The idea of taking redistricting power out of the hands of legislators and giving it to commissions has gained tremendous currency in recent years. Since 2018, voters in Colorado, Michigan, Ohio, Virginia and Utah have all approved the creation of commissions. A bill passed by the U.S. House in March would have made independent commissions mandatory for all states, although it was blocked by the Senate in June.
But the new commissions have not all succeeded. In Virginia, the process broke down entirely, with the state Supreme Court taking over. An older commission in Washington state missed its deadline, similarly shifting responsibility to the state Supreme Court. New York’s commission, created via ballot measure in 2014, also appears likely to deadlock. Last month, Democratic Gov. Kathy Hochul signed a bill allowing the Legislature to draw maps if the commission can’t produce anything by a January deadline.
The Utah Legislature ignored maps produced by an advisory commission, instead passing a partisan gerrymander that splits Salt Lake County, the state’s most populous, between all four congressional districts. Ohio’s commission succeeded in drawing legislative maps but punted congressional responsibilities to the Legislature, which promptly passed a highly partisan map that could give Republicans a 13-2 edge in the state’s House delegation.
“It’s been eye-opening to see how the commission model has been challenged,” says Barry Burden, director of the Elections Research Center at the University of Wisconsin.
As Burden points out, not all commissions are created equal. Colorado’s commission has finished its work, composing a congressional map that has already been blessed by the state Supreme Court. It earned an A from the Princeton Gerrymandering Project — overall, a tough grader this cycle — for “partisan fairness.”
Other independent commissions — those that have the authority to pass, not just recommend, maps and that are citizen-led, as opposed to being stacked with legislators or other political actors — also appear to be functioning well. Commissions in Arizona, California and Michigan are all on the cusp of completing their work. “The truly independent commissions have actually done a pretty admirable job,” says Adam Podowitz-Thomas, senior legal strategist for the Princeton Electoral Innovation Lab.
Not everyone is a fan of the commission model. No politician likes to cede power and the very idea of commissions has limited support among Republican officials. “There is no such thing as a nonpartisan commission,” Robin Vos, the speaker of the Wisconsin Assembly, complained at a recent hearing.
But advocates of the commission approach continue to contend that politicians have an inherent conflict of interest when it comes to drawing district lines. They say they’ve learned more about where the pain points are from the setbacks this year and intend to keep pushing for reform.
“Using the word ‘commission’ doesn’t solve the problem,” says Rebecca Green, a law professor at William & Mary in Williamsburg, Va. “A truly independent commission solves the problem.”
Achieving Independence
Citizens seem to be more aware of the dangers of partisan gerrymandering than they were in past cycles. When given the chance, voters have supported measures meant to make the process less one-sided. “There were a lot of people that seized on it as the foundational issue that needed to be fixed if you wanted to fix democracy,” says Nancy Wang, executive director of Voters Not Politicians, which sponsored Michigan’s 2018 initiative. It passed with 61 percent of the vote.
But not all states allow ballot initiatives. Among those that do, not all allow voters to adopt constitutional amendments. Utah voters approved an advisory commission in 2018 but its authority was statutory, not constitutional. That opened the door for the Legislature to weaken the proposal, eliminating its ban on incumbent protection and the requirement that lawmakers had to give commission maps up or down votes.
As things played out, the Legislature ignored the commission’s recommendations entirely, producing and approving its own maps. “People all across Utah are very disappointed with how this has gone,” says Katie Wright, executive director of Better Boundaries, which sponsored the ballot initiative. “Unfortunately, we saw lawmakers turn their back on the (commission) concept and the maps are worse than they were 10 years ago, like so much of the country.”
Wright suggested her group might sue to block the new maps, citing the state Constitution’s guarantee of free, fair and equal elections. Thirty states have similar language in their constitutions, which provided the basis for successful legal challenges against partisan gerrymanders enacted a decade ago in Pennsylvania and North Carolina.
“We’ll see multiple free and fair election clause challenges coming,” says Ben Williams, who works on redistricting issues for the National Conference of State Legislatures. “Obviously, when you’re looking at 30 different court systems, you’re not necessarily going to see the same outcomes everywhere as in Pennsylvania and North Carolina.”
Designed to Fail
Rather than suing to overturn bad maps, it’s easier to block them in the first place. But taking politicians out of the process is never easy.
In Ohio, the commission approved by voters was ultimately stacked with politicians (and had a 5-2 GOP majority). In Virginia, the proposed redistricting amendment to the state Constitution had to be passed by two successive legislatures, which ended up meaning its commission was full of politicians also.
“The lesson out of this is that reforms that leave partisan politicians in the mix can easily be hijacked by partisan interests,” says Michael Li, senior counsel for the Brennan Center for Justice at New York University. “If you leave partisan elected officials in the mix, that’s not a guarantee of problems, but it strongly increases the likelihood that you’re going to have problems.”
In some states, redistricting commissions are little more than legislative committees operating under another name. In Connecticut, for example, the state’s “backup” commission is made up of state lawmakers. It failed this week to meet the deadline for drawing congressional maps, following the Legislature’s failure to approve maps in September.
There are lots of ways for elected officials, even if they don’t have a seat at the table, to undermine commissions. They can complain that supposedly independent commissions are secretly stacked with partisans favoring the other side. They can also starve commissions of funds.
The need for resources and experience was especially apparent this cycle, with the Census Bureau releasing data so late. Aside from technical know-how, commissions lack the kind of public relations machinery that legislators can gear up when they want to undermine the credibility of independently produced maps, says Burden, the Wisconsin professor.
“Not all the models for alternatives to the state legislatures are going to be equal,” he says. “Unfortunately, some of them are getting burned up in this cycle and may need to be reinvented.”
Wright, the Utah advocate, says that even though the commission’s work never became law, it provided an important proof of concept. It not only showed that fair maps could be drawn, offering a stark comparison to the legislative product, but did so in a way that was open and occurred in public, not in proverbial smoke-filled rooms.
“What’s nice about the independent commissions is how transparent they were,” says Moon Duchin, who directs the MGGG Redistricting Lab at Tufts University. “All the discussions were on YouTube, while legislatures do everything behind closed doors.”
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