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How Klobuchar’s Freedom to Vote Act proposes to end partisan gerrymandering

The bill sets out standards for determining whether a redistricting plan unfairly favors one party, and clarifies the role of federal courts in the process.

Sen. Amy Klobuchar
Democrats’ new voting rights bill, the Freedom to Vote Act, authored by Minnesota Sen. Amy Klobuchar seeks to put an end to the partisan gerrymandering of districts.
Ting Shen/Pool via REUTERS

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.

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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.

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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.