In 2000, a young Illinois state senator named Barack Obama ...



In Support of Redistricting Reform

Michael P. McDonald

Associate Professor, George Mason University

|[pic] |Dept of Public and International Affairs |

| |George Mason University |

| |4400 University Drive - 3F4 |

| |Fairfax, VA 22030-4444 |

| |e-mails: mmcdon@gmu.edu, mthornb1@gmu.edu |

In 2000, a young Illinois state senator named Barack Obama challenged congressman Bobby Rush in a Democratic primary. Obama received 30% of the vote in a four-way contest. Although victorious, Rep. Rush wished to make it difficult for his opponents to challenge him in future elections. In the subsequent congressional redistricting in 2001, Rush shifted his district’s boundary such that Obama’s residence was placed in Rep. Jesse Jackson Jr.’s district.[1] His pathway to the United States House of Representatives now blocked, Obama used state legislative redistricting to further his political goals. Due to a quirk in timing, Democrats won the right to redraw the Illinois state legislative districts after the congressional districts were drawn. Obama discovered during his primary contest that he was effective at creating biracial electoral coalitions. He redrew his African-American majority state senate district in central Chicago to include expensive high-rise apartments north of downtown along Lake Michigan’s shoreline. These affluent constituents would serve Obama well in his 2004 run for U.S. Senator and his later run for presidency by permitting him to craft a biracial campaign message and to establish a cadre of wealthy campaign contributors.

Not every politician is Barack Obama. The other two primary candidates in the 2000 Illinois 1st congressional district primary election – Donne Trotter and George Ruby – are not widely known even though they too were drawn out of Rep. Rush’s district. This is not an isolated incident, either. These sorts of shenanigans have a long history in American politics. The pejorative term ‘gerrymander’ derives from an oddly-shaped 1812 state legislative district proposed by Massachusetts Gov. Elbridge Gerry that a political cartoonist likened to a salamander, or a ‘Gerry-mander.’ James Madison, the chief architect of the U.S. Constitution, worried that, “Whenever the State Legislature had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed” (quoted in Farrand 1966: 240-1), which might logically apply to a state legislature drawing its districts. Madison himself was the target of a gerrymander engineered by Patrick Henry, who manipulated Virginia’s congressional district lines in an attempt to prevent Madison’s election to Congress (Weber 1998).

Virginia state Delegate Ken Plum – a longtime advocate for redistricting reform – stated what few elected officials will admit, “elected officials are where they are because they fight to get elected, it is in their nature and we should expect no less during redistricting.”[2] There are many ways incumbents use redistricting to their favor (Boatright 2004). Potential primary and general election challengers may be removed from an incumbent’s district. Constituents favorable to a candidate may be shifted into their district and those unfavorable shifted out. Apocryphal stories abound of representatives including specific industries within their districts, ones that they oversee by virtue of a committee assignment or that they receive campaign donations from.

A political party can also artfully draw district boundaries to better position themselves to control a state legislature or congressional delegation by arranging voters such that they receive a greater of seats than their share of votes (Tufte 1973). Opposition votes can be wasted by stacking their supporters into districts that they will win by an overwhelming margin or cracked across districts that the gerrymandering party will likely win by a comfortable margin (Cain 1984; Owen and Grofman 1988). Opposition incumbents often find themselves drawn into a district with another one of their party’s incumbents, forcing a primary match-up or one of the incumbents to retire or move into a new district.

The rallying cry for redistricting reformers is that voters should pick representatives, representatives should not pick voters. Indeed, limits on the obvious self-interest and the accompanying abuse of power during redistricting have been incrementally increasing over the past half-century. Redistricting authorities are constrained by federal courts, the federal government, and state constitutional amendments or legislative action. Extension of regulation of redistricting seems likely given these precedents. The question is, how far should redistricting reform go?

Regulating Redistricting

Ironically, an absence of redistricting ushered in greater regulation of the process. During the first half of the twentieth century, many state legislatures refused to conduct redistricting because doing so often shuffles constituents around, breaking the link between representatives and their more familiar constituents that help them get reelected. One such state was Tennessee, which had not redistricted in sixty years. As a result, district populations became unbalanced or ‘malapportioned’ between fast growing urban areas and slow growing rural areas. This suited a majority of legislators who represented rural districts. Ultimately, the U.S. Supreme Court took action in the landmark 1962 case Baker v Carr.[3] Here, the Court for the first time recognized that redistricting was ‘justicable’ and not a political issue outside the Court’s sphere and put the Tennessee legislature on notice to conduct a redistricting or else they would do so for them. Later in that decade, a series of court cases forced many state legislatures to conduct redistricting in a timely manner following the decennial census in order to equalize districts’ populations (Levitt and McDonald 2008).

Initially, scholars expected to see a significant reduction in partisan gerrymandering following the ‘one-man, one-vote’ rulings (e.g., Cox and Katz 2002; Musgrove 1977; White and Thomas 1964). Yet this goal was not realized, as Gelman and King (1994a: 553) note, “population equality guarantees almost no form of fairness beyond numerical equality of population.” The equal population standard permits too many different district configurations to meaningfully constrain gerrymandering. Moreover, as Niemi and Winsky (1992: 566) argue, practice makes perfect. Redistricting authorities learn how to gerrymander despite legal constraints when required repeatedly to draw districts every decade. Indeed, some of the most egregious abuses, such as carving out the street block where a potential challenger’s home is located, are enabled by perfectly equalizing districts’ populations which requires drawing district lines at such a detailed level of geography.

A redistricting regulation that has had considerably more success in constraining how lines are drawn is the Voting Rights Act of 1965 and its many extensions. Similar to how political parties can waste votes of the opposition party, whites discovered redistricting could be used to deny minorities an opportunity to elect a candidate of their choice by arranging districts to dilute minorities’ voting strength (Brace, et al 1988). If a state or locality violates Sections Two or Five of the Voting Rights Act, the Department of Justice and the federal courts are granted oversight authority to force a jurisdiction to draw an acceptable map. If such a map is not forthcoming, the courts are empowered to draw a map of their own.

Scholars generally agree that districts can be drawn to affect minority representation. The Voting Rights Act has been credited with the election of thousands of minorities to federal, state, and local offices since its inception (Davidson and Grofman 1994). Scholars have since shifted their interest to the tension between descriptive representation – having someone like you represent you – and substantive representation – having someone who supports your policies represent you. Scholars (e.g., Cameron, Epstein, and O'Halloran 1996; Lublin 1999) now debate whether minority interests are best served by maximizing their descriptive representation.

In 1986, the U.S. Supreme Court ruled that partisan gerrymandering is justicable. Although maps have been challenged on partisan gerrymandering grounds, the court has only overturned one map.[4] The thorny issue is that the swing justice on many of these 5-4 decisions, Justice Kennedy, has not found a standard to his liking that identifies when a partisan gerrymander occurs, even though scholars have offered many standards (e.g., Kousser 1996; Gelman and King 1994; Grofman and King 2007).

The irony behind these proposed partisan gerrymandering standards is that scholars are conflicted as to whether or not parties are actually successful at executing partisan gerrymanders. Some scholars find political parties secure electoral advantage when they control redistricting (Abramowitz 1983; Cain 1984; Gelman and King 1994b; King 1989; Niemi and Winsky 1992; Hirsch 2003). Others find political parties realized no advantage following the 1971 redistricting (Squire 1985), were worse off following 1981 (Campagna and Grofman 1988), and experienced no gains following 1991 (Swain, Borrelli, and Reed 1998). Parties’ gains appear to dissipate after two to three election cycles (Basehart and Comer 1991; Niemi and Winsky 1992). Some researchers have concluded that increased incumbency advantage is the source of inconclusive findings, since incumbents will be able to withstand all but the most dramatic changes to their districts (Born 1985; Swain, Borrelli, and Reed 1998).

These conflicting findings may be a result of an inability of being able to distinguish intent from effect. Representative-constituent links are often disturbed when significant changes occur to districts in order to equalize their population (Ansolabehere, Snyder and Stewart 2000; Desposato and Petrocik 2000). Strategic challengers tend to emerge in the election following a redistricting to contest temporarily weakened incumbents (Cox and Katx 2003; Heatherington, Larson and Globetti 2003). Grofman and Jacobson (2003) note that electoral competition generally wanes in-between redistricting as incumbents in unfriendly districts are defeated and others renew their home style with their constituents. Further complicating the picture is that constituents are not static, either. The underlying partisanship of districts gradually tends to change over time, too (Abramowitz, Alexander, and Gunning 2006; McDonald 2006), further altering the effects of redistricting.

Reforming Redistricting

The history of regulating redistricting reveals that redistricting authorities cannot simply draw whatever districts they prefer. The federal constitution and federal law provides some intrusive oversight of redistricting. State courts, too, have become increasingly active in overturning maps that violate state constitutional or statutory requirements (Cain, Mac Donald, McDonald 2006). There are instances where federal and state courts have drawn districts. The debate over reforming redistricting is thus not whether state legislatures should have sole redistricting authority. The question is rather how much discretion state legislatures should be given during redistricting and if they should have any authority whatsoever.

How states and localities draw districts can be found in state constitutions and statutes. The rules and procedures vary greatly among the states (McDonald 2004; Levitt 2008). Most states use the regular legislative process to draw their congressional and state legislative districts. Others use a commission as the sole authority, an advisor to the legislature, or as a place of last resort if the regular legislative process fails to produce a map. Some states impose criteria in addition to the federal requirements, such as drawing compact districts, drawing districts blind to partisan or individual candidate interests, fostering district competition, respecting existing political and geographic boundaries, and respecting communities of interest, among other criteria.

The United States is exceptional in that it is the only country in the world where politicians have a role in redistricting. Every other advanced democracy that must draw districts uses a non-partisan bureaucratic commission (Handley 2008). There are two states that use a commission system that come close to how other countries redistrict. Voters adopted Arizona’s redistricting commission and 2000 and California’s in 2008 through their respective states’ ballot initiative process. Both states select members to the redistricting commission through a complicated vetting process that attempts to weed out political insiders. Still, even in these states, legislative leaders have some input. They choose who may serve on the commission from the pool of vetted candidates. Iowa’s ‘commission’ is also often heralded as following the bureaucratic model used in other countries because the state’s commission is non-partisan support staff known as the Legislative Service Agency (LSA). However, the LSA only serves in an advisory capacity to the legislature, who has the final redistricting authority and may reject the LSA’s proposed maps. Commissions used in other states are sometimes called “independent” from the legislature, too, (e.g., Abramowitz, Alexander, and Gunning 2006) but they are not truly so since elected officials or their hand-picked lieutenants often serve on these commissions (McDonald 2004).

It is too soon to tell if these commissions produce maps that are substantively different from those produced by a state legislature since, as of this writing, only Arizona’s commission has drawn maps.[5] There appears to be an upper limit on the number of states that will adopt redistricting reform since states seldom adopt this reform through means other than a ballot initiative. There are some states where redistricting may yet go to voters either for a first time or to amend an existing commission, so it is likely that redistricting authority will continue to be eroded from some state legislatures.

What shape might redistricting reform take? Good government groups such as The League of Women Voters and Common Cause generally advocate for redistricting commissions following a set of four guiding principles:

1. Independence: Districts should be drawn by commissioners who are as removed from political influence as possible. This may be achieved through a vetting process that removes elected officials, lobbyists, legislative employees, immediate family members, and anyone else who may have a vested interest in district lines. Commissioners may not run for offices in the districts that they draw.

2. Criteria: The commission should be given a set of specific criteria to guide the drawing of districts. In the extreme, these criteria are envisioned to be mechanical in nature, thereby giving the commission very little discretion as to how districts are drawn.

3. Public Input: The commission should accept input and solicit maps from the public. When combined with a strict set of criteria, public input can lead to a form of competition whereby the map that scores best on the criteria will be adopted by the commission.

4. Transparency: The commission should operate in meetings open to the public. This avoids backroom deals and maps that are thrust upon the public at the last minute without public input. If subsequent court action is necessary, commission deliberations can provide clues as to the intent behind a map.

Why not use a map with districts that look the most like squares or some other compact shape? Better yet, why not program a computer draw the districts with this goal in mind? As appealing as these mechanical approaches may sound, there are surprisingly many difficulties in implementing them.

A primary problem is that people do not align themselves on a regular grid. There are densely populated urban areas and sparsely populated rural areas with suburban areas in-between. Since districts must be of equal population, their geographic sizes must be unequal. Fitting districts together to minimize a simple goal like district compactness is an extremely complicated mathematical partitioning problem that a computer is not guaranteed to find the optimal solution for before the sun explodes (Altman, Mac Donald and McDonald 2005). Adding more criteria, such as respecting existing political boundaries, almost always just makes things more complicated and it is not clear how to balance between goals when they are in conflict.

Another problem is that the criteria may have particular political biases built in them. For example, if Democrats are concentrated in urban areas of a state and are intermingled with Republicans in rural areas then a redistricting plan that emphases respect for existing political boundaries such as cities and counties will result in a Republican gerrymander. Democrats living in urban areas will be inefficiently concentrated into districts they win overwhelmingly and distributed across rural districts that they have little chance of winning. Parker (1990) calls this effect “second order bias,” whereby an ostensibly neutral criterion may have a predictable political effect.

Simulated maps drawn under various criteria suggest that Democrats are inefficiently concentrated into urban areas in California (Johnson, Lampe, Levitt, and Lee 2005; Cain, Mac Donald, and Hui 2006) and in five Midwestern states (McDonald 2009). For the five Midwestern states there are exceptions to the tendency for Democrats to be inefficiently distributed, depending on the state, criteria, and the type of district. For example, when drawing Minnesota’s eight congressional districts in the 2000’s decade, Twin Cities’ Democrats can easily be unpacked. The same is not true when redistricting the state’s 134 lower legislative districts; these districts are simply too small to bridge urban and rural areas like these larger congressional districts. However, these lower chamber districts are small enough to encompass the state’s Outstate (as the areas outlying the Twin Cities are called) mid-sized cities, thereby partially offsetting the inefficient concentration of Democrats in the Twin Cities area if existing political boundaries are followed. Interestingly, the same is not true for the state’s larger 67 state Senate districts. These districts tend to be much larger than the state’s mid-sized Outstate cities and thus these Outstate Senate districts tend to lean towards the Republicans. This Minnesota example illustrates that one size does not fit all when contemplating redistricting criteria. If criteria are to be adopted, care should be given how they may produce otherwise unanticipated second-order bias.

Another approach to solve distributional inefficiencies that might result in second-order bias is to balance what Cox (2004: 756) calls “process-based regulations” such as compactness and respect for existing political boundaries with “outcome-based regulations” such as political fairness or competition. Indeed, redistricting currently occurs within a dual federal regime since the process-based regulation of equal population is balanced against the outcome-based regulation of the Voting Rights Act and a (albeit minimal) partisan gerrymander standard.

A problem is that once these criteria are piled upon one another, it is impossible to optimize all criteria simultaneously. A commission must be given discretion to balance competing goals, and there is the rub. Give a commission too much discretion and any map may be justified. Give it too little, and second order bias may result.

The redistricting commission solution to this dilemma returns us to why commissions are the preferred redistricting reform. If reasonably neutral actors can be selected to serve on commissions to draw districts, their deliberations are observed in public meetings, and their actions are monitored by the courts if necessary, then it should be possible to draw districts reasonably removed from the excesses observed when representatives draw their own districts. It may further be important to encourage the public to submit maps so that a wide range of alternative maps are available (Hirsch 2009) and to ensure the commission does not (intentionally) fail to search for a better map.

Handley (2008) notes that the United States is exceptional in that it is the only advanced democracy where legislators draw their own districts. She further notes it is exceptional in another regard. Redistricting is litigated far more in the United States than in any other country. Following the lead of the rest of the world may have other benefits. Less money may be wasted on litigation as political actors stop seeking to gain political benefit through gerrymandering or trying to substitute a gerrymander with one of their own. Citizens may have more confidence and trust in a redistricting system when citizen input is actively solicited and actions are taken in public for all to see and understand. Experimentation with redistricting reform is just beginning in earnest, now that Arizona and California have adopted processes that promise true ‘independence’ from the legislature. The genius of the American federal system is that it permits such experimentation at the state level. Hopefully, this promising experiment will continue and the results will be monitored to see if this is an experiment worth continuing.

References

Abramowitz, Alan. “Partisan Redistricting and the 1982 Congressional Elections.” The Journal of Politics, Vol. 45, No. 3. (Aug., 1983), pp. 767-770.

Abramowitz, Alan, Brad Alexander, and Matthew Gunning. 2006. “Don’t Blame Redistricting for Uncompetitive Elections.” PS: Political Science and Politics 39(1): 87-90.

Ansolabehere, Stephen, James M Snyder Jr., and Charles Stewart III. 2000. “Old Voters, New Voters, and the Personal Vote: Using Redistricting to Measure the Incumbency Advantage.” American Journal of Political Science 44(1): 17-34.

Altman, Micah, Karin Mac Donald, and Michael P. McDonald. 2005. “Pushbutton Gerrymanders? How Computing Has Changed Redistricting.” in Party Lines: Competition, Partisanship and Congressional Redistricting, Bruce Cain and Thomas Mann, eds. Washington, DC: Brookings Press.

Basehart, Harry and John Comer. “Partisan and Incumbent Effects in State Legislative Redistricting.” Legislative Studies Quarterly 16(1): 65-79.

Boatright, Robert. 2004. “Static Ambition in a Changing World: Legislators' Preparations for and Responses to Redistricting.” State Politics and Policy Quarterly 4(4): 436–454.

Born, Richard. “Partisan Intentions and Election Day Realities in the Congressional Redistricting Process.” The American Political Science Review 79(2): pp. 305-319.

Brace, Kimball, Bernard Grofman, Lisa Handley, and Richard Niemi. 1988. “Minority Voting Equality: The 65 Percent Rule in Theory and Practice.” Law and Policy 10(1): 43-62.

Cain, Bruce E. 1984. The Reapportionment Puzzle. Berkeley, CA: University of California Press.

Cain, Bruce E., Karin Mac Donald, Iris Hui. 2006. “Competition and Redistricting in California: Lesson for Reform.” Berkeley, CA: Institute for Governmental Studies.

Cain, Bruce E., Karin Mac Donald, and Michael P. McDonald. 2005. “From Equality to Fairness: The Path of Political Reform Since Baker v Carr.” in Party Lines: Competition, Partisanship and Congressional Redistricting, Bruce Cain and Thomas Mann, eds. Washington, DC: Brookings Press.

Campagna, Janet and Bernard Grofman. “Party Control and Partisan Bias in 1980s Congressional Redistricting.” The Journal of Politics 52(4): 1242-57.

Cox, Adam B. 2004. “Partisan Fairness and Redistricting Politics.” New York University Law Review 70: 751–802.

Davidson, Chandler and Bernard Grofman, eds. 1994. Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965-1990. Princeton, NJ: Princeton University Press.

Desposato, Scott W. and John R Petrocik. “The Variable incumbency Advantage: New Voters, Redistricting, and the Personal Vote.” American Journal of Political Science 47(1): 18-33.

Farrand, Max. 1966. The Records of the Federal Convention of 1817. New Haven, CT: Yale University Press.

Gelman, Andrew and Gary King. 1994a. “Enhancing Democracy through Legislative Redistricting.” The American Political Science Review 88: 541–59.

Gelman, Andrew and Gary King. 1994b. “A Unified Method of Evaluating Electoral Systems and Redistricting Plans.” American Journal of Political Science 38(2): 514-54.

Grofman, Bernard and Gary Jacobson. 2003. Vieth v. Jubelirer. Brief as Amici Curiae in Support of Neither Party, No. 02-1580.

Grofman, Bernard and Gary King. “The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry.” Election Law Journal Vol. 6, No: 2-35.

Handley, Lisa. 2008. “A Comparative Survey of Structures and Criteria for Boundary Delimitation” in Bernard Grofman and Lisa Handley, eds. Redistricting in Comparative Perspective. New York: Oxford University Press.

Hetherington, Marc J., Bruce A. Larson, and Suzanne Globetti. 2003. “The Redistricting Cycle and Strategic Candidate Decisions in U.S. House Races.” Journal of Politics 65(4):1221-35.

Hirsch, Sam. 2003. “The United States House of Unrepresentatives: What Went Wrong in the Latest Round of Congressional Redistricting.” Election Law Journal 2(2): 179-216.

Johnson, Douglas, Elise Lampe, Justin Levitt, and Andrew Lee. 2005. “Restoring the Competitive Edge.” Claremont McKenna College, CA: The Rose Institute of State and Local Government.

Keyssar, Alexander. 2000. The Right to Vote: The Contested History of Democracy in the United States. New York: Basic Books.

King, Gary. “Representation through Legislative Redistricting: A Stochastic Model.” American Journal of Political Science Vol. 33(4): 787-824.

Kousser, J. Morgan. 1996. “Estimating the Partisan Consequences of Redistricting Plans-Simply.” Legislative Studies Quarterly 21(4): 521-41.

Levitt, Justin. 2008. A Citizen’s Guide to Redistricting. New York: Brennan Center for Justice at New York University School of Law.

Levitt, Justin and Michael P. McDonald. 2007. "Taking the 'Re' out of Redistricting: State Constitutional Provisions on Redistricting Timing." Georgetown Law Review 95(4): 1247-86.

Mayhew, David R. 1974. Congress: The Electoral Connection. New Haven, CT: Yale University Press.

McDonald, Michael P. 2004. “A Comparative Analysis of U.S. State Redistricting Institutions.” State Politics and Policy Quarterly 4(4): 371-396.

McDonald, Michael P. 2006. “Drawing the Line on District Competition.” PS: Political Science and Politics 39(1): 91-94.

Musgrove, Philip. 1977. The General Theory of Gerrymandering. Beverly Hills, CA: Sage Publications.

Niemi, Richard G., and Laura R. Winsky. 1992. “The Persistence of Partisan Redistricting Effects in Congressional Elections in the 1970s and 1980s.” The Journal of Politics 54: 565-72.

Owen, Guillermo and Bernard N. Grofman. 1988. “Optimal Partisan Gerrymandering.” Political Geography Quarterly 7(1): 5–22.

Parker, Frank R. 1990. Black Votes Count. Chapel Hill, NC: University of North Carolina Press.

Scalia, Anthony. 1997. A Matter of Interpretation: Federal Courts and the Law.

Princeton, NJ: Princeton University Press.

Squire, Peverill. “Results of Partisan Redistricting in Seven U. S. States during the 1970s.” Legislative Studies Quarterly 10(2): 259-266.

Swain, John W., Stephen A Borrelli, and Brian C Reed. “Partisan Consequences of the Post-1990 Redistricting for the U.S. House of Representatives.” Political Research Quarterly 51(4): 945-67.

Tufte, Edward R. 1973. “The Relationship between Seats and Votes in Two-Party Systems.” The American Political Science Review 67(2): 540-54.

Weber, Paul J. 1998. “Madison’s Opposition to a Second Convention.” Polity 20: 498.

White, John P. and Norman C. Thomas. 1964. “Urban and Rural Representation and State Legislative Apportionment.” The Western Political Quarterly 17: 724–41.

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[1] John Mercurio. “Between the Lines.” Roll Call, July 2, 2001.

[2] Comments to the Fairfax County League of Women Voters, January 24, 2009.

[3] See Baker v. Carr 369 U.S. 186 (1962)

[4] See Davis v. Bandemer 478 U.S. 109 (1986). Only the adoption of at-large judicial districts in North Carolina have been overturned under the Bandemer standard, see Republican Party of North Carolina v. Martin 980 F.2d 943 (4th Cir. 1992).

[5] The author served as a consultant to the Arizona commission during the post-2000 round of redistricting. For an overview of Arizona’s experience see McDonald (2006).

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