Posted: February 7, 2012
A Poster Child for Dysfunctional Districting
Fifty years ago next month, the U.S. Supreme Court decided Baker v. Carr (1962), inaugurating the “reapportionment revolution” which led to the redrawing of legislative districts across the country. This milestone provides the opportunity to reflect not only on what has been accomplished, but also on what still needs to be done.
The most recent round of redistricting reveals severe and persistent problems in the way district lines are drawn. Ohio presents an especially extreme example of partisan gerrymandering. But this time, it’s unlikely that the Supreme Court will ride in on its white horse to save the day. Change is much more likely to come from the people themselves, acting through the initiative process. Come November, Ohio voters may get the chance to reform the process, ensuring fair representation in the next election cycle.
To understand what’s happening now, it’s important to understand what happened a half-century ago. At that time, many states hadn’t redrawn their legislative districts for several decades. Baker itself concerned the State of Tennessee, where district lines hadn’t been redrawn in over 60 years, despite major shifts in the state’s population. The result was the malapportionment of districts – with some many times the size of others – producing wide disparities in voting strength.
The State of Alabama was another poster child for malapportionment. In that state too, there had been no redrawing of state legislative lines since the 1900 census. This led to population disparities as large as 41 to 1 in the state senate and 16 to 1 in the state house. In general, the malapportionment of legislative districts tended to favor smaller rural counties that had lost population, and to disfavor larger urban counties that had gained population.
Two years after Baker, the Supreme Court declared the malapportionment of legislative districts unconstitutional. Reynolds v. Sims (1964) held that the Equal Protection Clause requires state legislative districts to comply with the “one person, one vote” rule. According to the Court, the underlying principle was “fair and effective representation.” The end result was to require that every state redraw its legislative districts every decade, after the census.
If we fast-forward through the next five decades, we see that much has changed – but not all for the better. The malapportioned districts of the 1960s are a thing of the past. But we’re still a long way from “fair and effective representation.” The decennial redistricting process creates an opportunity for mischief. In the majority of states where redistricting is done by the state legislature, districts are generally drawn to benefit those in power. And even where responsibility for drawing districts is placed in the hands of some other body, districts are often drawn to advantage incumbents or the party in power.
Ohio is a case in point. Both chambers of the state legislature, which has responsibility for drawing congressional district lines, are controlled by Republicans. While the legislature held sham public hearings, these were nothing more than a charade. Unbeknownst to the public, the real work was being done in a secret hotel room, which insiders called “the bunker.” Maps were hidden until the last minute, then sprung on the public and voted on the next day with no meaningful opportunity for analysis or public input.
Although Ohio is a classic purple state, split about evenly between Democratic and Republican leaning voters, the legislature originally enacted a plan in which 12 of the 16 districts would be controlled by Republicans.* Faced with a possible referendum to overturn this plan, the legislature passed another plan – in which Republicans are still likely to win 12 of 16 seats. None of the districts in this plan are very competitive and just three are marginally competitive. Even in a strong Democratic year, Republicans are practically certain to keep at least 9 of the state’s 16 congressional seats.
Ohio’sstate legislative districting plans are almost as bad. Under the state constitution, authority to draw district lines rested with the State Reapportionment Board – which consisted of four Republicans and one Democrat in 2011. This partisan board drew a plan through the same secretive process – holding hearings for show, while the real work was being done behind closed doors. In the end, 61 of the 99 state house districts and 21 of the 33 state senate districts are likely to be controlled by Republicans. Even in a strong Democratic year, Republicans are almost certain to maintain a majority in both houses of the state legislature.
While Ohio’s process and plans may seem especially egregious, the story is sadly typical. The party in power sought to maximize the number of seats it controlled, while also building a firewall so that the other major party will be kept out of power. Similar stories could be told around the country – and both Democrats and Republicans tend to act in a similarly self-interested way when they hold the redistricting pen.
This series of events presents an overwhelming case for redistricting reform. Here in Ohio, there is an effort to put on the November 2012 ballot an initiative constitutional amendment that would change the process for drawing district lines. The plan has been draft by a coalition of citizens, of which I am a part. The proposed Ohio initiative would create an independent citizens redistricting commission, which would redraw congressional and state legislative maps in 2013, and then again after each census. Modeled partly on California’s redistricting commission, our proposal would require that the commission consider representational fairness, political balance within districts, adherence to county and municipal boundaries, and compactness in drawing lines. Lobbyists and other political insiders would be prohibited from serving on the commission. The initiative would expressly prohibit the drawing of districts to favor any incumbent or other candidate.
Like Tennessee and Alabama a half-century ago, Ohio is a poster child for dysfunctional districting today. Whether the effort to change this system will succeed, here and elsewhere, of course remains to be seen. But for those interested in fair and effective representation, extreme partisan gerrymanders presents a golden opportunity for public education and reform.
* The data and the analysis of the Ohio redistricting plans come from the Ohio Campaign for Accountable Redistricting, to which the author serves as an advisor.
Dan Tokaji is an authority on election law and voting rights. He specializes in election reform, including such topics as voting technology, voter ID, provisional voting, and other subjects addressed by the Help America Vote Act of 2002. He also studies issues of fair representation, including redistricting and the Voting Rights Act of 1965. View Complete Profile