It’s Time to Fix Gerrymandering for Good

This month the Census Bureau will deliver its apportionment counts to the president, and this information will be used to decide how many congressional districts will be apportioned to each state. Since 1929 we have had a static number of 435 districts, so it is likely that some states will gain at least one district and some will lose. It will then fall to the states to draw their new district boundaries. Ideally the districts should be drawn in such a way that they are compact and uniform to as great an extent as possible, to allow for the most equitable representation for all voters. Sadly, a number of state legislatures will in all likelihood follow their previous trend of drawing their districts to gain an advantage in Congressional representation by the party holding that state’s legislative majority. They will draw boundary lines that trace odd shapes all designed to concentrate their opposing party’s voters into as few districts as possible so that the rest would contain majorities for their party. This practice effectively disenfranchises tens of millions of Americans across the nation. This is a practice that has gone on since the country began, but in the last thirty years or so it’s increased to a ridiculous level, affecting at least 59 districts and over 13 million voters.

Until recently there have been three avenues available to address partisan gerrymandering, either at the state level, through the court system or Congressional action. But last year’s Supreme Court decision in Rucho v. Common Cause stated that the problem of gerrymandering is a nonjusticiable political issue which cannot be addressed through the courts. That leaves only the individual states or Congress to address  the problem.

There are a number of states who have taken action to address partisan gerrymandering. In 2018 the Pennsylvania Supreme Court overturned a districting map drawn by the Republican legislature and replaced it with one drawn by an independent expert. Five states have passed ballot initiatives that support independent redistricting, usually by creating a nonpartisan commission tasked with drawing district boundaries, while other states are considering some version of that. If every state were to adopt such commissions it could fix the problem entirely; but the likelihood of that happening and the time it would take for that to happen would mean that for the next decade we would still experience significant disenfranchisement of millions of voters due to gerrymandering.

There is still a role Congress can play here. They could pass a law requiring that district boundaries be drawn in such a way as to prevent partisan gerrymandering. There is a historical precedent here, as the Apportionment Act of 1911 required that individual districts within a state be “contiguous, compact and containing as nearly as practicable an equal number of inhabitants”.  The problem here is that Democrats on average seem to care more about fixing gerrymandering than Republicans probably due to the fact that most models of a non-gerrymandered Congress would likely result in a significant Democratic majority in the House of Representatives. And if the runoff elections in Georgia scheduled for next month result in even one of the Republican incumbents keeping there seat we would have a Republican majority in the Senate and a certain deadlock on any proposed fix to gerrymandering.

There is still one option left, however. Article One, Section 5 of the Constitution states “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…” meaning that the House and Senate have the enumerated power to ensure the integrity and impartiality of the elections for their respective members. The plain language meaning of this is that the House of Representatives has the ability to dictate to the states many things related to the conduct of the Congressional elections in those states. So, if the Democratic majority in the House of Representatives agreed, they would not need the consent of the Senate to require the same districting standards as were in place from 1911-1929 under the aforementioned Apportionment Act. If they were to pass a resolution in the House saying that districts should be contiguous, compact and containing an equal number of inhabitants any state that did not comply could have all of the Representatives-elect excluded from being seated and requiring them to redraw their districts and have new elections. Exclusion of Representatives-elect would require a simple majority vote for the motion to carry. There would need to be a separate majority vote for the exclusion of each prospective member.

One of the reasons this has never been done is that any such effort would be met with vigorous court challenges, likely asserting the rights of the people to choose their own representatives; in such a conflict the House would be able to assert its right to make sure those same people were not being disenfranchised by an improper gerrymander. But that possibility has now been excluded by the Supreme Court’s Rucho decision. In other words, if the House chooses to go this route, there is no one else who has the power to stop them. If they can muster the requisite political will next year’s House of Representatives can fix the problem of partisan gerrymandering all by themselves.

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