After the Supreme Court dodged a definitive ruling on partisan redistricting last week, Colorado Democratic Sen. Michael Bennet is taking the gerrymandering debate to Congress.
Bennet introduced a bill last week to outlaw partisan gerrymandering at a federal level. If passed, the bill would end the practice of partisan gerrymandering, by which majority parties in state legislatures redraw congressional districts to finagle an advantage at voting booths.
The bill, dubbed the Fair Maps Act of 2018, would bar states from redrawing congressional districts in a way that “has the purpose or will have the effect of unduly favoring or disfavoring any political party.”
If passed, the bill would make it easier for voters to challenge congressional maps they believe have an unfair partisan tilt. It gives eligible voters standing to challenge their states’ congressional maps.
“This week’s Supreme Court decisions failed to answer important questions on gerrymandering that can only be resolved if voters have standing to challenge their state’s extremely partisan maps,” Bennett said in a news release. “This bill is the first step to enable citizens to regain control of their government.”
Bennet’s office had been working on the bill for more than a year before they introduced it last week, according to a member of his staff. The senator put the legislation on hold pending the Supreme Court’s decision on a number of gerrymandering cases this year.
He decided to go public after the Supreme Court last Monday batted down challenges to two congressional maps in Maryland and Wisconsin. The high court sent both cases back down to the lower courts on procedural grounds without addressing whether partisan gerrymandering ran afoul of voters’ constitutional rights.
Chances are slim that Congress will take serious action on the bill before November. But Bennet is hoping to “send the signal” that Congress should act on gerrymandering in the next session, the staffer said.
Michael Li, senior counsel at the Brennan Center for Justice at New York University School of Law, said Bennet is starting a conversation about partisan gerrymandering in Congress at the perfect time.
“It is very important that something be done to stop extreme gerrymandering. Because if not, the next round is only going to be that much worse,” Li said.
The next redistricting cycle will be even more partisan than the last if Congress doesn’t act soon, Li said. An array of innovations in big data and redistricting software could help whichever party dominates state legislatures in 2021 sketch out huge new majorities.
Advocates of the bill say gerrymandering is a bipartisan concern. Republican-controlled North Carolina, Pennsylvania and Texas are among the most notorious states for gerrymandering, along with Democratic-dominated Maryland.
In the past, the Supreme Court has said some “severe” partisan gerrymanders can be unconstitutional. But the court is far from agreeing on whether judges have the authority to strike down maps on partisan grounds or how they would assess whether or not a map crosses the line.
The fight over redistricting has been heating up in recent years, with the next round of nationwide redistricting looming after the 2020 census. Former Attorney General Eric Holder, who has lamented the “rigged” districts drawn by Republicans in 2011, is now leading an effort to tilt the scales back towards Democrats.
Holder steers the National Democratic Redistricting Committee, which is targeting legislative chambers, governorships and ballot initiatives in 12 states and watching seven others in 2018, according to its website.
In most states, the majority party in the state legislature redraws district lines after a census. The governor of the state sometimes has veto power over any plan the legislature draws up.
Under Bennet’s bill, many states would dramatically change their redistricting process, according to Li. States that draw unfair districts would be almost certain to face a heated legal battle from the disadvantaged party.
States would also have a new incentive to establish nonpartisan or bipartisan redistricting commissions, as Arizona and California have done already. Under the bill, such states would be largely protected from gerrymandering lawsuits because of a provision giving their plans a “rebuttable presumption of validity.”
“Extreme partisan gerrymandering distorts the reciprocal relationship between citizens and their elected officials, which is the foundation of our self-governing democratic republic,” Bennet said in the news release. “Prohibiting this partisan practice is one of the most significant ways we can begin to fix our broken political system.”