Can the People End Gerrymandering if the Supreme Court Punts?
What are Citizen Initiatives?
The citizen initiative is the power voters in some states possess to circumvent the legislature to pass a law or amend a state constitution. Citizens must gather thousands of signatures to put a proposal on the ballot for voters to decide.
All told, 19 states give citizens this power, and the people have used it in one way or another to enact checks and balances on gerrymandering. Voters in five states – an unprecedented number – passed reforms in 2018. Specifically:
- Voters in Michigan used a citizen initiative to establish an independent citizens commission, the gold standard in redistricting reform.
- Voters in Utah set up a citizen commission to draw maps but gave veto power to the state legislature (which falls a tad short of true “independence”).
- Missouri voters gave the map-drawing job to an impartial state demographer.
- Citizens pressured legislators in Colorado and Ohio to put reforms on the ballot, lest they do it themselves. Colorado voters then approved an independent citizens commission for congressional and statehouse maps, while Ohio voters passed protections that make it harder for one party to dominate the process.
What Does the Supreme Court Make of State Reforms?
The recent citizen initiative victories have not escaped the notice of the Supreme Court.
Take this excerpt from oral arguments in Rucho v. Common Cause between Justice Neil Gorsuch and our lead counsel Emmet Bondurant, the 82-year-old lion of the civil rights movement who 55 years ago successfully argued in Wesberry v. Sanders that congressional districts should each be made up of about the same number of people.
JUSTICE GORSUCH: Why should we wade into this when that alternative exists?
BONDURANT: The simple answer, Justice Gorsuch, is this: The vast majority of states east of the Mississippi, including specifically North Carolina, do not have citizen initiative.
JUSTICE GORSUCH: Can you amend your constitutions? That — that has happened in a lot of states, too.
BONDURANT: You can only amend the constitution with the approval of the legislature, in proposing an amendment that gets to the ballot and is then ratified. And that is not an effective remedy. And the states in which you have independent redistricting commissions are states in which those commissions were adopted over the dead bodies of the legislators by citizen initiative, passed overwhelmingly by the citizens and in the face of legislative opposition.
In other words: The state-based options do not relieve the Court of its duty to vindicate constitutional rights, said Allison Riggs, arguing on behalf of the League of Women Voters of North Carolina, whose case was consolidated at trial with the Common Cause case.
The Court should resist another punt — and finally endorse a standard that protects the First Amendment of voters nationwide.
Such a decision would act as a springboard for the people-powered reform movement and reassure the American public that the Court does not “serve one party or one interest.”
“[T]he reputational risk of doing something is much, much less than the reputational risk of doing nothing, which will be read as a green light for this kind of discriminatory rhetoric and manipulation in redistricting from here on out,” Riggs told the Court.