Redistricting: Eroding democracy in Idaho

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When lawmakers draw their voting districts to assure their reelection and to assure the dominance of their political party, they “gerrymander.” As a law professor teaching Constitutional Law, the increasing trend toward gerrymandered districts is alarming.

Every ten years voting districts must be re-drawn to account for population shifts. The critical question: Who draws these districts? In most states, the state legislature draws the new districts, a fact that has proved harmful to democratic governance. Legislators have been unwilling to resist self-interest, instead drawing voting districts that assure their reelection and a manufactured party majority – regardless of what the voters say.

The results are clear. In the 2016 elections for the United States House of Representatives, the winning candidate, whether Democrat or Republican, typically won by around 70% of the vote. Of 435 contests, a margin of 5% or less arose in only 17. More than 9 out of 10 House races were landslides where the victor was a foregone conclusion. Such landslide elections, insuring that those in power remain so, might be expected of autocratic nations that are democracies in name only, not here.

To be sure, both parties engage in gerrymandering. This is not a Democrat or Republican issue. This is an issue of representative democracy. Should the voters determine their elected representatives, or should the elected representatives determine their voters?

A handful of states – including Idaho – have confronted this problem head-on. In 1994, we amended the Idaho Constitution by a 64% margin to require that an independent commission draw voting districts, rather than the legislature. The independent commission is purposefully nonpartisan; the commissioners themselves cannot be elected officials. Three are selected by Democrat entities, three by Republican entities. Importantly, at least two-thirds of the commissioners must vote to approve a redistricting map, requiring bipartisan collaboration.

Recently, Idaho’s independent commission has come under attack. In a proposed constitutional amendment, the independent commission is set to become a vehicle for gerrymandering. The proposed amendment approved last month by a Senate committee increases the commission’s membership from six to nine. Of the nine commissioners, six would be appointed by Republican entities, three by Democrat entities. The proposed amendment requires only a majority vote to approve a redistricting map. As a result, redistricting maps will be the output of one party. They will assure the reelection of that party’s politicians and entrench that party’s dominance in Idaho governance – regardless of what the voters say.

Indeed, Representative Tom Loertscher, one of the sponsors, conceded as much, stating: “The Legislature should be in charge.” This is precisely what Idahoans voted against in 1994, when 64% of us voted to take redistricting away from the legislature so that our elected officials would be chosen by the voters, not the other way around.

At minimum, the burden should be on the proposal’s sponsors to prove what’s flawed about the depoliticized redistricting model we currently have. With approximately 80% of the Legislature and every statewide office in Republican hands, it’s hard to see what problem they’re trying to cure by attempting to carve out even more influence over redistricting.

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McKay Cunningham is an associate professor of law at Concordia University School of Law in Boise, Idaho, where he teaches Constitutional Law and Tort Law. His research interests and publications include gerrymandering, international law, and data privacy and security.

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