As it went into the 2020 election cycle, North Carolina adopted a new congressional districting map that led to Republicans winning eight of the state’s 13 districts. That’s despite Democratic candidates getting well over half of the total votes in the state, according to Facing South, the online magazine of the Institute for Southern Studies.
For many lawmakers, the culprit that leads to scenarios like this is partisan gerrymandering of districts. Aided by sophisticated software, partisans can engineer voting districts in their states to virtually guarantee control by one party, irrespective of how the majority of voters decide.
Democrats’ new voting rights bill, the Freedom to Vote Act, authored by Minnesota Sen. Amy Klobuchar seeks to put an end to this practice. Current law on redistricting bans things like diluting the votes of certain minority groups; the change proposed by Democrats in this bill would ban the creation of districts to favor a certain party.
“Instead of changing their policies, or their candidates or their ideas, they choose to change their voters,” Klobuchar said.
How the Freedom to Vote Act proposes to end partisan gerrymandering
Putting an end to partisan gerrymandering is not a simple task, and lawmakers have introduced bills to do this before to no avail. But the Freedom to Vote Act outlines a list of specific changes to states’ criteria for congressional redistricting, and Klobuchar thinks this time it has a chance at succeeding.
The bill states that when drawing new congressional districts, there will be “no favoring or disfavoring of political parties.” Specifically, districts can be suspect of partisan gerrymandering if they were drawn either “with the intent” or if the drawing “has the effect” of favoring or disfavoring any political party. “Intent or effect” means that a redistricting plan could be considered illegal if it can be proved that it was created with the intent to sway a district in favor of one party, but it could also be invalidated if it has the effect of swaying a district politically even if that was not the original intent.
According to the bill, intent or effect will be determined using computer modeling. Software will be used to perform an analysis of whether the redistricting plan is likely to “result in partisan advantage or disadvantage on a statewide basis.” The analysis will also compare the modeled electoral outcomes of the current plan with modeled outcomes of alternative plans. If any party thinks that a state has created a redistricting plan that could lead to partisan gerrymandering, the party can bring a civil action against the state.
Jeff Wice, a professor at New York Law School who specializes in redistricting, voting rights and census law, said that Klobuchar’s bill also addresses the limit on partisan gerrymandering cases being heard by federal courts. In 2019, the Supreme Court decided that partisan gerrymandering was not an issue federal courts were prepared to hear. The Court said that the question of partisan gerrymandering was a political one that could only be resolved by the elected branches of government, and not a legal one that federal courts should decide. So state courts, Congress and state legislatures became the only option for regulating partisan gerrymandering. The problem with that decision is that each state’s constitution is different, and thus many states will have different outcomes on gerrymandering cases.
“[The Freedom to Vote Act] would actually establish guidelines and criteria for federal courts, which is one of the things that the Supreme Court found was lacking — that it didn’t really have any judicially manageable standards, and Sen. Klobuchar creates those standards for the courts to follow,” Wice said.
A redistricting plan could be challenged at any point in time during the decade it represents. Districts could be retroactively inspected for intent or effects of partisan gerrymandering, even if they were created before this bill’s policies go into effect.
Wice says that the Freedom to Vote Act is the best chance Congress has to end partisan gerrymandering. But the bill still faces an uphill battle in the Senate, where lawmakers have struggled to pass big pieces of legislation all year.
An acceptable compromise?
Klobuchar introduced the Freedom to Vote Act as a compromise with lawmakers like Sen. Joe Manchin who did not support the sweeping reforms proposed in her original bill, the For the People Act. Klobuchar hopes that this new bill will gain enough ground with skeptics to actually make it past the Senate.
“So what we did is we took the original For the People Act, we already added some changes to it, to allow for easier situations in rural areas and the like, and then we came together on this compromise with the Freedom to Vote Act,” Klobuchar said. “We are working with the Republicans, seeing what they can agree to. That’s part of Senator Manchin’s pledge, that he wants time to do that.”
Manchin came out against Klobuchar’s For the People Act, but instead of stopping at “no,” he released a list of changes to voting laws that he did support.
Klobuchar believes that the bill will be coming to a vote about whether or not to debate the bill sometime this week or next. Number three on the list was banning partisan gerrymandering.
But in a 50-50 Senate that has struggled to pass major legislation this year, the bill’s future is unclear. If it passes, though, redistricting experts like Wice say that it could be a major step in preventing unfair gerrymandering from influencing future elections.
“I think this is the last best chance to stem the excesses of greedy partisan gerrymandering that we saw 10 years ago, and don’t want to get worse,” Wice said.
Determining intent or otherwise ruling on redistricting’s effect any any particular party is going to be really problematic. A much better approach would have been to create a mathematical test on making voting boundaries line up with existing political, mail service, and/or geographic boundaries, and ensuring that each voting district is compact. One approach would be to have a rule that limits the length of the allowed perimeter boundary based on the area of the voting district.
I completely agree. A system written specifically to fairly and squarely draw up districts non-politically and overseen by non-political types (w severe consequences for any tampering) must be the new way forward, to protect the integrity of our election processes and our cherished democracy.
Gerrymandering &/or voter suppression tactics by invested political types sb illegal. They occur because those doing them offer no policies or programs to meet the needs of their constituents…but only a means to an end for unsavory, ethically challenged individuals whose sole goal is power, money & authority over us all. And that is NOT democracy.
Excellent ideas. I would also add that no consideration should be given to the place of residence of any incumbent, and that (as the Supreme Court requires) the population of every district should be as close to equal as possible.
As I understand from the article, you have to show intent OR effect. Winning 8 of 13 districts when you receive under 50% of the votes would certainly support “effect”.
Ironically, without Gerrymandering there would be no Congressional Black Caucus as districts were “created” in most Southern states that ensured Black representation. While some would call that practice “racist,” most democrats used to think that was a great idea.
Racial gerrymandering is prohibited under the Supreme Court case Shaw v. Reno, which was decided on 14th Amendment grounds. Not sure where you get the idea that we have districts explicitly created to elect Black representatives.
Also have no idea how the SC could ignore Shaw v. Reno when it threw up its hands in Rucho v. Common Cause, but that’s another matter (possibly having to do with partisan hackery).
They didn’t explicitly say those would be Black districts. They simply drew the maps to guarantee that a Black person would be elected. Or do you really believe that those Black representatives were elected by the majorities of white people living in those Southern states back in the 60s?
Which Black representatives from deep south states in the 60s are you talking about? There were more in the 1860s than the 1960s.
https://history.house.gov/Exhibitions-and-Publications/BAIC/Historical-Data/Black-American-Representatives-and-Senators-by-Congress/
Mr Tester, let us assume you are correct: that after decade upon decade of racial gerrymandering by Southern whites to ensure that no black House rep was ever elected from some state of the Old Confederacy, the DOJ sued under, say, the Voting Rights Act, and some federal court ordered the creation of a gerrymandered district that was likely to produce a Black rep.
Are you saying that you approve of white racial gerrymandering? Surely not. So what does your example have to do with the propriety of partisan gerrymandering and whether it should be countered? That libs are being hypocrites (yawn) because they approve of some gerrymanders, but not others? Is it possible that some gerrymanders advance democratic ends while others don’t? If anything, your hypothetical factoid demonstrates that courts were thought competent to adjudicate and correct racial gerrymanders, so why on earth would Roberts’ Repubs conclude that federal courts were incompetent to recognize the existence partisan-based ones? (Other than rightwing partisan hackery, as Mr Granse surmises…)
Gerrymandering that benefits either of the major parties is bad. Full stop.
When it is a major aspect of a minority party’s attempt to be a permanent governing minority, it’s obscene. That is what Senator Klobuchar is trying to get rid of.
And, one has to admire the Senator’s willingness to try to work with Joe Manchin, who keeps saying he insists on bipartisanship in any and every measure before the Senate, but who can’t bring that bacon home himself even when Schumer gives him an open door and time to try it. Manchin, of course, is one of two non-Republicans who can win the prize for someone attempting to rule while in a minority of one, or two (with Sinema). He risks going down in history as the Democartic Senator who destroyed Democrat Joe Biden’s presidency.
Can Amy’s bill be filibustered ? If so, why waster your time with it ? Spend that time getting rid of the filibuster.
Call me delusional, but the Ds in total will not blow up their and Biden’s future electoral chances. A 2 trillion plus a little reconciliation package, the bipartisan infrastructure package and a Joe Manchin autograph model voting rights bill that he will endorse with enough filibuster manipulation to enact.
All by year’s end, leaving a steadily improving economy, a rapidly declining pandemic and a bunch of promises made and kept. An increase in House Ds and a net gain of 2 in the Senate in 2022. Serious filibuster reform in 23. Biden for 4 more in 2024…
I may be delusional, our right wing friends will be frothing at the mouth mad and have no recourse other than Insurrection 2.0. And good luck with that: Ongoing demographic changes will only make it worse for them. Ted Cruz and Josh Hawley are the Ivory Billed woodpeckers of Republican politics.
The first three comments seem to think that there is a simple formula that would solve the gerrymandering problem. There is no such thing. That is why shortly into this article it states that “[P]utting an end to partisan gerrymandering is not a simple task, and lawmakers have introduced bills to do this before to no avail.” Amy’s approach is not to try to construct an approach that will end with an acceptable map of districts (again an impossible task) but to look at the districts drawn and to determine if the map has the intent or the effect of favoring or disfavoring any political party (a possible task).
Jeff Wice, a professor at New York Law School who specializes in redistricting, voting rights and census law, said that Klobuchar’s bill the Freedom to Vote Act is the best chance Congress has to end partisan gerrymandering. Additionally, it would actually establish guidelines and criteria for federal courts, “which is one of the things that the Supreme Court found in was lacking — that it didn’t really have any judicially manageable standards, and Sen. Klobuchar creates those standards for the courts to follow,” Wice said.
Redistricting is political at its core, and neither party is keen on giving up control. Here in MN, we have had a number of bills proposed to create an independent redistricting committee (for example: HF 1605/SF 2575). They never reach the floor for a vote because Democrats kill them in the house subcommittee and Republicans kill them in the senate.
Nationally, when Democrats benefitted from gerrymandering in the 90s, they were against legislation curtailing it. Today, Republicans benefit, and are generally against legislation curtailing it. It is political, which is why mainly Democrats push for national reform.
Because Democrats self-pack in cities, blindly drawn redistricting plans benefit Republicans. Requirements such as compactness, maintaining communities of interest, and VRA requirements further skew plans in Republicans’ favor. Partisan data must be used to draw districts.
The US Supreme Court has held that electoral districts must be roughly equal in population. Saying districts must be compact, and follow existing municipal or county boundaries, does not overrule the equality of size requirement.
Correct, RB. My comment said nothing of the sort.
So how does having Democrats concentrated in the cities favor Republicans? The higher population would give the cities more representation, proportionate to that higher population. Rural and exurban districts where Republicans tend to cluster would get less.
My apologies for the delay, I did not see your response.
Districts are equal population. City districts cluster more than rural districts. A district in the city will be 90% D while a rural city will be only 70% R. The effect favors Rs.
For example, divide a group of 150 Ds and 150 Rs into three rooms. Packing room 1 with 100-Ds, 0-Rs, leaves Rooms 2 and 3 with 25Ds and 75 Rs. Voting by rooms, Rs have a 2-1 advantage. This is the effect of self-packing.
Sounds like this bill would make some critical steps to ensuring that the (self-proclaimed) “democracy” of the United States would actually become a modern democracy. As currently structured according to the extreme limitations and flaws of our sclerotic 18th Century constitution, we live in a country that doesn’t run according to majority rule, but instead according to political minority rule. In this case, the political minority call themselves “conservatives”, and of course their retention of power over the country matters far more than having an actual functioning democracy in the 21st Century.
It is for this reason why the hapless Manchin’s plaintive appeals for “bipartisanship” are simply ridiculous. Extreme gerrymandering tactics are how the Repub party have created and maintained iron control over an enormous number of (supposedly) Red States such as TX, FL, GA, AZ and NC, as well as ostensibly Blue states like WI, MI, and PA. Indeed, this is how the Repubs plan on taking control of the House in 2022 and beyond.
The democratically-illegitimate “conservative” members of the Trump Court are perfectly well aware that this tactic is essential to “conservative” control of the country despite being a minority party. That is why they issued this deeply cynical and intellectually dishonest 5-4 ruling that the federal courts had no “ability” to recognize and address partisan gerrymandering. If that is actually a correct interpretation of the Constitution, then that is simply another massive failing of this 18th Century document for the 21st Century. But it should be noted that virtually every court to have addressed the matter (before the Trump hacks did) concluded that the courts were perfectly able to spot and correct abusive partisan gerrymandering, so the problem is more with the “conservative” Trump majority than the Constitution.
In any event, the point is that partisan (i.e. Repub) gerrymandering is simply critical to the plans, strategy and future of the “conservative” movement and its wholly-owned Repub party, and that is why no senate Repub will ever, ever, vote for a bill that seeks to counter the practice or change the current status quo; a status quo which allows the Repub party the ability to game districts and retain power, despite being a minority party and political faction. So absent filibuster reform this is a total waste of Klobuchar’s time and effort. And if she doesn’t start directly pointing out that “partisan gerrymandering” is overwhelmingly a Repub tactic, then her efforts won’t even educate the rubes as to what is going on.
SCOTUS has historically stayed out of political arguments. It won’t rule unless there is legislation. How is that intellectually dishonest? Or is that description and the rest of your comments just because things currently seem to benefit the other side to you at this moment in time?
What Sen Amy is proposing sounds good at the surface. But what are in the details? As with any legislation, what are the consequences. No one is absolute in being neutral. And however any machine or system is used, you have to question to parameters in the programming. As with many threads on this forum, you see knee jerk conclusions only based upon if ‘my side’ is benefitting. An example is the filibuster noted above. People hated what Trump and McConnell did for the SCOTUS nominees. But it was Daschle that started the trend much to the many protestations for him not to do it because it would come back later. It sure did!
You have to be careful in what you wish for because something might sound good now, but could be awful in the future.
Hi Bob. All I can say is that whether or not a state’s legislative districts have been drawn to unfairly favor one political party should not really be considered a “political question” insoluble by the courts, despite this 5-4 ruling by the Trump Court’s “conservatives”. Political scientists have a variety of ways to demonstrate the existence of partisan gerrymanders using objective metrics.
And the special problem with labeling partisan gerrymandering a “political question” over which the courts have no jurisdiction is that the problem cannot be corrected by the people through elections, since the entire point of the gerrymander is to render the current reps unbeatable at the polls, and hence insulated from accountability. We can see this is in the extreme actions GA Repubs took to reduce turnout after Trump lost GA. (The same goes for TX and FL.) Those Repubs do not have to fear the voters, since their extreme gerrymanders protect them. The election mechanism can no longer function as a result of the gerrymander; hence the intellectual dishonesty of acting as though elections can somehow solve the (intentionally manufactured) problem.
As for what you think Daschle did with filibusters, I have no idea. Most likely you mean Reid, who was forced by McConnell’s uniform and implacable filibustering of Obama nominees (for every office!) to abolish the filibuster for lower courts and executive offices (but not the Supreme Court). McConnell then abolished the filibuster for Supreme Court nominees in order to force through “conservative” extremist Gorsuch, a move Reid had not done. So it was Repubs that undertook the current Supreme Court power grab, not Dems.
This SC only views the subject of gerrymandering in this context as political because it’s a convenient pretext for allowing partisan control of the process (see previous comment about the difference between Shaw v. Reno, and Rucho v. Common Cause).
14th Amendment equal protection guarantees are _not_ political; they’re Constitutional.
My guess would be that klobuchar put “intent” and “effect” in there so she can “compromise” away the “effect” clause. This would leave us with a new law, but the most difficult one to enforce. Lawmakers typically make “intent” a feature of laws they don’t really want enforced because “intent” is soooo difficult to prove.