Among the topics that just don’t seem to drop out of the news cycle this year is redistricting.
It's top of mind right now — but it’s far from new.
The Constitution tasks each state with redrawing its election district maps using Census data, and it’s been done for hundreds of years. Some states have legislators draw them, others have independent commissions; there are several ways to do it.
Doug Spencer is a law professor at the University of Colorado Boulder.
“There's always been a tension between the people who are elected getting to choose which voters will vote for them, and the voters choosing the people who are going to elect them,” Spencer said.
However, things have gotten increasingly contentious throughout history.
Redistricting is required every ten years. But some states, especially recently, have chosen to redistrict mid-decade, with some tripping over themselves and breaking their own laws in the process.
The process is especially dicey when it comes to maps for the U.S. House of Representatives. Each state is allocated a certain number of seats in the House based on its population. California has the most with 52. Several states, such as South Dakota and Vermont, have only one.
“The reason it's more complicated is that we have individual states drawing maps that will have an impact on people who live outside of their state, so the map that gets drawn in South Carolina impacts people in California,” Spencer said.
A big part of the problem is something called gerrymandering.
The term was coined by the Boston Gazette in the early 19th century, named after Massachusetts governor Elbridge Gerry.
Gerrymandering is when the lines are drawn in a way that purposely benefits one group. That group could be Democrats or Republicans—it could also be an ethnic or racial group. The Supreme Court ruled that gerrymandering was unconstitutional in 1973, 1986, and 2004.
It didn’t stick.
“While the Supreme Court said that gerrymandering was a problem, they never were able to develop a standard that could tell people why one map was worse than the other, and so states began to test the boundaries and test the boundaries,” Spencer said “And in 2019 the Supreme Court said it's too challenging for us to referee these boundaries, so we're getting out of the game altogether, and that gave a green light to states to push the boundaries even further.”
The 1965 Voting Rights Act made it illegal to dilute the votes of an ethnic minority group by gerrymandering.
“As a numerical minority, Black and Hispanic and Asian voters were never going to have a majority of seats, but it turned out that the districts were drawn in a way that these non-white groups never got any seats in any body of government,” Spencer said. “Because they were basically redistricted to be a minority in every single district. And the Voting Rights Act changed that.”
However, recent Supreme Court decisions have challenged the VRA.
“They stopped short of saying the Voting Rights Act itself violated the Constitution, but what they held was the way that the Voting Rights Act has been implemented violates the Constitution, and so if you're going to remedy the political power of black and Hispanic and Asian voters going forward, they're going to have to do it in a different way, even though they didn't tell us what that way was,” Spencer said.
Spencer said he sees a scenario where every Democratic led state is solidly blue and every Republican led state is solidly red.
“In the next 5,10,15 years, I expect every state to have safe districts that benefit the power of the party that controls that state,” Spencer said. “Every state will basically look like the electoral college.”
The Supreme Court has signaled that it would referee the process if Congress gives it boundaries. However, it would require members of Congress to make decisions that could ultimately cost them their seats.
“Some members of Congress will say, “I think that fair representation is so important. I'm willing to redraw maps that might mean I'm going to be in a competitive seat and might lose my seat, but I'm willing to do that because I think it's good for this country. We haven't seen that kind of moral leadership from enough members of Congress to get that done,” Spencer said.
