By John A. Pérez
Nov 18, 2022, 12:00 PM

In April 2013, I penned an opinion piece in the Orange County Register, arguing why Americans had to push back strongly against anyone attempting to weaken the Voting Rights Act of 1965 (“VRA”).¹Pub. L. No. 89-110, 79 Stat. 437 (codified as amended in scattered sections of 52 U.S.C.). The piece was released just two months before the U.S. Supreme Court decided the fate of Section 5 of the VRA in the infamous Shelby County v. Holder.²Shelby County v. Holder 570 U.S. 529 (2013) (holding that the Section 4(b) formula for determining which jurisdictions were subject to Section 5’s federal oversight was unconstitutional because the formula was not “grounded in current conditions.”). At the time of the Supreme Court’s five-to-four decision, I was serving as the 68th Speaker of the California State Assembly.  Section 5 had required jurisdictions with a history of racist election practices to “preclear” proposed changes in voting procedures to the U.S. Department of Justice—or a federal district court in D.C.—before they go into effect.  To the surprise of many, this included several parts of blue states, including three counties in California:  Kings, Monterey, and Yuba County.  Almost ten years later, however, it is still difficult to overstate the significance of the Shelby County decision.  

Today, the VRA faces further dismantling. On October 4, 2022, the Supreme Court heard oral arguments concerning how Section 2 of the VRA, which bars election practices that result in a denial or abridgement of the right to vote based on race, applies to redistricting plans that weaken the collective voting power of Black people. In Merrill v. Milligan, the Alabama state legislature devised a plan where only one of the seven congressional districts is a majority-Black district—although approximately 27 percent of the state’s population is Black. A three-judge federal district court panel—including two judges appointed by former President Donald Trump—ruled that the map be revised to include a second district in which Black voters can elect their candidate of choice. In February 2022, however, the Supreme Court, in a five-to-four ruling, issued a stay—allowing the discriminatory map to be used in the 2022 elections. In effect, when Alabama voters went to the polls for the 2022 midterm elections, they voted in districts that a federal district court deemed likely illegal—and, more importantly, likely hurt the power of Black voters.

As a former elected official, I must ask:  why do politicians insist on drawing their own district lines to pick their voters?  The most effective solution to stop these redistricting wars are independent citizen-redistricting commissions.  In implementing these commissions, however, it matters how commissions are assembled, how much power they are given, and how insulated they are from political pressure.  Broadly speaking, there are four types of commissions:  independent, politician, bipartisan, and advisory.  As recently as 2015, the Supreme Court upheld the constitutionality of these commissions to draw congressional district maps.³ See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787 (2015).

Historically, and in most states today, state legislatures have primary control of the redistricting process.  Some states, however, have commissions with the primary responsibility for drawing lines of congressional districts.  And these states represent our country’s diverse political spectrum, including blue, red, and purple states:  Alaska, Arizona, California, Colorado, Idaho, Michigan, Montana, New York, and Washington.  Of the states, however, only four independent commissions are not directly chosen by politicians:  Arizona, California, Colorado, and Michigan.  And the results are in:  these commissions drew some of the fairest maps in the 2021-22 redistricting cycle.  In California, for example, a fourteen-member commission must include five Democrats, five Republicans, and four members from neither party.  Though imperfect, including in states like California and Arizona with independent commissions, the partisan redistricting wars must end.  Independent commissions offer a less politicized process and more representative districts.  Enough with the “packing” and “cracking,” and instead, let the voters—not politicians—decide the drawing of electoral districts.

Nonetheless, the ball is now in the Justice’s court.