Voters Return Redistricting Authority to Legislatures

Voters Return Redistricting Authority to Legislatures

As mid-decade redistricting battles play out, Virginia voters are the latest to put congressional map-making back in the hands of state lawmakers.

A majority of Virginians opted to return redistricting authority to a commission made up of legislators and citizens. (Photo by Win McNamee/Getty Images)

Virginians have given their Legislature the green light to enact new congressional maps ahead of the 2026 midterm elections. The state is the latest to take a side in the biggest wave of mid-decade redistricting since the 1800s. The redistricting wars of the last several months-which will ultimately determine control of the U.S. House of Representatives-represent more than just a contentious political moment. They have written a new chapter in the story of state legislative power.

The U.S. Constitution grants state legislatures authority over the "times, places and manner of holding elections," which includes congressional and state legislative redistricting. Redistricting occurs against the backdrop of some federal guidelines and guardrails, notably the Voting Rights Act of 1965, but state legislatures control the ins and outs of mapmaking.

In 35 states, the legislature retains its authority over congressional redistricting, state legislative redistricting, or both. In the remaining 15 states, voters have given that power to commissions.

Noting the value of policymaking and legal experience, some states seat legislators or other officials on their commissions, along with laypeople. Others assign experienced legislative staff to their commissions to help navigate the process. Still others give legislative leadership a role in selecting commissioners.

In the 2015 case Arizona State Legislature v. Arizona Independent Redistricting Commission, the U.S. Supreme Court declared that commissions are a valid exercise of legislative redistricting power whether or not they involve legislators. The case asked whether a ballot initiative could constitutionally delegate redistricting authority to a body other than the state legislature-in Arizona, the Arizona Independent Redistricting Commission. The Supreme Court held that the reference to the "Legislature" in the Constitution's elections clause encompassed citizen initiatives in states such as Arizona, where the state constitution explicitly includes the people's right to bypass the Legislature and make laws directly through initiatives.

This case validated the legality of redistricting commissions in effect across the country, all of which were created via ballot measure. Some were citizen initiatives, many were legislative referrals and a few were legislative referrals spurred by the prospect of a citizen initiative. Redistricting commissions boomed from 2018 to 2020, with voters approving their creation or amending existing commissions in Colorado, Michigan, Missouri, Ohio and Virginia. Commission measures have failed in a few states over the years, but voters have generally agreed when asked if they would like to transfer redistricting authority from the legislature to a commission.

Even in commission states, though, redistricting cannot escape partisan politics. Last year, several states unexpectedly drew new congressional maps. The White House also took a sudden interest in redistricting to bolster Republicans in this year's midterms. Texas kicked off this unusual mid-decade redistricting race in August, with others, including Missouri in September and North Carolina in October, following shortly after.

In response to Texas' redistricting, California and Virginia joined a pack of states looking to redraw congressional maps to boost Democrats. Both states had a problem, though: While the Texas, Missouri and North Carolina legislatures could pass new maps through the usual legislative process, the California and Virginia constitutions delegate redistricting authority to commissions.

Lawmakers in California and Virginia determined that they must obtain voter approval to reestablish legislative redistricting authority. Both legislatures referred measures to the ballot asking voters to amend the state constitutions to give the legislatures temporary authority to enact congressional maps, with that power reverting to the states' commissions in 2030.

California voters established their redistricting commission in 2010, and Virginians approved theirs in 2020, just before the redistricting cycle. In November last year, a large majority of Californians opted for a temporary return to legislatively controlled redistricting, and a bare majority of Virginians made the same choice yesterday. California voters removed legislators from redistricting almost entirely when they created their commission; Virginia voters opted for a commission made up of legislators and citizens.

Voters in both states took decisive steps away from legislative authority. Now they have turned back to their legislatures, albeit temporarily. Meanwhile, some Missourians are dissatisfied with their Legislature's 2025 redistricting, and legal battles are underway as opponents seek to certify a referendum to the November ballot that, if passed, would repeal the 2025 maps.

As the last few years-and legislative sessions-of the decade approach, legislators, voters and advocates will find it is time to decide what they want their 2030 redistricting cycle to look like. Since the 1960s, voters have almost always pulled redistricting authority away from their legislatures when given the choice. The passage of the recent California and Virginia measures marks the first time voters have taken authority away from redistricting commissions and returned it to the legislature.

Only time will tell who finds themselves vested with the power to redistrict next, and whether they will sit down at the mapmaking table in 2031 or even sooner.

Helen Brewer is a senior policy specialist in NCSL's Elections and Redistricting Program.