In 2018, Michigan voters rejected the traditional model of having state legislators create electoral maps. They chose a different method aimed at removing extreme partisanship from the redistricting process. In 2021 the state used an independent commission made up of four Democrats, four Republicans and five independents to redraw the state’s legislative and congressional maps.

It was no easy task. In December a federal judge struck down Michigan’s new Senate and House maps for an unconstitutional racial gerrymander, kicking off a court-involved process similar to what states with traditional redistricting undergo. The commission replaced three members this year after multiple resignations, as infighting reportedly plagued the group. 

But advocates say there’s no turning back. “This is still worlds better than a group of politicians and special interests hiding behind closed doors and drawing maps that benefit one party or one special interest,” Jamie Lyons-Eddy, executive director of Voters Not Politicians, a nonprofit that advocates for various government reforms, told Democracy Docket.

Michigan is among four states – with Arizona, Colorado and California – that opted out of the typical redistricting process for one intended to be more transparent. Some states like Massachusetts manage to make the traditional model work with few difficulties, while others are still litigating maps drawn in 2022.

In Louisiana, for example, the state has yet to begin redrawing its legislative maps after a federal district court struck them down for a violation of Section 2 of the Voting Rights Act (VRA). The case is far from being resolved due in part to a number of legal developments in other lawsuits that could impact how the court evaluates the current case. 

“I believe legislators can draw fair and effective maps through a transparent and inclusive process,” Jeffrey Wice, a New York Law professor and redistricting expert, told Democracy Docket. “But if legislators get greedy, if they overreach, if they become too partisan, then the public is going to say that the Legislature has gone too far. And at some point, either the voters or the courts are going to take that power away from legislators.”

Legislatures are still the primary map-drawers in the U.S. Should that change? 

The Louisiana case demonstrates some of the pitfalls of having state legislators lead the redistricting process, particularly in states where one party controls the Legislature. Lawmakers’ political motivations in some cases end up taking precedence over enacting maps that fairly represent all voters, prompting scores of legal challenges.

In South Carolina, for example, the GOP-controlled Legislature waited until January 2022, over eight months after the 2020 census release, to redraw the state’s electoral districts. In the new congressional map, lawmakers broke up the state’s 1st Congressional District by moving over 30,000 Black voters out of that district and into its 6th. South Carolina Republicans said they were motivated by political objectives, but the state’s NAACP chapter and voting rights advocates alleged the map weakened the voting strength of Black voters in violation of the 14th and 15th Amendments.

Last year, a federal three-judge panel agreed the move was an unconstitutional racial gerrymander. In May, the U.S. Supreme Court reversed that ruling, angering voting rights advocates. “The Legislature cheated voters out of a fair map [by] artificially entrenching Republican influence in the 1st congressional district,” Allen Chaney, legal director of the ACLU of South Carolina, said at a May NAACP press conference after the ruling.

It’s not only Republicans who are fueled by partisanship. In Illinois, where Democrats have long governed the state, a group of voters and civil rights groups challenged the legislative map redrawn by the state’s Legislature.

The lawsuit alleged lawmakers “cracked” the East St. Louis area and spread Black voters throughout three House districts in order to benefit white Democratic incumbents. The plaintiffs asked a federal district court to “order alterations that would create additional districts featuring majorities of either Latino or Black voters,” but a three-judge panel upheld the districts in 2021.

“Illinois’ process basically demonstrated everything that’s wrong with elected officials being in charge of redistricting,” Dan Vicuña, director of the Redistricting and Representation program at Common Cause, told Democracy Docket. “It lacked transparency, disregarded public input, made it very difficult for the public to provide feedback and ignored a lot of community needs.”

In October, the nonprofit organization released a “report card” grading states on their redistricting processes based on certain criteria. The states that scored above average all shared commonalities such as providing ample opportunity for public input and ensuring communities of color have a voice in the process. Illinois received an F, while the only states that received As were California and Massachusetts, which both passed maps with relatively little trouble. 

“Massachusetts sets the example here,” Wice said. “In a state completely controlled by Democrats, the legislature has enacted congressional and state legislative maps that have satisfied political parties, civic activists, and minority groups.”

But Vicuña says Massachusetts is unusual. The state’s unique geography would make it difficult for a lawmaker, for instance, to try to draw a Republican congressional district in a heavily Democratic state. But most importantly, “very effective grassroots organizing actually resulted in significant wins, because legislators were willing to listen.”

Independent redistricting commissions are a promising step forward, advocates say

Roughly half of U.S. states allow citizen initiatives or referendums, which allows citizens to bypass their state legislature by placing proposed statutes and/or constitutional amendments on the ballot with enough signatures. That’s essentially how Michigan took mapdrawing out of the Legislature’s hands.

In Ohio, a ballot initiative is underway to replace the state’s redistricting commission, which includes the governor and secretary of state, with a commission made up of Ohio voters. 

“It becomes much more difficult in states that don’t have that option of direct democracy, to try to get legislators to dismantle the system they built to advantage themselves,” Lyons-Eddy said, “We were lucky that we have the option of taking this straight to the ballot for the people to decide.”

When Common Cause was evaluating redistricting processes, “states that were trying to take the power away from legislators and hand it to independent bodies performed significantly better,” Vicuña said. All four states that use independent redistricting commissions — which typically comprise a mix of Republicans, Democrats and independent members — scored above average.

“Those bodies are designed to have partisanship that’s balanced to exclude political insiders like elected officials [and] lobbyists from the process,” Vicuña said. “They don’t have a personal political agenda, even if they may have very different views politically.”

In traditional redistricting cases, there seem to be fewer legal avenues available to prospective map challengers. The Court’s ruling in Alexander v. South Carolina NAACP established a high burden for racial gerrymandering claims. Court precedent doesn’t allow for the federal litigation of partisan gerrymander cases. And in other VRA-related cases, Republicans are arguing that only the attorney general, not private parties, can bring claims under Section 2. 

Experts say the lengthy courtroom battles that stem from Legislature-drawn maps show the process must change in order to provide maps in a timely fashion. “If you look at states with independent commissions,” Michael Li, senior counsel for the Brennan Center’s Democracy Program, told Democracy Docket, “there’s much less litigation over maps, and it tends to be resolved much more quickly.”

Lyons-Eddy says Michigan could be an example for what a better redistricting process could look like. “I think we can do a little bit better each time,” she said. “But I think the model of an independent citizens redistricting commission that excludes politicians and that requires people to work across parties to establish district lines is absolutely the way this should be done.”

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