States must draw new legislative districts every ten years, meaning that whoever controls a state legislature in a redistricting year can win the ability to gerrymander that state’s districts to benefit their own party. In the last redistricting cycle, this turned into a bonanza for Republicans. Even though Democrats had strong years in 2006, 2008 and 2012, Republicans won the all important 2010 elections. They would later brag that gerrymandering “paved the way to Republicans retaining a U.S. House majority in 2012.”
In reality, this claim is a bit exaggerated. The fact that Democrats tend to cluster in cities while Republicans tend to be more spread out makes it harder to draw legislative maps that do not give a built-in advantage to the GOP. But gerrymandering certainly contributed to some truly absurd results in the 2012 congressional races — a year when Democratic House candidates received almost 1.4 million more votes than Republicans. In six key swing states, all of which President Obama carried in his reelection race, Republicans won far more seats in Congress than their vote shares could justify:
Illinois, by contrast, was one of a few states where the shoe was on the other foot. Democratic House candidates won just over 55 percent of the popular vote in 2012, but they captured 12 of Illinois’ 18 U.S. House seats. A similar story played out at the state legislative level, where Democrats control 40 of 59 state senate seats and 71 of 118 state house seats.
As ThinkProgress previously explained, partisan gerrymandering violates the First Amendment, which prohibits discrimination on the basis of viewpoint. If Illinois draws its maps to maximize Democratic influence and minimize Republican influence, then that is unconstitutional viewpoint discrimination, since those maps try to make the votes of people who hold one view count more than the votes of people who hold a different view. Nevertheless, partisan gerrymanders still exist because the five conservatives on the Supreme Court have refused to allow challenges to their constitutionality to move forward.
With no help likely to be forthcoming from the judiciary, a group called “Yes for Independent Maps” submitted over half a million signatures to the Illinois Board of Elections, seeking to transfer the power to draw legislative districts to an independent commission. Under their proposal, Illinois would use a complex process involving an applicant screening process and a lottery to select an eleven member commission to draw maps.
The full process is difficult to summarize briefly but it works out more or less like this: Any Illinois citizen can apply to join the commission. An “Applicant Review Panel” would then screen “applicants who have conflicts of interest, such as lobbyists and public officials,” and select the “100 most qualified applicants on the basis of analytical skills, impartiality, fairness, and diversity.” The state’s top four legislative leaders would each be allowed to remove up to five applicants from this pool of 100, and they would also each get to appoint one commission member from the remaining pool. The remaining seven commission members would be selected by lottery “to create a group of two Democrats, two Republicans, and three unaffiliated with either party, all proportionally representing Illinois’ five judicial districts.”
To approve a map, a supermajority of seven commission members must approve it, “including at least two Democrats, two Republicans, and two unaffiliated members.” If the commission cannot agree, “the Chief Justice of the Illinois Supreme Court and a senior Justice from the other major party would select a Special Commissioner for Redistricting to draw a final map.”
There is an obvious pitfall in this system — the fact that some members will be selected by lottery means that random selection could yield a commission that is biased towards one party or the other. There’s also no guarantee that the commission will draw maps that perfectly reflect the preferences of a state’s votes. California uses a similarly convoluted process to draw its congressional districts, for example, and its commission yielded districts that were somewhat more favorable to Democrats than the popular vote in that state would suggest — about 62 percent of California voters cast a ballot for a Democratic House member, but Democrats control a little under 72 percent of the seats in that state’s House delegation. Nevertheless, allowing elected officials to draw legislative maps is quite a bit like giving the fox his own key to the hen house. We’ve already seen how that turns out
It should also be noted that this Illinois initiative does not include congressional districts — only state legislative districts. That avoids a problem at the heart of any state-by-state plan to abolish unconstitutional gerrymanders. If Democrats in blue states unilaterally disarm, while Republicans in red states continue to draw partisan maps (or vice-versa) that actually worsens the problem of gerrymandering — at least if both parties are engaged in gerrymandering, then there is a chance that they will cancel each other out. This is why any comprehensive solution to partisan gerrymanders will likely have to come at the national level. Unless both parties are required to stand down at once, it would be dangerous to democracy for either party to give the other a monopoly on gerrymanders.