Two Southern states could have redistricting commissions on the 2020 ballot

Arkansas and Virginia could be the first two Southern states to have redistricting commissions with citizen representation if ballot measures in each state pass in 2020. The proposed constitutional amendments in both states would set up a multi-person commission with representation from both major parties to draw state legislative districts and congressional districts following the next census.

Several states in the West, including Arizona, California, and Montana, have already moved to bipartisan or independent commissions, hoping to lessen the role that partisan and political concerns play in drawing legislative districts. But until now, no states in the South — a hotbed of partisan and racial gerrymandering — have implemented such measures.

Last week, an Arkansas coalition called Arkansas Voters First, led by the state's chapter of the League of Women Voters, filed an initiative with the secretary of state's office that would enshrine an independent redistricting commission as an amendment to the state's constitution. If it gets the requisite amount of signatures — 89,151 across 15 counties by July — the initiative will be on the ballot in 2020. And if passed, it would make Arkansas the first Southern state to draw its congressional and state legislative district lines with a citizens' commission.

Arkansas has the most expansive direct democracy provisions in the South, and some of the most expansive in the country. This has made the ballot initiative an agent for change in the state in recent years: Voters have used initiatives to legalize medical marijuana and raise the state's minimum wage. David Couch, a Little Rock lawyer, authored the marijuana and minimum wage initiatives. He's also one of the key authors of the redistricting measure.

"In [the current] process, politicians draw the maps to protect themselves and their friends," Couch told Facing South. The current method for redistricting in Arkansas is for the three-person Board of Apportionment — composed of the governor, the attorney general, and the secretary of state — to draw state legislative lines. The state legislature is in charge of drawing congressional districts.

The new amendment would create a nine-person commission composed of an equal number of registered Republicans, Democrats, and independents. Anyone could apply to the board, though people who are registered lobbyists, elected officials, state officials, or family of any of the above are disqualified, and the number of applicants would be culled down to approximately 60 through a process involving former state judges, the governor, and leaders in both parties. Then the final commissioners would be selected randomly — three Democrats, three Republicans, and three independents. Their final maps would have to be approved by six of the nine commissioners, and the process would be public and transparent from start to finish.

"We want to ensure that this is a state where partisan lobbyists and political operatives cannot take over that process and then take away the rights of the people to pick their elected leaders instead of the other way around," said Bonnie Miller, the president of the Washington County chapter of the League of Women Voters and one of the leaders of the Arkansas redistricting commission campaign.

Though Arkansas' congressional districts are not gerrymandered to the degree of those in states like North Carolina or Virginia, a recent analysis by the Schwarzenegger Institute at the University of Southern California found that its state legislative districts put it in the top 10 most partisan gerrymandered states in the country. Specifically, the analysis identified Arkansas as one of six states where the winning party during the 2018 elections — in Arkansas' case, Republicans — received a share of state legislature seats that exceeded its share of the popular vote by at least 15 percentage points.

Notably, those Republican-held state legislative districts and Arkansas' four congressional districts, all currently held by Republicans, were drawn following the last census in 2011 by a majority-Democratic commission and a Democratic state legislature. "They just did it so badly that they lost all the seats," said Michael Li, senior counsel at the Brennan Center and a redistricting expert. "The politicians doing it just weren't very good at it." But now, he said, politicians have greater access to data and technology tools that can allow them to engineer districts very specifically — making it crucial, in his view, to implement an independent commission before new districts are drawn in 2021.

"We don't want to miss another 10 years before we draw lines again," said Miller.

Virginia, on the other hand, is widely recognized as one of the most gerrymandered states in the country. And this week, lawmakers voted — for the second consecutive session — to refer a constitutional amendment to voters that would create a bipartisan redistricting commission in charge of drawing congressional and state legislative districts. That it was passed in the second consecutive session is key: Virginia requires a potential amendment to pass the legislature two times in a row before it can be referred to voters.

Virginia's proposed amendment would create a 16-person commission that includes four legislators from each major party and eight citizens. Party leaders would pick which legislators serve on the commission, and would recommend citizen members who would then be selected by a committee of retired judges. The final maps must receive support from at least six of the eight legislators and six of the eight citizens on the commission, and would then be subject to a vote in the General Assembly. If the legislature rejects them twice, the Virginia Supreme Court would have final say over the districts.

In Virginia, the commission is more controversial. Though an amendment with the same language passed with overwhelming bipartisan support in 2019, when Republicans controlled the state legislature, it lacked the support of most of the Legislative Black Caucus, which was concerned that the language in the measure wouldn't be enough to protect districts from racial gerrymandering. This time around, more Democrats have abandoned ship on the redistricting commission as written, and it passed the legislature with only nine Democratic votes. If the amendment doesn't pass muster with voters, the Democratically-controlled legislature will draw new district lines following the 2020 census.

But time, Li of the Brennan Center notes, isn't on their side. They're asking voters to rely on blind faith that Democrats won't gerrymander Virginia's districts in 2021, as Republicans did in 2011. The next chance to redraw district lines wouldn't be until after the next census, in 2031.

"[The proposed measure] moves Virginia from an F to a B," he said. "But that can be fixed, you can go from a B to an A. And you know, it's a meaningful, significant step towards something better."