Forging a way toward more equitable elections after Supreme Court’s gerrymandering decision

In June, a divided U.S. Supreme Court sent a message to voters who are upset at how gerrymandered election maps distort elections and damage their sense of being fairly represented:

Sorry, not our problem. Please contact your state government.

Writing for the 5-4 majority in Rucho v. Common Cause, a case that looked at notorious gerrymanders from Maryland (perpetrated by Democrats) and North Carolina (perpetrated by Republicans), Chief Justice John Roberts said:

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”

Roberts did concede that “excessive partisan gerrymandering” does occur and is problematic. He just insisted that it’s up to states or the U.S. Congress to find remedies, not the federal courts.

If you’re hoping today’s Congress will act to limit this wellspring of partisanship, good luck with that.

But, as Roberts’ opinion notes, bold action has been happening at the state level over the last two years. Here’s the problem, though: Slightly less than half of the states equip voters with the means to take up the chief justice’s advice to “heal thyself.” 

In 2018, Michigan, Missouri, Colorado, Ohio and Utah approved significant, though varying, reforms of the redistricting process.

What do the five states have in common? Each makes provision for voters to end-run legislatures and enact reforms via initiative and referendum (which is what happened in each state).

Most of the 24 states that give voters some power to approve statutes and/or constitutional amendments sit west of the Mississippi.

In most states along the Eastern Seaboard, slaying the gerrymander requires you to beg the very lawmakers who created a gerrymander and benefit from it to mend their ways.

That is a very heavy lift. I know. I’ve been tugging at that barbell for the last three years in my home state of Pennsylvania.

Pennsylvanians know gerrymanders. All three of the maps — Congress, plus state Senate and House — originally done in Harrisburg in 2011 have been tossed out by courts. My state’s old Seventh Congressional District — AKA Goofy Kicks Donald Duck — has become a national emblem of crazily partisan map-making.

This has created huge grassroots interest in reform — Fair Districts PA has 21,000 followers; the Draw the Lines PA initiative I lead has inspired nearly 3,000 people to try their hand at drawing congressional maps — but no action in the state Capitol.

In November 2018, our governor, Tom Wolf, asked me to lead a commission to propose innovative reforms.

My fellow commissioners, a bipartisan group, took our charge seriously. We tried to model the kind of public outreach we felt should be part of any new process. We held nine public hearings across the state, circulated an online survey. We heard from more than 1,500 Pennsylvanians overall.

So many fervent voters voiced this lament: Why can’t we be like California? Ah, yes, the Golden State, home of the fully independent citizens redistricting commission that is the beau ideal of many reformers.

But we soon realized something: Pennsylvania is not California. Just as you can’t simply declare that you’re going to make a Napa Valley cabernet in Amish country, you just can’t import a Left Coast solution to a state with a very different populace, political history and Constitution.

We needed to come up with a Pennsylvania plan that suited our state and its political terrain — which meant we could not, unlike the California plan enacted via ballot initiative, cut out of the deal the very incumbents who would have to approve whatever changes we proposed.

To pass, our plan had to give lawmakers some skin in the game. We couldn’t do what some idealists advocate: scrub all partisanship from the process.

Instead, we chose (borrowing a phrase made famous by my hometown NBA team, the Sixers) to trust the process. Unable to banish partisan impulses utterly, we had to create a process with enough cunning guardrails to keep it within bounds. It helped — a lot — to have commission members with significant expertise in game theory.

The recommendations we issued this past Labor Day weekend are ingenious enough that I hope they’ll be of use to other non-initiative states looking to craft meaningful reform that politicians can support.

We proposed an 11-member commission. The four legislative caucus leaders each would get two appointments, but none could be current or recent officeholders or party officials. And one of their appointees could not be registered to their own party.

The commission, after a robust public input process, would review a pool of staff-generated maps, reducing the number to three through ranked-choice voting.

That set of three would be sent to the General Assembly, which would get a reasonable time period (say, a month) to approve one of them, without amendment, and send it to the governor for signature.

This hearkened back to that sage advice to parents of a first-grader: “Don’t ask: What do you want to wear to school today? Say: Here’s your blue shirt and your red shirt. Pick one.”

If the lawmakers couldn’t agree on a map by the deadline, the decision would devolve to the commission, which would pick a map by ranked-choice voting.

In this way, everyone would get a say: the public, appointees, lawmakers, governor. No more having the state Supreme Court hire a Stanford professor to draw a map that upends Pennsylvania politics. Instead, we’d get a Pennsylvania map done by Pennsylvanians, trusting a process crafted to prevent intense partisanship from driving the car once again into a ditch.

Now, we wait to see whether our legislature will enact reforms similar to those we suggested. In the meantime, I’d love to see another state grab this ball and dunk it.

David Thornburgh is president and CEO of the Committee of Seventy and served as chair of the PA Redistricting Reform Commission.