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End political gerrymandering in Arkansas

by Joshua M. Silverstein Special to the Democrat-Gazette | April 2, 2023 at 2:05 a.m.

Republican Sen. Bryan King has filed Senate Joint Resolution 1 (SJR1), a proposed amendment to the Arkansas Constitution that would create an independent districting commission that would draw electoral districts for the Arkansas House and Senate.

Creating such a commission would substantially immunize state elections from the deeply harmful practice of political gerrymandering. It is thus imperative that the General Assembly place SJR1 on the ballot in 2024 so that Arkansans can adopt this essential change to our voting system.

The United States elects most legislators via single-member districts. Those districts are typically created by elected officials. In Arkansas, the General Assembly draws congressional districts, while the Board of Apportionment--the governor, the secretary of state, and the attorney general--prepares the legislative maps for the state House and Senate.

Traditional criteria for crafting electoral boundaries includes equalizing the population of each district (which is required by the U.S. Constitution), respecting city and county borders, contiguity (all parts of a district are connected), and compactness (districts have simple shapes that keep all parts of a district close together)

"Gerrymandering" is the process of creating districts to advantage a particular group in an election rather than focusing primarily on traditional districting criteria. "Political" or "partisan" gerrymandering occurs when boundaries are drawn to aid a political party.

Gerrymandering undermines the right to vote by making it more difficult for some citizens to elect officials that represent their views. Under political gerrymandering, the votes of those in the minority party have less weight in elections. In essence, partisan gerrymandering is a form of election rigging for the majority party.

The purpose of elections is for voters to select their representatives. But gerrymandering constitutes the representatives selecting their voters: Government officials decide which subsets of the population may vote in which races, partly or largely mooting elections.

Voting is a fundamental right under the United States and Arkansas constitutions. Partisan gerrymandering undermines this right based on a person's political affiliation, making gerrymandering inconsistent with the democratic principles embedded in our national and state constitutions.

Imagine if a law was adopted providing that Republicans must pay 20 percent more in taxes than Democrats, or that Democrats are only entitled to free speech six days of the week, or that Republicans are allowed six jurors when charged with a crime whereas Democrats are entitled to 12.

Such discrimination on the basis of party is precisely what gerrymandering does. Political gerrymandering is equivalent to a law providing that minority party votes are worth only 90, 70, or even 50 percent of majority party votes.

While gerrymandering has a long history in this country, it has reached epidemic proportions in the last two decades because advances in computers and data collection make it easier to draw districts that maximize the advantage of one party. Consider a few examples.

In 2012, Pennsylvanians cast roughly 100,000 more votes for Democrats than Republicans in congressional races. But thanks to partisan gerrymandering, Republicans won 12 of Pennsylvania's 18 seats in the House.

In 2016, 33 of the 435 positions in Congress were decided by a margin of under 10 percent. All of the remaining House races were landslides where the result was essentially settled before voters cast a single ballot. The average margin of victory that year was 37.1 percent, a figure more consistent with elections in Russia or North Korea than in a democracy like ours.

In 2020, there were 12 competitive congressional districts in Texas. After redistricting, there were two. Only two out of 38 Texas House races in 2022 were decided by less than 10 percent.

Uncompetitive districts reduce or eliminate incentives for elected officials to compromise with the other side because the greatest threat to their job is from within their own party--namely a primary challenge. Deep red and blue districts also reduce turnout; why vote if the result is preordained by the district map?

Political gridlock and the deep frustration most Americans have with our political system are heavily driven by gerrymandering. It is thus not surprising that polls consistently find that the vast majority of Americans of every political stripe strongly oppose the practice.

How do we eliminate partisan gerrymandering? We bar the fox from guarding the henhouse. We remove politicians from the process of creating their own electoral districts.

That is precisely what Senator King's proposed constitutional amendment would do in state races.

Under the amendment, the Board of Apportionment would appoint nine members to the Arkansas Apportionment Commission. At least one of the nine must be educated in math, at least one must be competent in technology-assisted cartography, and at least one must be a licensed attorney.

Elected officials, lobbyists, party officials, and those who have held such positions in the recent past are not eligible to serve on the commission. Upon leaving the commission, former members are barred for two years from running for office and from actively participating in or donating money to political campaigns.

The commission is charged with creating legislative districts for the state House and Senate using only traditional districting criteria. SJR1 expressly bars the commission from considering political factors, such as data about partisan affiliation and the impact of new boundaries on incumbent legislators.

The commission submits its proposed district maps to the Board of Apportionment. If the board rejects a map, the commission must redraw the districts. But the board may only reject the commission's plan three times. After the third rejection, the amendment authorizes the Arkansas Supreme Court to create the legislative map.

This process will not completely eliminate politics from boundary drawing for state races. But using an independent commission to draw districts will dramatically reduce the influence of partisanship by removing politicians from the process.

Multiple states from across the political spectrum employ independent commissions, including Alaska, Arizona, California, Colorado, Idaho, Michigan, Montana, New York, and Washington. The same is true for other countries with established democracies that elect officials via single-member districts, such as the United Kingdom, Canada, New Zealand, Australia, India, and Mexico.

If independent commissions work in all of those places, there is no question that such a commission will be successful in Arkansas. Please tell your legislators to place SJR1 on the ballot in 2024.

Joshua M. Silverstein is a Professor of Law at the University of Arkansas at Little Rock, William H. Bowen School of Law. The views in this column are his own.

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