Arizona was back in the news last week with Governor Jan Brewer’s highly controversial move removing the chairwoman of the state’s “Independent” Redistricting Commission and attempt to remove the two Democratic committee members, all for vaguely defined “gross misconduct.”  The gross misconduct in question seems to be closely related to producing a new congressional district map that Republicans in the state’s congressional delegation found unfavorable to their prospects for guaranteed reelection.  That the move was baldly partisan is evidenced by the fact that Brewer sought only to remove only the Democratic committee members in addition to the independent chairwoman, and Brewer and the state legislature who approved the chairwoman’s removal are rightly being criticized for injecting partisanship into a system that was supposed to make the redistricting process independent from the state’s highly polarized political climate.

What is receiving less attention than the partisanship is the drastically restricted realm of options states have to try to create independent systems for redistricting.  Arizona did exactly what would be expected to insulate the process from the legislature.  Just as federal judges have life tenure and can only be removed by impeachment, committee members in Arizona had fixed terms and, in theory, can only be removed for misconduct at the governor’s behest with the approval of the state legislature.  Seeing the process now corrupted by an ideologically aligned governor and legislature, what can the voters in Arizona to make the process more independent and more immune from partisan influence?

What they can’t do is abandon congressional elections using single-member districts in favor of some other electoral rule that would obviate the need for drawing district lines at all.  By law, though only since 1967, states are required to establish a number of districts equal to the number of representatives to which they are entitled and to elect one representative from each of those districts.  2 U.S.C. 2c.  The legislation was a response to the Supreme Court’s decisions in Baker v. Carr, Wesberry v. Sanders, and Reynolds v. Sims, requiring states to adhere to the one person, one vote principle.  There was a fear that states would use multi-member districts as a remedial method, threatening incumbent members of Congress.  Additionally, multi-member districts with at-large voting rules could be used to dilute minority voting strength and prevent the election of minority preferred candidates.  House Judiciary Committee Hearing, at 55.

There is no constitutional, or even historical, reason that single-member districts should be the only method available to states to determine the membership of their congressional delegations.  “It should be apparent, however, that there is no principle inherent in our constitutional system, or even in the history of the Nation’s electoral practices, that makes single-member districts the ‘proper’ mechanism for electing representatives to governmental bodies or for giving ‘undiluted’ effect to the votes of a numerical minority.”  Holder v. Hall, 512 U.S. 874, 897 (1994) (Thomas, J., concurring).  Congress first took up clarifying the constitutional mandate for the election of Representatives in 1842 with the Apportionment Act of June 25th, 1842.  In that act, Congress declared for the first time that representatives must be elected from districts “formed of contiguous territory, no one district electing more than one representative,” or in other words, contiguous single-member districts.  Congress quickly changed course, however, and redistricting legislation in 1850 did not contain the single-member district requirement.  The 1967 Act was the next congressional action on the issue.

Though the 1967 legislation remains on the books to this day, there have been multiple attempts to diversify the methods by which states can choose to elect their House delegations. Cynthia McKinney was the only Congresswoman from the state of Georgia and the only black Congresswoman from the Deep South states in the 104th and 105th Congresses. Though she was initially elected in 1994 from a majority-minority district, after a redrawing of the districts she was able to win reelection in 1996 from a white-majority district. McKinney introduced the Voters’ Choice Act (HR 3068). The bill sought to overturn the 1967 act to allow states to choose to use multi-seat districts in congressional elections provided that the electoral method chosen met certain requirements. The electoral method chosen would have had to guarantee that a majority of votes could always elect a majority of seats, and that any group representing a third of the electorate would be able to elect a proportional share of the available seats.  The 12th District of North Carolina, represented by Congressman Melvin Watt, has been the subject of a series of legal challenges, having been described as a “serpentine” district stretching along I-85 using “white corridors” to connect concentrated black populations from Winston-Salem in the North to Charlotte in the South. Watt’s HR 1173 was a simpler version of Congresswoman McKinney’s bill, eliminating the strict requirements for majority rule and proportionality, and giving essentially free reign to states to choose their electoral rules within the limits of the Voting Rights Act of 1965. Though the bill had the support of Clinton’s Department of Justice, the 1967 legislation remains the law of the land, eliminating any choice for states to try to escape the inherent partisanship of districted elections.

 The drawing of district lines under a single-member districting system forces legislatures to choose between two principles both of which most voters would consider essential to a properly functioning democracy: representation and competition. If the districts are drawn such that each has an ideologically divided constituency, the result will be a high level of electoral competition and a lack of predictable success for one or the other major political party. At the same time, these types of districts leave half of the constituency arguably without representation since those voters supported the losing candidate and are likely to support the incumbent’s challenger in future elections.  The Republican representatives from Arizona objected to the map being considered by the independent commission largely because the map made their districts more competitive.

One solution that should be available for a state like Arizona that wants to select its congressional delegation free from partisan influence is to remove redistricting as an element of that selection progress.  Though multi-member districts with at-large voting rules have been used in the past to discriminate against racial minorities, the Voting Rights Act of 1965 now protects minorities from systems that would have a dilutive effect on their voting power.  In the modern era, multi-member districts with some form of proportional voting rules would allow states to add and subtract members with each subsequent census without having to substantially redraw district lines.  States that choose to elect their entire congressional delegation in one multi-member district, such as states that have 2-5 Representatives, would be entirely free from the need to redraw district lines.   This type of districting would obviate the need to draw majority-minority districts, and could more effectively match racial and political minority voting preferences to actual representation.  Larger district sizes could also help to achieve real enfranchisement for white liberals in Republican dominated suburbs, non-geographically defined white women, dispersed Latino or African-American communities, or any other politically cohesive minority group.

Ending the trade-offs between competitive elections and representative districts should be the goal of electoral reformers.  Instead, Congress has locked states into the only electoral system that forces these trade-offs.  If the people of Arizona or any other state truly want to end the bitter partisanship engendered by redistricting, whether by state legislatures or independent commissions, they should seek to end the need for redistricting altogether.  If Congress freed states from the single-member district requirement, enacted to serve incumbents and protect minority voters from anachronistic discrimination, the result could be congressional elections that are both competitive and result in a representative legislature.

Image Credit: AZ Capitol Times