina, Virginia, Maryland and Illinois continue under the control of strong partisan legislative leadership resistant to redistricting reform.
In reviewing the national scene several points stand out.
In states where the public has a direct voice by ballot box initiatives, obtaining redistricting reform is significantly easier than in states where only legislature can make the changes. Twenty six states have a form of ballot box initiative, twenty four do not.
Congressional redistricting is a matter for each state individually. The road to reform is still filled with obstacles, even in state like Michigan and Colorado , the voters’ opinion is clear. Reform leaders in those states must be prepared for legal and legislative obstacles to implementation, such as those that occurred in Florida and Arizona after their voters approved reform at the ballot box.
Pennsylvania is unique because the 2011 Congressional map was invalidated without reliance on the federal constitution or a referendum. The Pennsylvania Republican leadership has three times asked the U.S. Supreme Court to review the state Supreme Court’s action and the U.S. Supreme Court declined because it does not review state constitutional questions.
The Pennsylvania Supreme Court ordered map expires after the 2020 election. A new one will be needed to respond to the 2020 census. Drawing of this map will still begin in the Republican controlled legislature, but – unlike in 2011 – the governor will be a Democrat who can negotiate for a plan that is not gerrymandered.
The challenge to enact redistricting reform in time for the 2021 redistricting in states without ballot box referendum continues to be daunting. There is a narrow time slot of perhaps two years in which to do it.
Reform leaders in the hard states, like Fair Distracts PA, Common Cause in Georgia, the Texas reform coalition and the Virginia, Wisconsin and Illinois Leagues of Women Voters, are undeterred. They will move ahead with indefatigable determination.
The chances of that happening before 2021 are slim. The Wisconsin case that presented a gerrymandering measuring standard was sent back to the district court on the question of standing. There are cases in North Carolina and Texas that could go the nation’s top court. If any of these cases get to the U.S. Supreme Court they will be heard by a more conservative bench, now that Justice Kennedy has been replaced by Justice Kavanagh.
Those seeking reform cannot wait for a court action that may never take place. Relying on the courts is to rely on a firm “maybe.” The clear necessity is to seek reform through the legislatures, difficult as that may be.
The 2018 elections provide good reason to believe that Congressional redistricting reform is moving towards victory. The realities in each state also show there is considerable work to be done to get it.
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(Franklin L. Kury is the author of Gerrymandering. A Guide to Congressional Redistricting, Dark Money and the U.S. Supreme Court. He lives near Harrisburg, Pennsylvanian can be reached at firstname.lastname@example.org or www.franklinkury.com/ )