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• The voting and elections bill H.R. 1 overhauls how new congressional lines would be drawn in many states. States that do not already have an independent commission draw their lines would have to appoint a 15-member, multi-party panel to do so.
• However, the bill says the states — not the federal government — would choose the members of these commissions and equip them for the task.
An expansive voting rights bill known as H.R. 1 includes provisions on voter registration procedures, mail balloting, voter ID laws and campaign finance. One less-discussed, but far-reaching aspect of the law surrounds congressional redistricting — the process by which states redraw district lines for their House delegation every 10 years after the census.
The bill has passed the House narrowly, on a near-party-line vote. It is now under consideration in the Senate.
The redistricting provisions seek to address longstanding complaints that state legislators — who redraw the lines in most states — have a vested interest in drawing lines that benefit their own party, a practice known as gerrymandering.
The bill would require all states to use a system like one used in several states already, where the final lines win approval from a cross-section of Republicans, Democrats and independents on a special commission.
The redistricting provisions became the focus of an attack by the conservative group Turning Point USA in a recent video shared on Instagram.
The video says in part, "States have the sovereignty to redistrict their own states, to decide where their congressional districts are. H.R. 1 destroys that right and gives the federal government the power to establish their own committees to violate the states’ sovereignty in drawing congressional districts. This is a federal committee you did not elect in charge of redistricting your state, your congressional district where you live."
The post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook, which owns Instagram.)
We took a closer look at whether H.R. 1 "gives the federal government the power to establish their own committees" to take over the redistricting process.
We found that this description is misleading.
Turning Point USA did not respond to an inquiry for this article.
Today, nine states have independent commissions that draw congressional district lines: Arizona, Colorado, California, Hawaii, Idaho, Michigan, New Jersey, Virginia, and Washington state. Montana also has an independent commission, but it currently has only one statewide congressional seat. Iowa, meanwhile, has a nonpartisan system that is considered similarly removed from politics.
In the other states, the legislature controls redistricting. Under H.R. 1, those states would need to shift the task to an independent commission. The expectation is that this switch would take place in time for the 2031 round of redistricting, said Michael Li, senior counsel at New York University’s Brennan Center for Justice.
According to the bill, the process would start with an existing nonpartisan state agency assembling a pool of qualified commissioners, screened for conflicts of interest. (The bill is vague about which officials would do this, but for its current commission, Arizona uses an appellate court personnel board, while California uses its state auditor's office.) The state agency would appoint six members to the commission from that pool: two from each major party and two from neither party. Then those six commissioners would appoint nine other commissioners from the pool, three from each major party and three from neither.
This 15-member board would scrutinize the maps and propose new lines, with their meetings and underlying data open to the public.
A final map would have to win enough support from all three party groups.
While H.R. 1 leaves the nitty gritty of line-drawing to the commission, it does spell out some principles that should be upheld. They include, "to the extent practicable," keeping "communities of interest" — such as counties, municipalities and reservations — whole. And the bill explicitly says that the new map cannot be drawn with "the intent or the effect of unduly favoring or disfavoring any political party."
The bill does mandate an overhaul of how redistricting is done in most states. But the video misinterprets this change.
The bill "requires that the states establish their own committees," said David Daley, a senior fellow at FairVote, a voting-and-elections advocacy group. "It does not give the federal government the power to establish those commissions for them."
Jon Eguia, a Michigan State University economist who has studied redistricting systems, agreed: "I don’t see the federal government establishing any committees under H.R. 1."
"You can say that H.R. 1 is bossy toward states, or that it takes away their right to decide how to conduct elections," he added. "But I think the phrase (in the video) is misleading."
Whether the redistricting provisions of H.R. 1 would pass constitutional muster is still an open question.
Redistricting experts said that both supporters and opponents of the law would argue their case using the Constitution’s Elections Clause. That clause says:
"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
Critics of the bill will point to the phrase, "shall be prescribed in each State by the Legislature thereof," arguing that the power rests with legislatures, rather than Congress. Meanwhile, supporters will point to the next phase, "but the Congress may at any time by Law make or alter such Regulations," arguing that this gives Congress the upper hand on this issue.
"The founders gave Congress this power for exactly this reason, concerned that states might develop unfair election processes," Daley said.
States might argue that requiring them to use commissions is an "unconstitutional form of ‘commandeering’ of state government to serve a federal interest," Li said, "but states made that same argument about the National Voter Registration Act, which was also enacted under the Elections Clause, and courts rejected it."
Li also pointed to the 2019 Supreme Court case Rucho v. Common Cause, in which Chief Justice John Roberts, writing for a 5-4 majority, highlighted Congress’ power under the Elections Clause to overrule partisan gerrymanders.
Specifically citing the precursor to H.R. 1, which was then pending in Congress, Roberts wrote that "the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause. … The avenue for reform established by the Framers, and used by Congress in the past, remains open."
Today, the Supreme Court has one more conservative member, however, so critics of H.R. 1 would likely sue if the bill passes.
Turning Point USA said that H.R. 1 "gives the federal government the power to establish their own committees" to take over the redistricting process.
H.R. 1 would overhaul how congressional redistricting would work in the states that do not already have independent redistricting commissions. States currently without one would have to appoint a 15-member panel composed of equal numbers of Democrats, Republicans and independents. The law also says, broadly, that lines should not be drawn for partisan gain and that communities, if possible, should not be divided.
However, the bill says states — not the federal government — would choose the commissioners and equip them for the task. These panels would not become the federal government’s "own committees" handling redistricting.
We rate the statement Mostly False.
Turning Point USA, video in an Instagram post, March 27, 2021
U.S. Constitution, Elections Clause: Article I, Section 4, Clause 1, accessed April 1, 2021
National Conference of State Legislatures, "Redistricting Commissions: Congressional Plans," accessed April 1, 2021
U.S. House of Representatives, "The Apportionment Act of 1842: "In All Cases, By District," April 16, 2019
Oyez, "Rucho v. Common Cause," accessed April 1, 2021
Supreme Court, majority opinion in Rucho v. Common Cause, accessed April 1, 2021
Cook Political Report, "Redistricting Overview: Over Half of House Seats Can't Be Gerrymandered," Oct. 1, 2021
Email interview with Justin Levitt, law profesor at Loyola Law School, April 1, 2021
Email interview with Michael Li, senior counsel at New York University’s Brennan Center for Justice, April 1, 2021
Email interview with David Daley, senior fellow at FairVote, April 1, 2021
Email interview with Jon Eguia, Michigan State University economist, April 2021
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