Fixing the Redistricting Mess
It won't be easy.
Obama administration Attorney General Eric Holder takes to the NYT to proclaim, “This Redistricting Chaos Must End.” He spends most of the essay explaining why the ongoing gerrymandering fight is dangerous and how we got here, both of which regular readers here are well acquainted. What’s more interesting is his proposed fix.
The next time Democrats take control of Congress and the White House, their top priority must be to rebuild and reimagine American democracy, creating a system that, more than ever before, reflects and is responsive to the will of the American people. That means banning partisan gerrymandering — and much more.
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In the short term, pro-democracy forces can ask state courts to toss skewed maps in states that restrict partisan gerrymandering. Meanwhile, if Republicans continue to redraw their maps for partisan advantage, Democratic states must be willing to respond by redrawing maps in the states they control, even if it means suspending for a time the independent redistricting commissions that I have fought for.
Despite the obstacles that the Roberts court and the Republican Party have put in front of them, citizens must use the power they have to vote in local, state and federal elections to begin to carve a path to ultimately achieve much-needed reforms.
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Long term, Congress needs to pass new voting rights legislation and reform the Supreme Court, so that this hyper-ideological majority cannot use a skewed reading of the Constitution to block laws that protect democracy.
When Democrats eventually take control of Congress and the White House, top of their list should be banning partisan gerrymandering and mid-decade redistricting, along with reviving protections against racial gerrymandering and guarding against other forms of voter suppression. Democratic senators should exempt such a bill from being filibustered, preventing Republicans from blocking it.
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Even this would not be enough. The Supreme Court’s destruction of the Voting Rights Act, a law that was enacted and repeatedly reauthorized in Congress with overwhelming bipartisan support and under multiple Republican presidents, shows that democracy reforms will be at legal risk as long as a radical court majority rules with obvious favoritism for one side. Senate Republicans constructed this majority by freezing out Democratic court nominees while fast-tracking Republican ones. The court needs to be reined in and reinvigorated.
Congress should impose Supreme Court term limits of 18 years, a binding code of ethics that applies to the justices and a provision that requires a new justice to be appointed in the first and third years of each presidential term. This would expand the court’s membership at first, but, over time, the court would revert to a nine-member institution. Vacancies and appointments would be less subject to partisan manipulation and drama, and public confidence in the court’s independence would grow.
This is . . . a lot. And maybe not enough.
First and foremost, it requires Democrats winning back the White House, the Senate, and the House of Representatives under conditions that give Republicans a significant thumb on the scale. The Electoral College and Senate have long given the party an advantage, and the very problem Holder is attempting to solve does so in the House.
Those hurdles cleared, you would need to have majority support in both Houses for “banning partisan gerrymandering and mid-decade redistricting, along with reviving protections against racial gerrymandering and guarding against other forms of voter suppression.” I’m not sure what “banning partisan gerrymandering” looks like in practice, but it would seem to be within Congress’ express powers. Banning mid-decade redistricting (presumably, a return to the standard practice of redistricting pursuant to the decennial census, effective with the year ending in 2) certainly would. I have no idea what “guarding against other forms of voter suppression” looks like, but it may be within Congress’ power. Certainly, the enforcement provisions of the VRA having been struck down, “reviving protections against racial gerrymandering” would not.
While I certainly defer to Holder’s legal expertise, it has long been understood that Article III’s declaration that, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour” confers lifetime appointments. Imposing 18-year term limits, which I would support, would therefore almost certainly require a Constitutional amendment.
Assuming majority support in both Houses of Congress, I believe a judicial code of ethics and the appointment of a new Justice in the first and third years of every presidential term would survive Constitutional muster. But it likely wouldn’t achieve Holder’s goal. The Democratic President would only be guaranteed a Democratic Senate for the first of those appointments. S/he would need to preserve the Senate majority in the midterms to be guaranteed confirmation of the second Justice. And that would, barring retirements, only give us a 6-5 Court with a Republican swing Justice. It would require the re-election of said Democrat and keeping the Senate for a third consecutive cycle to reach 6-6, and keeping the Senate through the midterms to reach a 7-6 Democratic majority.* (Granted, it’s unlikely the current Republicans all survive that long.)
All of this, mind you, just gets us back to the status quo ante.
*It is not at all clear how or why “over time, the court would revert to a nine-member institution.” Nor, honestly, is it obvious why we would want it to. A process with regular appointments to the Court would solve many problems created by the fixed size, which effectively invites timing judicial retirements with the partisan control of the White House.
