By Trevor Fornara, Editor in Chief
Photo: HM Staff — a vacant voting booth at a Broome County polling location during the first set of New York primary elections

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The US Constitution requires all states to redraw their congressional and legislative district lines every ten years following the census (U.S. Const. art. I, § 2). Redistricting was originally the responsibility of state legislatures; however, a recent trend has seen states delegating this responsibility to a commission of citizens in an attempt to reduce the harmful effects of partisan gerrymandering (“Independent”). These commissions are meant to be independent, taking politics out of the redistricting process. The general assumption is that citizens are more likely to create fair district maps than the career politicians in the state legislature. However, the politics surrounding redistricting can be intense and muddled in court procedure unfamiliar to most citizens. Four states that have made the switch to commissions are New York, California, Michigan, and Colorado, all of which have uniquely structured commissions (“Redistricting Commissions”). By analyzing the political effectiveness of these commissions and identifying their positive characteristics we can speculate on what might be their optimal design. The political effectiveness of these commissions will be determined by looking at each commission’s ability to successfully implement district maps. A commission would be deemed politically ineffective if it were unable to both approve and implement a set of new district maps within its original time frame due to internal gridlock, excessive legal challenges, or some other political challenge.

New York

On election day 2014, the ballots in New York included a referendum about a proposed amendment to the state constitution that would create the Independent Redistricting Commission (IRC) (Roberts 2014). The commission of 10 citizens would be tasked with drawing the new congressional and legislative lines instead of the state legislature. Proposal 1 was the outcome of a political compromise from 2011 between rookie Democratic governor Andrew Cuomo and Republicans, who controlled the state Senate. Governor Cuomo would support the Republican-drawn Senate lines following the 2010 census, and the Republicans would support his commission. 

The plan for the IRC was not well received. New York Supreme Court Justice Patrick McGrath ordered that the Board of Elections remove the word “independent” from the proposal (Seiler 2014). Justice McGrath wrote that, “legislative semantics do not change the reality that the commission’s plan is little more than a recommendation to the Legislature, which can reject it for unstated reasons and draw its own lines” (2014). He further explained that the commission “cannot be described as ‘independent’ when eight out of the ten members are the handpicked appointees of the legislative leaders” (2014). According to the proposal, the majority and minority leaders in the Assembly and state Senate would appoint two commissioners each. These eight commissioners would then appoint two more commissioners to serve as the chair and vice-chair, neither of whom can be a registered Democrat or Republican.

Blaire Horner, executive director of NYPIRG, wrote the following statement in support of Justice McGrawth’s order:

“NYPIRG applauds the decision by New York State Supreme Court Justice McGrath striking the word ‘independent’ from the language of Proposal 1. The judge is right: The proposed redistricting Commission is as ‘independent’ as a puppet. The redistricting Commission is appointed by the Legislature, its plan must be approved by the Legislature, and if its plan is rejected, the Legislature ultimately draws its own lines… 

“New Yorkers should reject Proposal 1. It is not reform. It is merely the status quo masquerading as reform. New Yorkers deserve neutral language when they step up to vote about whether to revise our fundamental charter, the State Constitution. This language ain’t it.” (2014)

Regardless of these concerns, Proposal 1 passed with 57.7% of the votes (“New York”). 

The commission began to meet in 2021, following the release of the 2020 census data. Having been granted $4 million from the state budget, the commission hired staff, built a website, and began hosting hearings around the state where citizens could express their concerns about redistricting (Lisa). However, faced with a September 15 deadline for a proposed set of maps, the commission began to have difficulty making decisions. The 10 commissioners split 5-5 down ideological lines, causing the two sides to draw separate maps. At this point, all bipartisan spirit had been lost. On the 15th, the commission released two plans for redistricting—one drawn by the Republicans and the other by the Democrats (“Plans”). The state legislature was unhappy with this outcome, and ordered the commission to decide on one map by January 15th, 2022. Still divided, the commission again released two sets of maps—the aptly-named “Democratic commissioners’ proposal” and “Republican commissioners’ proposal” (“Plans”). Doomed to fail from the start, the Independent Redistricting Commission could not decide on one set. The legislature rejected both plans and assumed responsibility for drawing the maps. Democrats controlled the process and produced gerrymandered maps that were struck down by the NY Court of Appeals on April 21. (Fandos 2022) The new maps were drawn by a court-appointed special master, and were approved on May 20, and the primaries were moved from June to August. New York’s Independent Redistricting Commission was not an effective solution to the question of redistricting in New York following the 2020 census, as they were unable to effectively implement new maps. 

California

The California Citizens Redistricting Commission (CCRC) was created through a referendum to amend the state constitution in 2008 (“California Redistricting”). The 14-member commission of citizens must contain 5 Democrats, 5 Republicans, and 4 commissioners unaffiliated with either major party. Legislative leaders vetted applicants down to a list of 35 (“Application”). The first 8 commissioners were chosen at random from this list by the California State Auditor. These 8 commissioners then select 6 more applicants off the approved list. The process for drawing legislative lines is simplified in California in that each Senate district must consist of exactly two adjacent House districts (“Redistricting in”). Maps must be approved by at least 9 commissioners, including 3 Democrats, 3 Republicans, and 3 unaffiliated. 

The commission unanimously approved a redistricting plan on December 20, 2021, and it was approved by the Secretary of State on December 26 (“Redistricting in”). No lawsuits were filed during the 45-day window for complaints. Even with the loss of one congressional seat through reapportionment, the commission managed to draw a permissible set of maps (“The partisan breakdown”). One-third of the new congressional districts are Hispanic-majority, an increase of three districts from the previous map. These facts considered, the CCRC proved to be a politically effective solution to the question of redistricting in California. 

Michigan

The Michigan Independent Citizens Redistricting Commission (MICRC) is a 13-member, non-politician commission that is in charge of drawing the state’s congressional and legislative lines. The MICRC was created through a 2018 referendum to amend the state constitution (“Michigan” All About Redistricting). The amendment up for vote in Proposal 18-2, titled “Voters Not Politicians,” required approved redistricting plans to have the support of at least two Democratic, two Republican, and two unaffiliated commissioners. The commissioners would be chosen at random by a computer program out of a list of approved applicants. Amazingly, the commission created 26 congressional district maps before finally voting 8-5 in favor of the “Chestnut” proposal on December 28, 2021. In the same session, the commission approved the “Linden” proposal for state Senate districts and the “Hickory” proposal for the House districts.

The new maps have had several legal challenges. In early January, state lawmakers challenged the new congressional map for having no minority-Black districts in Detroit despite the possibility of two; however, the case was dismissed by the Michigan Supreme Court a month later after the plaintiffs failed to provide sufficient evidence of the commission’s discretion (Hendrickson and Boucher 2022). A federal case was filed requesting a preliminary injunction on the new maps, claiming they violated the Equal Protection Clause of the 14th Amendment (“Michigan” All About Redistricting). This request was denied on April 1st, 2022. 

On March 23rd, a group of Black voters filed another federal case claiming that the new legislative lines violated the Michigan State Constitution and Section 2 of the Voting Rights Act, which prohibits racially discriminant voting practices (“Agee v. Benson”; “Section 2”). There is a basis for this claim; the “Hickory” plan reduced the number of Black-majority House districts in Detroit from 10 to 6 (Witjes 2022). The plaintiffs will attempt to prove via an “expert report” that the commission used race as a predominant factor in determining the district lines and that the reduction of Black-majority districts in Detroit was not a result of demographic-blind drawing (Witjes 2022). This case is still pending, which has caused confusion surrounding the 2022 elections. State legislative candidates are wary of spending campaign funds for fear they are redrawn into new districts (“Michigan” FiveThirtyEight). Due to the number of legal challenges the MICRC’s maps have faced, the commission cannot be said to have been a politically effective solution to Michigan’s redistricting following the 2020 census.

Colorado

Colorado’s system is unique in that they have two separate commissions for congressional and legislative redistricting. The Colorado Independent Redistricting Commissions were created by amendments Y and Z to the state constitution in 2018 (“Colorado Independent”). Commissioners were chosen by first compiling a list of 1050 qualified applicants randomly selected from the qualified applicant pool (“Colorado”). A panel of judges then drew names in two rounds, resulting in 6 randomly selected commissioners for each commission. Legislative leaders then proposed names out of the original applicant pool. From this list, the panel randomly selected another 6 commissioners for each panel. The two twelve-person panels then worked separately to produce the new maps. 

The congressional commission approved a plan on October 1, 2021, and the legislative commission approved the House and state Senate plans on October 15. There was some opposition to the congressional maps; Hispanic voters held a plurality in none of the eight districts, despite Hispanic communities making up 25% of the state’s population (Riccardi 2021). However, after hearing oral arguments, the Colorado Supreme Court voted to approve the maps on November 15th (“Colorado”). The legislative redistricting plan was generally agreed to be a good faith effort (Vo 2021). In a joint statement, Republican leaders wrote, “while the final plans are not perfect, and are not the maps Colorado Republicans would have drawn, they are a result of a faithful application of the agreed-upon constitutional criteria for redistricting” (qtd. Vo 2021). The Colorado Latino Leadership, Advocacy and Research Organization also supported the plan, writing in a statement that “the proposed House and Senate maps reflect that effort and, although not perfect, are a satisfactory outcome of the process Colorado voters overwhelmingly established in Amendment Z” (qtd. Vo 2021). The Colorado Independent Redistricting Commissions proved themselves to be a politically effective solution to the question of Colorado redistricting in 2021. 

Conclusions

Of the four states under review, California and Colorado’s commissions proved to be politically effective, while New York and Michigan’s were politically ineffective. New York’s IRC failed due to inherent structural issues that were brought up but ignored in 2014 (McGrath 2014; Horner 2014). Political gridlock was inevitable; not only would there be an even number of commissioners, but 8 of the 10 commissioners were handpicked by legislative leaders (McGrath 2014). Allowing politicians to have such control over the selection of the commissioners defeated the goal of making redistricting an apolitical process. Even if the commission had successfully approved one set of maps, the legislature still could have rejected it for unnamed reasons and drawn their own (McGrath 2014). In practice, New York’s IRC is an advisory body, with all the power over redistricting retained by the legislature. The MICRC’s failure was a result of their inability to create a set of maps that fairly redistricted the city of Detroit in the eyes of the public (Witjes 2022). The ongoing legal challenges against the new maps indicate the commission’s political ineffectiveness in redistricting Michigan. 

On the other hand, the California Citizens Redistricting Commission was successful in approving and implementing new congressional and legislative maps. The requirement of support from 3 Democrats, 3 Republicans, and 3 unaffiliated commissioners forced the commissioners to create bipartisan plans (“Redistricting in”). This measure ensures that the committee doesn’t fall into the same trap as New York’s IRC because maps supported by only one party are completely unviable. Additionally, California’s system for selecting commissioners ensures the independent spirit of the commission by limiting the degree of influence politicians have over who serves (“Application”). The Colorado Independent Redistricting Commissions also proved to be a politically effective solution to redistricting. The congressional commission saw some pushback due to the approved plan’s lack of districts featuring a Hispanic voter plurality but no major legal challenges (Riccardi 2021). The legislative commission’s plan was generally well-received. Both commissions approved maps in October 2021, and the court gave its final approval in November. 

From these outcomes, we can speculate as to the ideal structure for redistricting commissions. New York’s IRC demonstrated the inefficiency of a commission with an even number of members. The ideal commission has an odd number of commissioners to avoid political gridlock. The litigation of the Michigan commission’s plan demonstrates the responsibility of commissions to ensure the creation of majority-minority districts when possible. Both Michigan and California have rules in place that ensure all approved plans receive bipartisan support by requiring a plan to receive support from a certain number of Democratic, Republican, and unaffiliated commissioners. Additionally, Michigan, California, and Colorado have a degree of randomness in the commissioner-selection process. The court or the legislative leaders provide a list of approved applicants, and then either all or some of the commissioners are chosen from this list at random. This system allows politicians to ensure the quality of the applicants while not allowing them to directly influence who serves. From these points, we can speculate that the ideal commission has an odd number of commissioners between 11 and 15, a rule in place requiring bipartisan support for all approved plans, commissioners selected through a semi-random process, and will create majority-minority districts when possible.

References

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