RealClearPolitics recently gathered three panels of experts on election issues. The third panel focused on redistricting and featured Walter Olson, a senior fellow at the Cato Institute; Professor Richard Pildes of the New York University School of Law; Kevin St. John, an election attorney in Wisconsin; Professor Mark R. Brown of Capital University Law School; and Audrey Perry Martin, an election attorney with the Gober Group.
About every 10 years, the state redistricting process receives a flurry of news attention. This year, the redistricting process sparked extensive litigation, which resulted in some surprising results. And several landmark Supreme Court cases on redistricting over the last decade preceded this cycle. Redistricting remains as contentious as ever.
The Role of the Supreme Court
In 2019, in Rucho v. Common Cause, the Supreme Court ruled that partisan gerrymandering decisions are unconstitutional. Additionally, over the last few years, state supreme courts have struck down redistricting maps from state legislatures. Many on the Right want the Supreme Court to overrule these state courts through the “independent state legislature theory,” which holds that Article I, Section 4, Clause 1 of the Constitution delegates the power of redistricting to state legislatures. Critics see a contradiction here, in that until now the Right had not wanted the Court to weigh in on redistricting. Those that see such a contradiction chalk it up to politics.
In RealClear’s panel discussion, former Wisconsin deputy attorney general Kevin St. John argued that in the redistricting cases that the Right is pushing, real concerns exist over abiding by the Constitution’s federalist notions on designing congressional maps. The Court should look into these kinds of problems, he believes.
There appears to be no perfect solution. Some independent redistricting commissions have been politically influenced. Additionally, state supreme court justices typically get their positions through a political appointment, so their impartiality is suspect. But legally, these courts have received their authority to review redistricting through the state legislature. The Supreme Court’s decision to hear the independent state legislature theory next term will allow a consequential legal discussion on the matter.
“Laboratories of Democracy”
Justice Louis Brandeis coined the phrase “laboratories of democracy” to describe a benefit of federalism: that states could try out different policies and see what works before such policies were adopted on a federal level. When it comes to redistricting, though, the results have been wildly uneven, causing both sides to seek national input on redistricting – the Right through its push for the “independent state legislature theory” and the Left with its attempt to pass national legislation to regulate redistricting. Republicans will likely make enough gains this November to prevent any national legislation on redistricting. If no federal input occurs, then the status quo will likely persist.
The Next Decade
Between now and 2030, many states will likely continue to make changes in redistricting. Some purple states might try to empanel redistricting commissions, as Virginia and Colorado did over the last decade. A Supreme Court ruling in favor of the independent state legislature theory will almost certainly have an impact on state court rulings that follow. Finally, Democrats could win big in 2024 or 2028 and go on to implement the kind of redistricting legislation they seek.
Is There a Solution?
Many observers looking for a solution to the redistricting battle argue that politics should be taken out of it. That sounds good, but it’s not feasible. “Nonpartisan” commissions, like the one in California, have crafted maps that don’t function much differently from partisan “gerrymandering” maps. Democrats have claimed that they oppose gerrymandering, but they engage in it themselves in states like Illinois.
So if politics is inevitably involved in redistricting, what’s the best way to go about it? Since accountability to voters is paramount, elected officials should make the redistricting decisions. If voters are unhappy with the decisions these officials make, they have recourse at the ballot box.
In 2010, Republicans crafted many of their districts around suburban voters, but over the next decade, these voters decided that the GOP did not represent their interests – and in 2018, they elected Democrats to take over the House of Representatives and elected many Democratic governors as well. These Democratic governors have gone on to serve as a check against Republican legislatures’ redistricting maps.
Finally, redistricting through the state legislature can lead to compromise. Some members will buck their party’s wishes because they want to keep certain constituencies within their districts. While redistricting maps crafted by state legislatures are not perfect, they are the best option.
Todd Carney is a lawyer and frequent contributor to RealClearPolitics. He earned his juris doctorate from Harvard Law School. The views in this piece are his alone and do not reflect the views of his employer.