Bipartisan Commissions Cause Redistricting Pain for Democrats

State redistricting commissions, largely pushed by Democrats as a brake on political gerrymandering, now are preventing the party from capitalizing on the past decade’s population boom among city dwellers and minorities, who traditionally vote Democratic.

In many Republican-dominated states without such panels, GOP lawmakers are freely drawing maps that would give their party more congressional and state legislative seats. Democrats in some purple or left-leaning states, meanwhile, find themselves hampered by commissions that are giving Republicans political parity that belies the growth in Democratic-leaning populations.

Every 10 years, state legislatures are charged with using census data to redraw both congressional and state legislative districts. It’s routinely an exercise in power wielding, as whichever party controls the statehouse historically has used its might to outline districts in its favor. But in the past few years, some states—most, but not all, controlled by Democrats—have formed bipartisan commissions, with the stated goal of drawing fairer districts that better reflect a state’s political makeup.

There are now 10 states where commissions have primary responsibility for drawing congressional maps, and eight others with advisory or backup commissions, according to the National Conference of State Legislatures. The 10 states are Arizona, California, Colorado, Hawaii, Idaho, Michigan, Montana, New Jersey, Virginia and Washington.

Six of those states (California, Colorado, Hawaii, New Jersey, Virginia and Washington) have majority-Democratic legislatures and Democratic governors.

Meanwhile, Republicans are firmly in control of 20 states where lawmakers are responsible for drawing the lines—and they have not hesitated to wield that power.

In Texas, for example, Republican Gov. Greg Abbott last week signed off on maps Republican legislators drew to blunt population growth among Democratic-leaning minorities. The final maps concentrate or “pack” Democrats in the Austin, Houston and Dallas areas into districts designed to protect nearby Republican districts.

Like Texas, Colorado and Virginia are increasingly diverse and urban. But Democrats in those states can’t blame the GOP for drawing new maps that don’t fully reflect Democratic growth.

The redistricting commissions in Colorado and Virginia will prevent Democratic lawmakers from using their legislative majorities to draw politically favorable lines. That’s by design: the panels exist to prevent gerrymandering by either party. But Democrats say the commissions are drawing maps that don’t accurately reflect the shifting politics of their states.

In both Colorado and Virginia, Democrats may lose congressional seats despite their growing political strength, said J. Miles Coleman, a political cartographer at the University of Virginia’s Center for Politics.

“In Virginia, a state [President Joe] Biden won by 10 points, you have a situation where you could have a majority GOP delegation [in Congress]. That will be very frustrating to Democrats,” Coleman said. “Democrats’ frustration with independent commissions is a theme I see emerging.”

In Colorado, which gained a new congressional seat thanks to population growth, the state Supreme Court approved its redistricting commission’s plan this week. The new seat is only slightly favorable to Democrats, Coleman said.

“It’s a toss-up and if the Democrats were drawing the lines, I’m sure they would have added a firmly Democratic seat,” Coleman said.

Democrats also face a precarious congressional election next year in Arizona, where Republicans still control state government, but which Biden won in 2020. Early drafts from a bipartisan commission made a previously safe Democratic seat more competitive, sparking complaints from Democrats, who accused the independent tiebreaker there of Republican sympathies because she made campaign contributions to Republican Gov. Doug Ducey.

“The parties are always going to have a big role and rightly so; they have big stakes in this,” said Colleen Coyle Mathis, who acted as the tiebreaker on Arizona’s redistricting commission 10 years ago as a registered independent. She suggested reserving more seats on the commission for independents so there wouldn’t be so much pressure on a single tiebreaker like herself.

“You’re trying to reconcile two parties that are very polarized right now, but independents are a third of the electorate and they should have a third of the representation,” said Mathis.

To be sure, Republicans have similar frustrations in GOP-controlled Montana, where they worry that a commission will draw a new congressional district that favors Democrats. The commission is evenly split along party lines, but there’s a court-appointed tiebreaker, law professor and tribal law expert Maylinn Smith, who has donated to Democratic candidates. Smith has said she won’t be biased and wants maps amenable to both parties.

And some Democratic states with commissions are drawing maps that skew Democratic: The latest proposal in California would give Democrats 76% of the state’s congressional seats with just 59% of the statewide votes, according to PlanScore, a website maintained by the Campaign Legal Center.

That’s an even wider gap than in Illinois, where lawmakers draw the lines. In that state, dominated by Democrats, a recent legislative proposal would give Democrats an estimated 68% share of congressional seats with just 55% of votes statewide.

Virginia Republicans pushed through that state’s commission plan in 2019, when they still controlled the legislature. Voters approved it in 2020. But the commission has eight members from each party, and thus far, party-line votes have doomed any compromise. That could throw the final decision to the courts.

“The commission, because of the way it was constructed, was doomed from the start,” said Jayce Genco, communications director for the state Democratic party. “Virginians were told that by voting for the commission it would put an end to gerrymandering, when in reality it did the exact opposite.”

But Adam Kincaid, director of the National Republican Redistricting Trust, which coordinates the party’s redistricting strategy across states, noted that mapmakers from both parties will have to work together to recommend maps to a state judge.

“Nobody can tell you with any certainty how the Virginia redistricting process will play out,” he said.

Some observers think Democrats should scrap their scruples over gerrymandering and engage in it wherever they can, if only to maximize congressional support for Democratic-sponsored laws that could limit gerrymandering in the future. The proposed Freedom to Vote Act, a congressional bill popular with Democrats but blocked by Republicans, would prohibit partisan gerrymandering that gives either party too many or too few seats in relation to its statewide vote percentage.

“You’ve got to play the game. Democrats need to gerrymander like crazy so they can get the votes to end gerrymandering,” said Frank Myers, a political science professor at Stony Brook University in New York.

But both Democrats and Republicans are attracted to commissions that can give them more parity if they’re losing their grip on political power, said Cal Jillson, a political science professor at Southern Methodist University in Dallas.

“Usually, people want redistricting commissions if they are not in power, but the Democrats have a sort of weakness for fair play, as if this were going to be reciprocated,” Jillson said.

Like other experts, Jillson criticized the U.S. Supreme Court’s 2019 decision in Rucho vs. Common Cause, which found that partisan gerrymandering is a state political issue beyond the reach of federal courts. The case challenged a Republican-drawn map in North Carolina and a Democratic map in Maryland.

“In the case of elections, the federal courts act as referee, and they have declared there are no rules of which they are aware,” Jillson said. “So, when a commission is overwhelmed by partisanship, you can bet that civil behavior will not be rewarded.”

Democrats are boxed in not only by commissions but also by voter suppression and state attempts to wrest control of election results, said Norman Ornstein, an emeritus scholar at the conservative American Enterprise Institute and co-author of the 2016 book, “It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism.”

The Freedom to Vote Act, Ornstein said, would “keep elections from being stolen or having lots of votes suppressed and that would be more significant at this point than the imbalance from gerrymandering. … The problem for Democrats at this point is less the commissions that exist than the fact that Republicans control more states and thus the redistricting process.”

Common Cause, a national fair elections group that was the original plaintiff in the Rucho case, still believes in the power of commissions to overcome gerrymandering, said Suzanne Almeida, the group’s redistricting and representation counsel. Democrats should not gerrymander just to get even with Republicans, she said.

“This is not an ‘end justifies the means’ thing,” Almeida said. “In states where there are commissions, we are seeing the process happen in a very public way as opposed to behind closed doors. It’s not pretty but the public has a right to see and understand that ugliness.”