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Can Redistricting Ever Be Fair?

Several states are setting up independent commissions in the hope of removing bias from the line-drawing process.

J. Bruce Jones/Flickr CC

Redistricting always creates drama. Every 10 years some number of legislators and congressmen find the new redistricting map draws them out of a job or puts them in a much more precarious position. One party or the other finds itself handicapped by the shape of the new districts. Naturally, politicians raise a fuss. “There are always going to be sore losers with redistricting,” says Justin Levitt, a professor at Loyola Law School in Los Angeles. “Redistricting is, in many ways, the thing that legislators take most personally.”

When given the chance, legislators try to spare their own feelings -- to protect their bailiwicks. The ability of politicians to trade favors and votes is never more in evidence than during redistricting season. Leaders of the two parties can enter into a nonaggression pact, protecting as many of the incumbents on both sides as possible. That happened 10 years ago, when the brother of a Democratic congressman in California charged incumbents $20,000 apiece for his services in drawing districts that made re-election an entirely safe bet. The result was that when the new maps were put to the test in 2002, not a single seat changed party hands in the state Senate, Assembly or congressional delegation.

All told, over the course of 765 congressional and legislative elections held in the state during the past decade, only five seats ever changed party hands. “California’s whole system of redistricting had always been at one end of the spectrum,” says Tim Storey, a redistricting expert with the National Conference of State Legislatures. “It had clearly been a state that had given full protection to incumbents. They set themselves up for major reform.”

California was not the only state at the far end of the spectrum. Florida had a problem as well. Statewide elections are generally competitive, including presidential contests, but Florida had been sliced into districts that were so safe for one party or the other that few candidates bothered taking on incumbents. In 2004, only a handful of state legislators faced major party opposition at all. Not a single incumbent was defeated. Only six challengers finished within 10 points of the incumbent.

Across the country, several states have dabbled with ways to bring less bias to redistricting -- by setting up panels to provide a first draft or by asking for citizen input. The issue of redistricting and how to do it fairly is a never-ending one. But in Florida and California, the sense that politicians were able to choose their own sets of voters, rather than the other way around, convinced many people in those states that the redistricting laws had to change.

Last year, Floridians approved a law meant to bar legislators from drawing maps with the intention of favoring one party or the other. In true bipartisan fashion, the law was challenged by two members of Congress, one Democrat and one Republican, but in September a federal court upheld it. It’s not clear how a mandate for not just compact but also politically competitive maps will be carried out in practice: The Florida Legislature has yet to release its product.

In California, voters in 2008 established a 14-member commission to draw legislative maps. Two years later, it was granted the additional responsibility of creating congressional districts. But that responsibility came with specific orders. The commission was told to ignore incumbent protection -- and even legislators’ home addresses -- while creating districts that are compact and keep intact when possible what are known as “communities of interest” and political jurisdictions such as whole cities.

Although outside observers say the commission did its job fairly well, especially given the convoluted rules involved in setting up the commission in a short amount of time, not everyone is happy. In fact, Republicans are livid. The GOP is convinced the new map puts them at a disadvantage both for U.S. House seats and, in particular, in the state Senate. Hispanics don’t like the maps much either. Groups such as the Mexican American Legal Defense and Educational Fund are eyeing the Voting Rights Act and considering suing over the issue of inadequate Latino representation.

But it’s Republicans who are making the loudest noise. Democrats dominate California politics, and Republicans warn that the Senate map will shut them out of power entirely. Tax increases require a two-thirds majority in both chambers in California. The GOP has only two seats to spare in the Senate -- both of which Republicans believe they will lose as a result of redrawn districts. “It pretty much guarantees that Republicans will lose the one-third voting bloc when it comes to tax increases and fee increases,” says Mimi Walters, a Republican who represents parts of Orange and San Diego counties in the state Senate. “We will be in a super-minority position if in fact we don’t redraw the lines.”

Walters is spending a good deal of her time these days traveling up and down the state in search of funds to help finance a ballot measure to toss out the commission’s map and have courts appoint a special master to do the job over. The California Republican Party is sponsoring the effort, which is allowed by the initiative that created the commission.

California Republicans are also going down a more tried and true avenue of complaint -- namely, by filing a lawsuit. The commission violated its own rules, they say, with indications of partisan bias among some of the commissioners and the consulting firm it hired to do the actual line drawing. The commission also failed to keep some communities of interest intact, says Tom Del Beccaro, who chairs the California GOP. “They extinguished Republican seats not based on demographics or the guidelines, but from a desire to create a certain outcome,” he says. “They didn’t follow the rules and the process was corrupted.”

California is not the only state besieged by such complaints. In Arizona, which is now in the midst of its second redistricting cycle using a commission created by ballot measure, Republicans argue that the supposedly independent nature of the commission has been compromised by partisan leanings. Its mapmaking consultant had ties to President Obama’s 2008 campaign, while the husband of its chair, who is a registered independent, worked for a failed Democratic legislative candidate. “To me, this commission and its work is tainted,” state Sen. Al Melvin, a Tucson Republican, complained at a hearing. Lawsuits seem likely there also.

Is it possible to delete partisanship from the redistricting process? The designers of California’s commission tried hard to make it happen. Commissioners and their immediate family members can’t have run as a candidate within the past 10 years or served on party committees. They’re also not supposed to have worked as lobbyists or given sizable campaign contributions. Thousands of applicants were narrowed down by the state auditor to a pool of 60: 20 Republicans, 20 Democrats and 20 independents. Legislative leaders from both parties were able to strike a few individuals each from that list, with the remainder of the names going into a bingo-style spinner. Eight were picked out randomly. They, in turn, chose six more of their colleagues, resulting in a commission made up of five Democrats, five Republicans and four who were neither.

Nevertheless, Republican complaints now turn on the notion that Democratic operatives managed to sneak onto the commission and trick most of the GOP members for their own purposes. “The idea of the commission is good,” says Del Beccaro. “But in practice sometimes it gets abused.”

Not everyone sees it that way. For one thing, the maps won near-unanimous support from commissioners, with the exception of one Republican who opposed all of them and one other who voted against the new congressional map. Vincent Barabba, the Republican who chaired the commission, says there was “no basis” for accusations that decisions were made for partisan reasons. As Levitt, the Loyola law professor, sees it, all the evidence suggests the opposite. “If the consultants in California were perceived to be Democratic-leaning,” he says, “I don’t believe the Republican commissioners would be repeatedly hoodwinked in a way that would be possible to steamroll them.”

The California commission’s work offers more proof, if any were necessary, that it’s impossible to remove politics from redistricting. “Whether you think they did a good job or not depends on whether your ox was gored, but that’s true of redistricting in general,” says Nathaniel Persily, a redistricting consultant at Columbia Law School.

Still, Democrats say that the GOP complaints amount to nothing more than sour grapes. The state is firmly Democratic, providing one of the nation’s few bright spots for the party after last year’s Republican sweep. It’s difficult to imagine that Republicans would have fared much better under the old rules, with a process controlled by a solidly Democratic Legislature and governor. Del Beccaro dismisses that argument, saying that it’s not important to ask whether Republicans “could have fared worse under a more flawed method,” but to look at the abuses he says were perpetrated by the commission.

It’s certainly the case that the same sort of charges Del Beccaro has lodged -- that particular candidates were favored in the drawing of districts, that there were conflicts of interest among those doing the drawing, and that counties and other communities were cut up and glued with other areas in odd pairings -- have also been raised repeatedly when legislators themselves draw the maps. Similar complaints -- and worse -- have been brought up in states where one party controls the whole process this cycle, such as the Democrats in Illinois and Republicans in Texas.

Already, legislative action has been blocked and the courts have taken over the job in Colorado and Minnesota. “The districts are plainly and in some cases baldly and expressly designed to help particular candidates and hurt others,” Levitt says. “They’re drawn not only permitting self-interest but in some respects almost entirely because of self-interest.”

It’s hard to imagine that California’s commission -- or anyone else -- could have drawn districts there that didn’t, for the most part, favor one party or the other. Iowa has long been held up as the model by people who have sought to overhaul the redistricting process. Its nonpartisan legislative staff is charged with drawing lines that don’t take incumbent addresses into consideration. Over the years, its maps have put the Legislature in play and left Iowa with a high number of competitive congressional races, considering the modest size of the state’s delegation.

But Iowa is Iowa. It’s square and homogeneous and no matter how you slice it, you have Iowa. California is different, with the greatest amount of racial diversity of any state and a topography of dramatic variability, from congested coastal cities to large stretches of unpopulated desert, major agricultural areas and mountains.

What might be called its natural political map, moreover, makes it difficult to create many competitive seats. The population centers that hug the coast are among the most Democratic parts of the entire country, while Republicans tend to be found in more sparsely populated counties inland. In order to make Nancy Pelosi’s San Francisco congressional district competitive, Persily jokes, you might have to stretch it out all the way to Nevada. Or possibly Utah. “The coast is so Democratic and the interior so Republican,” he says, “my feeling is that in California, if you’re not going to pay attention to incumbency and you start drawing districts from north to south, there’s only so much partisan impact redistricting is going to have.”

A similar story can be told in most parts of the country. Probably two-thirds of the congressional districts nationwide are going to be safe for one party or the other, regardless of who draws the line. Geographic polarization is happening all over the country, with Democrats and Republicans living in separate areas -- not so much because they check voter precinct data when they’re deciding where to live, but because they pick up on cultural clues that suggest areas where they’d be most comfortable. Political affiliation seems to follow cultural preferences. “People appear to be moving to places where they find those who look, think, act -- and vote -- like they do,” says Bill Bishop, author of The Big Sort, a book tracing this phenomenon. “Over time, this makes communities more Republican or Democratic, and this creates increasing polarization over time.”

If Bishop is right -- and most political scientists seem to agree with him -- it’s going to be impossible to draw most congressional and legislative districts in ways that are competitive. Redistricting exacerbates geographical polarization, but it doesn’t create it.

Redistricting is, and always has been, used to gain maximum advantage from the demographics at hand. If only one-third of congressional districts could be competitive under optimum circumstances, perhaps less than 15 percent could be counted on to be consistently competitive in recent years, despite the large amount of partisan turnover lately. (The U.S. House changed partisan hands twice in the last three elections.)

There aren’t going to be many more states where redistricting is taken out of the hands of legislators entirely. Given legislative self-interest, moving to an independent commission system pretty much has to be done by ballot measure, and there aren’t that many initiative states to begin with. Selling voters on the need to change something relatively arcane like redistricting has been difficult for so-called reformers. They couldn’t make the case in Ohio, and California required repeated tries. The current controversies in California and Arizona, whether overblown or not, won’t make it any easier. It’s worth remembering that the ballot initiatives in those two states were pushed primarily by political parties who ended up unhappy with the commissions’ final products.

But independent maps are being drawn in an increasing number of states. States such as Virginia are setting up advisory commissions that lack real authority but nonetheless produce maps that can serve as guidelines. Minnesota’s Supreme Court, which took the reins of the redistricting process this year, said recently that it would take into account maps drawn by the public as part of its deliberations.

It might be impossible to draw political maps that don’t help one party at the expense of the other. Something other than the usual goal of ensuring job security for incumbents might become paramount, at least in some places. “Someone from the public can draw a map that can illuminate to the courts what opportunities there are for improving maps,” says Michael McDonald, a political scientist at George Mason University, who has promoted public participation in the redistricting process. “It could mean greater restrictions on gerrymandering, especially in states with constitutional requirements that must be met. Having a map that demonstrates a better way to achieve those requirements puts pressure on the legislature to conform to those requirements.”

Caroline Cournoyer is GOVERNING's senior web editor.
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