The chance that Democrats will pass all 817 pages of the democracy-enhancing For the People Act (H.R.1/ S.1) is close to zero. If, however, they could enact one portion of the bill that would end a practice condemned by the courts and all political parties at one time or other, they should choose the sections on redistricting reforms.
Those reforms, in Subtitle E, Sections 2400-55, would mandate independent districting commissions that would end partisan gerrymandering for the House, and serve as a model for reforming state legislative redistricting.
Most of the benefits of gerrymandering have accrued to Republicans, but in one of the last cases to reach the U.S. Supreme Court, Maryland Democrats were on the defensive for creating a favorable 7-1 split by breaking up a prior Republican stronghold. The only solution is to take that job away from elected politicians and hand the process over to non-partisan bodies with clear rules about how to do their jobs.
Prior Efforts at Ending Gerrymandering Failed
Efforts to end partisan gerrymandering through the courts have been a failure, not because the Supreme Court has approved the practice: quite the opposite.
In 2004, in a case involving the gerrymandering of the Pennsylvania congressional delegation—which produced a 12-7 margin for Republicans in a state where the voters are evenly divided—the court made it clear that the result violated the Constitution, but that it lacked a judicially manageable means to fix the problem.
The court also held that Congress could provide a remedy through its power under Article I, Section 4 to set the “time, place, and manner” of electing members of the House. In other words, ending redistricting by Congress is both necessary and constitutional.
Making Sure Commissions are Independent
The means by which these commissions will be truly independent are quite complicated, but the protections fall into two categories: First, the bill would assure that the commissions as a whole are multi-partisan, with independents and/or members of significant minor parties, excluding those who hold or ran for elected office. The multi-step selection process is designed to assure that the final result is as balanced as possible.
The bill also provides for significant back-end protections. Some of these are substantive, both describing the desired outcomes (respecting communities of interest, neighborhoods, and political subdivisions to the extent practicable) and forbidding certain factors from being considered (where an incumbent resides).
There are additional protections that will prevent the two major parties from agreeing on a map that leaves independents out in the cold: The bill requires that the final product must have the affirmative approval of at least one member who represents each of the major parties and one who represents independents or third parties.
There are also extensive transparency requirements and meaningful opportunities for public input on both the selection of commission members and redistricting plans. On top of all that, the Department of Justice must review the final plan to be sure that it complies with all of the requirements of the law.
The bill provides the basic rules for these commissions, but states still must enact them into law and then appoint their commission under the criteria of the bill. If they do not, the default option under Section 2421 is that a three-judge federal court will draw the required lines.
Moreover, because the commission process is permanent, Congress will not have to pass new laws to overcome the latest in voter suppression concocted by the states.
A Shortcoming: State Legislatures
There is one shortcoming with the bill: It does not apply to the lines drawn for state legislatures, which could still be done on a partisan basis.
Perhaps not, however: What will the politicians say when asked why the districts for the House are established by independent commissions, but those for the state legislatures are created by those who benefit the most from the way that the districts are configured?
A similar problem existed when Congress passed laws for voters to register for federal elections, but the states, while free to have their own state systems, went along so that federal registration covered state elections as well.
None of this will persuade the Senate Republicans to support these redistricting provisions, but focusing on this one part of the bill may provide an opening for those who thought the bill was much too broad and that no one had time to read and be sure that it operated as intended and within the Constitution.
As the redistricting sections run only 91 pages and deal with a subject on which every member of the Senate has considerable familiarity, that problem should vanish.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Alan B. Morrison is the Lerner Family Associate Dean at George Washington University Law School where he teaches constitutional law.
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