Guarding the Henhouse: Who Should Draw Credible Election Boundaries?

April 3, 2018
Edward McMahon


Edward R. McMahon, Ed.D

Adjunct Associate Professor of Political Science, University of Vermont

Vice Chair, Election Reformers Network

A hot item on the current political reform agenda in this country concerns the redrawing of the boundaries that define congressional districts.  This constitutionally-mandated process typically occurs every 10 years, based on population changes identified through the Census, and is underpinned by core principles of an equitable distribution of population between districts, and the absence of discrimination on grounds such as ethnicity or race.

In the US this election district drawing process is the source of some of our most intense political and legal battles.  These will continue; in June the Supreme Court punted on the issue, leaving two states’ districting plans (one favoring the Republicans and the other the Democrats) in place while declining to rule on the core arguments presented; especially the issue of whether the extremely partisan district drawing violates the constitutional right to equal representation.

Nearly every other democracy in the world also must decide district boundaries but most do not engage in the combative and political polarizing battles on this issue that we do. Why not? Certainly not because political parties in other countries are nicer to each other or don’t care as much about winning. Instead, many of them appear to better manage the way districts are drawn so that this issue does not become a poison pill in the political process. With anti-gerrymandering ballot initiatives gaining momentum in several states and other changes potentially ahead, it’s worth examining this difference.

Other Countries.  The challenges raised by redistricting raise fundamental questions.  Whose job should it be to undertake the redistricting?  Should it be the legislature, which is elected to be the voice of the people?  Or, by contrast, should it be some sort of body that is insulated, at least to a certain extent, from partisan political considerations?  Let’s briefly consider how they are addressed in other democracies around the world.

The expansion of the democratic franchise in the 19th century resulted not only in single-member plurality election systems as in the US; some countries adopted proportional representation (PR) to create more inclusive and representative results.  Boundary drawing is less of a challenge in these systems because they use multi-member districts, which can be aligned with political or geographic boundaries and which can address changing population through adjusting the number of representatives.  Despite the rise of PR, however, the use of single-member districts has continued in many countries, in part because of its attribute of linking the voter to a specific legislator to represent his or her interests.

There are various systems for choosing electoral boundaries.  These include selection by the legislature or by a body appointed by the executive, by an election management body, by some form of multi or non-partisan commission, or by a judicial body. Lisa Handley, the president of Frontier International Electoral Consulting, studied 60 countries that draw districts to see how they handled the process. She found that only 14 (or just under 25%) of the countries utilize systems that gave the legislature a predominant role in drawing districts. By contrast, over two-thirds of the countries utilized some type of commission, be it judicial, independent, and/or multi-partisan.

According to the non-partisan ACE Project study of comparative constituency delimitation processes, 42% are decided by election management or boundary commissions, 37% were drawn up by legislatures and 7% by executive branches.  While these figures differ somewhat from those generated by Dr. Handley (due in part to different range of countries surveyed), neither accords predominance to legislative processes.  Indeed, by combining the election management body and boundary commission categories, both of which are at least in theory legally removed from either legislative or executive branch dominance, we see that the data in both cases indicate that legislatures are not the principal agent of drawing districts around the world.

So how are districts drawn? It may be, as in New Zealand, multi-partisan in nature and include representatives of the major parties.  In most cases, however, a politically neutral body draws new districts.  For example, Canada’s ten Federal Electoral Boundaries Commissions (FEBCs) operate independently to propose new boundaries, create new electoral maps and consult with citizens in their respective provinces. In Britain, the ‘redistribution of parliamentary constituencies is carried out by a nonpartisan Boundary Commission. While parties may comment on and pose objections to the commission’s redistricting recommendations, they do not direct the process and have limited impact. In a long-term democracy such as Britain’s, parliament must approve the new independently-drawn electoral maps, but this is typically a formality.

In South Africa, a Municipal Demarcation Board serves as the boundary authority for elections.  Mexico’s independent election commission has this responsibility.  France is the long-term democracy whose process is most analogous to that of United States. There, districts are drawn by the executive branch and reviewed by a constitutional council. But the process is handled at the national level, rather than by states. A study of the level of partisan bias in French parliamentary redistricting has determined that it is minuscule.

Efforts to develop a common consensus on the core principles of determining districts exist. For example, a number of international governmental and non-governmental organizations, such as the Commonwealth Secretariat, the European Union and the International Foundation for Electoral Systems have proposed guidelines for effective delimitation.  Common core principles include equality of participation, conformity with local boundaries, and respecting natural boundaries.

Here in the U.S.  In contrast to experience elsewhere, the task of redrawing Congressional and/or state legislative district boundaries in the US has been traditionally a constitutionally-mandated core responsibility of state legislatures.  Despite the Supreme Court’s recent equivocation, this is changing.  The Supreme Court ruled in 2015 that models other than simply having legislatures draw the line could be constitutional.  Not surprisingly given the current political environment, the idea of utilizing other models such as independent commissions to draw the lines is attracting increasing interest.  In 2017, of the 37 legislatures that do the redistricting themselves, 22 had bills under consideration that would shift the responsibility to some kind of commission. The National Council of State Legislatures has outlined the range of models utilized or under consideration; these include advisory commissions, back-up, commissions with primary responsibility but appointed by the legislature, or independent commissions.

Moving Forward.  What will happen now?  Each state will have to address this increasingly controversial question, as the power of determining who chooses how the henhouse will be guarded e.g. drawing constituency boundaries has been a constitutionally-mandated state legislative power, even if legislatures have, in some cases, delegated this authority.  A political consensus must form in each state over what process to use.

We have seen that the courts are now becoming increasingly involved.  It may well be that the principle of equal protection extending to political rights will become an operating legal concept with regards to redistricting.  Should this happen the Republicans may prove to have been, in effect, too successful in their strategy of winning state legislatures to re-draw maps, as it will have resulted in this judicially-determined course correction.  But this may take us into uncharted territory, as judges may end up being subject to partisan attempts to unseat them, possibly through impeachment, or other attempts to circumscribe their powers regarding redistricting.

A radical but practical reform would be to create multi-member congressional districts combined with election systems that are not simply first-past-the-post winner-take-all in nature.  In such contexts the risks of gerrymandering are greatly reduced.  Less ambitious changes would be to focus on the method and process of delineating districts, especially by creating mechanisms for increasing public confidence that districts are drawn according to clearly established principles rather than for purely political advantage.  The practice common elsewhere in the world, and implemented in the U.S. in states such as California, of creating a commission-based form of districting, seems to be a very feasible avenue to further explore.  This too, however, carries with it complexities regarding the nature and structure of such commissions, especially the manner in which commission members are appointed, and how to ensure maximum transparency and accountability of such bodies.

Time is of essence.  If reforms are not enacted, it is very possible that there will be widespread gerrymandering in the 2020 redistricting cycle, with potentially grave consequences for the future of our democracy.