McKay Cunningham: Eroding democracy in Idaho

Every ten years, voting districts must be re-drawn to account for population shifts. The critical question: Who draws these new voting districts? In most states, the legislature draws the new districts, a fact that has proved harmful to democratic governance, because legislators draw voting districts to ensure their reelection and a manufactured party majority. As a law professor teaching constitutional law, I find the increasing trend toward gerrymandered districts to be alarming, particularly if Idaho follows suit.

In the 2016 elections for the United States House of Representatives, the winning candidate, whether Democrat or Republican, typically won with around 70 percent of the vote. Of 435 contests, a margin of 5 percent or less arose in only 17. More than 9 out of 10 House races were landslides, where the victor was a foregone conclusion. Such landslide elections, ensuring that those in power remain so, might be expected of autocratic nations that are democracies in name only, but not here.

To be sure, both parties engage in gerrymandering. This is not a Democratic or Republican issue. This is an issue of representative democracy. Should the voters determine their elected representatives, or should the elected representatives determine their voters?

A handful of states – including Idaho – have confronted this problem head-on. In 1994, we voted to amend the Idaho Constitution to require that an independent commission, rather than the legislature, draw voting districts. The independent commission is purposefully nonpartisan; the commissioners themselves cannot be elected officials. Three are selected by Democratic entities, three by Republican entities. Importantly, at least two-thirds of the commissioners must vote to approve a redistricting map, requiring bipartisan collaboration.

Recently, Idaho’s independent commission has come under attack. Republican legislators proposed a measure to increase the commission’s membership from six to nine. Of the nine commissioners, six would be appointed by Republican entities, three by Democratic entities. The proposal requires only a majority vote in order to approve a redistricting map. As a result, redistricting maps will be the output of one party. They will assure the reelection of that party’s politicians and entrench that party’s dominance in Idaho governance – regardless of what the voters say.

Indeed, Rep. Tom Loertscher, one of the sponsors, conceded as much, stating, “The Legislature should be in charge.” This is precisely what Idahoans voted against in 1994, when 64 percent of us voted to take redistricting away from the legislature so that our elected officials would be chosen by the voters, and not the other way around.

Thankfully, the redistricting proposal stalled in the Senate and will likely not garner enough momentum before this legislative session ends. But it is folly to assume it won’t be back. House Speaker Scott Bedke referred to the independent commission as a problem, saying “I think the problem from our perspective has been that there’s no ability to break a tie.” Bedke was referring to the fact that the independent commission includes three Democrats and three Republicans, and that two-thirds must agree on new redistricting maps. But this is not a problem; it is, in fact, the solution. It intentionally requires bipartisanship, collaboration and compromise.

At minimum, the burden should be on the proposal’s sponsors to prove what’s flawed about the depoliticized redistricting model we currently have. With approximately 80 percent of the Idaho Legislature and every statewide office in Republican hands, it’s hard to see what problem they’re trying to cure by attempting to carve out even more influence over redistricting.

McKay Cunningham is an associate professor of law at Concordia University School of Law in Boise, Idaho, where he teaches constitutional law and tort law.