Drawing the line on gerrymandering

Thoko Moyo: Hello and welcome to the Harvard Kennedy School PolicyCast. I'm your host Thoko Moyo.

In his 1796 farewell address, President George Washington warned against what he called the continual mischief of political parties. Then just 16 years later, the Massachusetts governor Elbridge Gerry, underscored Washington's point by approving a partisan election map with one district so monstrously misshaping, that critics compared it to a mythical beast. They dubbed it “the Gerrymander,” and the name stuck. Since then the partisan mischief that President Washington warned about has cropped up more and more in the process of drawing legislative districts. Recent court fights suggest we still haven't got redistricting right two centuries later.

To discuss this, I'm joined by Harvard Kennedy School Assistant Professor Of Public Policy Benjamin Schneer. His research explores political representation, elections, and forces that distort the ability of citizens to communicate their desires to government. Professor Schneer says redistricting is both fundamentally political and extremely complex—but that doesn't mean it can't be made better.

Welcome to PolicyCast. So let's start at the beginning. What is redistricting?

Benjamin Schneer: Redistricting is the process of carving up a jurisdiction most often a state into districts for elected officials. So that could take place for congressional districts in a state, it could also take place for legislative districts, to districts that matter for elected officials in the state legislatures.

Thoko Moyo: What's the timing of redistricting? When does it happen and how often?

Benjamin Schneer: Generally speaking, in most states, a redistricting would happen every 10 years after the census. So it generally happened in 2010, 2011 after the census in the last census cycle and it's coming up soon in the future. So after the 2020 census, states will be going through the redistricting process in 2020, 2021.

Thoko Moyo: I guess it makes sense to do it after the census because the idea is to make sure that the districts align with any changes in population and sort of reflect what's happening in the state.

Benjamin Schneer: Exactly. So there are very few federal laws or guidelines for redistricting. But one of the ones that is super important is equal population for congressional districts. So for congressional districts within a state, you have to have equal population down to the person. To do that, you need a census and you need a good count of the people in the state. Another interesting thing about the census is, when they're counting people, they're not just counting citizens, they're counting all people who reside in that state.

Thoko Moyo: Okay. So even people who would not be able to vote in the actual elections are considered in the apportioning of the districts.

Benjamin Schneer: Yes, exactly.

Thoko Moyo: Interesting. Okay. Who actually does this? Who does the redistricting?

Benjamin Schneer: Redistricting in the majority of states is performed by state legislatures. The interesting thing about that is that state legislatures are drawing districts which members of the state legislature will then run for reelection in. So the criticism of that is that it's a case of candidates picking their voters rather than the voters picking the candidate.

Thoko Moyo: Let's just park that. I want to come back to that because there’s a very specific sort of term for it and concerns about it. But I just want to make sure that I get all the elements of what redistricting is. You mentioned that there are very specific laws and one of them is that it has to be equal population or these very close to the ideal population or the distance. Are there any other sort of conditions or laws that are governing redistricting where other things absolutely have to happen when you redistrict?

Benjamin Schneer: Well, so the other key element is that the legislature is, or whoever is drawing the districts, not discriminating based on race, or color, or language. Some of that is based on Section 2 of the Voting Rights Act.

Thoko Moyo: But how would that discrimination occur? I mean, what do you mean discriminate? You're drawing borders for districts. How could discrimination occur?

Benjamin Schneer: Discrimination could occur by drawing districts such that population groups, like minority population groups for example, would not be able to elect the candidates that they might prefer. So if you were in a state where a significant percentage of the population was say, Hispanic or African-American and they were drawn into districts such that they couldn't form a cohesive sort of voting block, if they so chose to actually elect a candidate of their choice, then that could be seen as discrimination.

Thoko Moyo: Oh, so almost like not having them concentrated but you so spread them across the state, and so when you draw the boundaries there's not enough of a majority-minority for them to actually elect someone that represents their... Is that ...

Benjamin Schneer: Sure. Exactly. That is what would be known as a racial gerrymander—and specifically cracking—is a form of racial gerrymandering. Where you are taking a given population group and spreading them out among a bunch of different districts so as to dilute their voting power. Yeah.

Thoko Moyo: So there's actually a provision in the law that you cannot do that?

Benjamin Schneer: It's a little bit complicated. So the Voting Rights Act, previously there was Section 2 and Section 5 of the Voting Rights Act, which were most relevant for this. Section 5 of the Voting Rights Act said that a given set of states, mostly states in the South but also including Arizona and a few other states, that, because those states had histories of potentially disenfranchising minority populations through things like poll taxes or other others, literacy tests, that any change to the electoral rules had to actually be pre-cleared by, for example, the Department of Justice.

So one such change would be changes in the electoral district lines. Previously at least, the states had to essentially proactively show that those changes were not making it more difficult for minority groups in their state to elect their candidates of choice. So one way to do that, that was quite common was through a majority-minority districts where there was specifically, there were created districts where a given minority group in the state sort of had formed a coherent cohesive group and made up enough population share of the district so that they would have a good shot at electing a candidate that they preferred.

Thoko Moyo: Okay. Any other specifics that you have to adhere to when you're redistricting? Any other sort of rules?

Benjamin Schneer: Well, so the two things that we mentioned, equal population and not discriminating on the basis of race or language group are the sort of two hard and fast rules. Many states in their state constitutions have other guidelines as well. These include things like compactness, which has to do with the shape of the district. The most compact shape would be a circle. As it gets stretched out and twists and turns in many different ways, it would be a shape, or in this case a district would become increasingly less compact.

Thoko Moyo: Okay. So for measuring distance from the center type of thing?

Benjamin Schneer: Yes, exactly.

Thoko Moyo: I can see that.

Benjamin Schneer: So that's one. Another is contiguity, meaning that basically, all parts of the district are connected to each other. So you can't have a district that starts in one place then ends, and then start somewhere else that is unconnected to the rest of the district. With the exception of, if there're natural geographic boundaries that...

Thoko Moyo: If there's a river or something?

Benjamin Schneer: Yeah, exactly. Or an island or something like that. So compactness, contiguity, and respecting communities of interest. That could mean a bunch of different things, but for example, a historic neighborhood or any sort of community group. It's kind of arbitrary exactly what that means. It's open to interpretation.

Thoko Moyo: Later on we'll talk about that when we get into gerrymandering. I think there's been some examples of that actually in play where you've actually made an effort. There's been an effort to try and respect the sanctity of the sort of different communities of interest and we'll come to that. I guess the other thing that comes up recently when I was doing the reading, preparing for this conversation is, terms like fairness and competitiveness. I mean that's kind of the idea behind the rules governing how redistricting happens. Can you define them for me in this context?

Benjamin Schneer: Sure, absolutely. I think competitiveness means, essentially what it sounds like, which is how competitive is an electoral contest in terms of, do both candidates have a shot at winning the race? So that's a straightforward definition. But how you actually...

Thoko Moyo: But it would be competitive regardless of the boundaries. I mean if you're up against someone you are competing. I mean, I feel like we should maybe expand that a little more.

Benjamin Schneer: Sure, absolutely. The way you would determine actually if a race is going to be close or not, is based on who lives in the district. For example, you could look at things like the party registration of the voters in the district, you could look at how elections have gone in the same geographic areas in past years. For example, if there was a district that voted for Hillary Clinton in the last presidential election, 80% to 20% for president Donald Trump, then that is informative about the preferences of the people in that district in future elections as well. So competitiveness is really based on the characteristics and the past choices of the people who reside in that district. That's competitiveness.

Fairness is, I think, distinct from competitiveness. What most people mean when they're talking about fairness in particularly partisan fairness in this context, is whether the parties are being treated equally in how the district map has been drawn. There's a couple elements of that to unpack, there's a few things that almost anyone can agree when you're evaluating an electoral map at the level of a state that seem fair. For example, if a party literally gets no votes whatsoever, then they probably should also not win any seats in, let's say we're talking about this in the context of the state legislature.

If they get all of the votes in the state, they should probably get all of the seats, and if they get half of the votes in the state, they should probably get half of the seats. But the translation of votes into seats at all the other possible points, getting a quarter or so, something like that, it's less clear what exactly the fair outcome would be. For example, one straightforward account of fairness would be that everything was proportional. If you got 25% of the votes, then you'd get 25% of the seats and so on. The notion of partisan fairness that generally is used in this context, is a little bit more complicated than that, which is that, the mapping of votes into seats doesn't just have to be proportional. It could deviate from being proportional, but as long as it treats both parties equally, it still would be fair. So for example...

Thoko Moyo: In the deviation?

Benjamin Schneer: Yeah. For example, say you're in a state where 55% of the people in that state voted for the Republican Party and they got, the Republican Party based on that 55% of the vote got 80% of the seats. So that's a majority minority outcome, right? They got more seats in the legislature than they did get votes. It may sound unfair, but you don't really know that, unless if you were to flip things around and say the next election, the Democrats got 55% of the votes, but they also get 80% of the seats. If that's true, then it still meets that criteria of partisan fairness.

Thoko Moyo: But in the moment, I mean, if you're having to wait until the next time, it doesn't feel very fair in that particular moment.

Benjamin Schneer: Sure. Yeah. There's lots of debate about exactly the right way to measure this. People will use previous election outcomes to try and understand what's happening.

Thoko Moyo: Okay. Now let's get to gerrymandering, because that's what you hear a lot about. So what is that and one of the concerns about partisan gerrymandering,?

Benjamin Schneer: Partisan gerrymandering is when districts are drawn for the explicit partisan advantage of a particular party. Generally the advantage of whoever is drawing the districts. So it really comes back to what I mentioned at the very start of this conversation, which was that these districts really matter because they determine who wins elections. So if you are drawing the districts and you draw them for your own partisan advantage, it can change election outcomes and change who controls a state legislature or who controls Congress even. So the best estimates, so there's a number of states where there been legal cases about this. I mean, North Carolina is a great example of this. Where at least in the past, the district maps have advantaged one party over the other and they were drawn by that same party.

Thoko Moyo: I guess in my mind I'm thinking, is there another argument? I mean, could someone say, "Well, you know what, you're just being a sore loser." I mean, is it universally agreed that partisan gerrymandering is bad? Or are there cases where people say, "Well, actually maybe you needed to to have that."

Benjamin Schneer: Yeah, so that's a great question. The first point is, it's definitely true that both parties do this. Both parties engage in partisan gerrymandering. Most people would say, and I think the Supreme court even concurs that partisan gerrymandering is probably bad from the perspective of democracy because it is, in some cases it can, take an example where the majority of voters in a state choose one party, but the other party actually ends up winning the majority of seats in the legislature, for example. Where people disagree is what to do about this. Right? So for example, the Supreme Court has found that this is a political issue that they don't want to wait into and sort of kicked it back to the States to figure out...

Thoko Moyo: And this is a recent ruling? Right?

Benjamin Schneer: Right. Yes. Yeah. So the Rucho V. Common Cause case.

Thoko Moyo: Give me a sense of what the significance of this ruling is and the implications. What are the other options then?

Benjamin Schneer: There are a couple potential remedies to a partisan gerrymanders for people who are concerned about them. One is litigation and there's always plenty of that. Another that's increasingly popular is taking the power to draw the Congressional and legislative district lines away from state legislatures and giving them to independent parties. For example, independent redistricting commissions.

Thoko Moyo: Okay. That makes sense.

Benjamin Schneer: Yeah. There are, in the last redistricting cycle, there were several states that used independent redistricting commissions to draw district lines. The most prominent ones would probably be California and Arizona.

Thoko Moyo: How did they get to that point and can any state decide to go that route?

Benjamin Schneer: In Arizona and in California, in each case in previous years, I think in Arizona it was maybe in 2000, there was a ballot initiative. So a proposition that was put on the ballot to change the constitution or to call it to change the constitution, to alter the redistricting process. So yeah, you've hit on a key element of this, which is that independent redistricting commissions are probably only possible in those states where it's possible to have ballot initiatives.

Thoko Moyo: Okay. And that's not a case for all the states?

Benjamin Schneer: Right. Most states where that is true, are Western states actually. And then a handful of others. So Massachusetts for example, there are also valid initiatives. But I think probably, I don't know the specific number, but maybe about half of the states or fewer, it's a possibility.

Thoko Moyo: What happened in Arizona? Who were the people on this independent redistricting commission? What was the makeup?

Benjamin Schneer: In Arizona there are five commissioners. There's a couple of key elements we can focus on the Arizona case. So first, the number one thing that makes the commission independent is that the map that they come up with is not subject to approval by the legislature, by the state legislature.

Thoko Moyo: Okay. So it's truly independent?

Benjamin Schneer: Right. But that doesn't mean that the legislature doesn't have input. Essentially, there are two Republican and two Democratic members of the commission. They're non-politicians, and then one independent chair of the commission. So the parties in the legislature pick the two partisan members of the commission and then all four members of the commission, the Republicans and Democrats have to agree on the independent chair.

Thoko Moyo: Okay. So that makes up the commission and then they draw up the redistricting. So if they don't report to the elected officials and legislature who then approves what they've come up with as the map. I mean, what's that provision? How does that work or do they just do it and that's it?

Benjamin Schneer: Their map is subject to, I believe both the majority and minority parties get to write a report in the legislature, sort of commenting on the map. But ultimately the commission themselves are the ones who put forth the map. Now, in the case of Arizona in the last redistricting cycle, because Arizona was covered by Section 5 of the Voting Rights Act, they had to also seek pre-clearance for the map from the department of justice. So they did have to get pre-approval in in a sense. But that was based not on every single aspect of the map, but on the narrower of whether the map harmed the minority populations in the state of Arizona.

Thoko Moyo: I know you wrote a paper about this with some others. What did we learn from the work of the Arizona independent commission?

Benjamin Schneer: Well, the Arizona case is a really fascinating case. On the one hand, it was a highly contentious partisan process, or it was highly charged. So that made the job of the commissioners difficult. But at the same time, I think that the case of Arizona exhibits some of the opportunities that do exist for states that go down this route of having an independent commission. So for one, they were able to really get a lot of public input into the map that they drew. Before they even started drawing the district lines, they went on a tour of the state and they solicited feedback from folks all over the state getting sort of recommendations for what were important communities of interest, what were things to take into account when drawing the district lines. It was also a very open process that, all the meetings were live streamed and could be attended by the public and you could even submit your own map for them to take into account. So I think there were over 200 maps that got submitted for them to take into account when they were drawing the district lines.

Thoko Moyo: What about things that compactness, I mean, did that result in maybe more compactness? Do you think there was increased competition? Or is that something that you can't really tell just from that work?

Benjamin Schneer: In the state of Arizona, in addition to the federal things that they had to take into account, the constitution of Arizona requires them to take various other factors into account, including compactness, and contiguity, and respecting communities of interest, and natural boundaries. Then interestingly in Arizona, they are also supposed to take into account the competitiveness of the districts. There are a few interesting aspects of that, probably the most contentious one is about competition. So Arizona is a state where I think that it's roughly half and half between the parties. So it lends itself to drawing competitive districts. But previously the state legislature had been dominated by the Republican Party.

Benjamin Schneer: The new district maps that were drawn in the last redistricting cycle in Arizona, I think reflected the competitiveness of the state. So, ultimately what happened in Arizona is they drew a set of maps where I think four were safe Republican districts, two were safe Democratic districts. I think both were a majority-minority districts or voting rights districts and then they had three competitive districts. And so those three districts were districts one, two and nine and ultimately the nice thing about about redistricting is, if you're willing to wait a while, you can look back and see how the map performed.

Benjamin Schneer: So at the time, there was a lot of concern that may be the, the math they had drawn wasn't particularly fair, but time has shown that they drew quite a competitive set of districts that gave both parties a pretty good chance at winning. So in the four elections, so in 2012, 2014, ‘16 and ‘18 since that map was implemented, in two of those cases, and I'm talking about the congressional district map, Democrats got five seats and Republicans got four seats. Then in the other two cases Republicans got five seats and Democrats got four seats. So the way that the map has actually performed has been really quite closely in line with the sort of population shares of the parties.

Thoko Moyo: It was in Arizona as well, where you had an example of where there was some gerrymandering to respect communities of interest. Is that right in the drawing of the districts, if that's the right terminology. I mean, you can correct the way I have a phrase that.

Benjamin Schneer: Yeah, absolutely. There are a few interesting elements. I think what you're referring to is in the Arizona is a good example of how not all instances of gerrymandering have to be about a partisan advantage. So if you look at the Arizona map for congressional districts that was approved not in the last redistricts cycle but two redistricting cycles ago. You'll see there's a district that starts in the Northwest of the state and goes and sort of reaches out almost like an arm to the Northeastern part of the state and then comes back. So if you were to look at that, you would say, "This is a clear gerrymander, something weird is going on here." But in that instance, what was really happening was that the commissioners were trying to respect communities of interest. So what they were doing is they were trying to draw a district that essentially put Native American Indian reservation, particularly the Hopi tribe into a different district than the Navajo tribe. Because the Hopi tribe had at that time at least asked to not be in the same district.

Thoko Moyo: Respecting the wishes of...

Benjamin Schneer: Of a community of interest. So there's an instance where the lines look a little bit unusual but it wasn't for partisan purposes per se.

Thoko Moyo: So it sounds like it had a good outcome, but the constitutionality of the Arizona independent commission was challenged in court and I think the map itself was also challenged. What was that about?

Benjamin Schneer: There were two cases that ended up going to the Supreme Court arising out of all the activity that took place in the last redistricting cycle in Arizona. The first case was challenging the constitutionality of independent redistricting commissions, full stop. The second case was critiquing the legislative district map that came out of the independent redistricting process from Arizona. In particular, whereas, for congressional districts you have to have exactly equal population within the state for each district, you are permitted a little bit of deviation in population across legislative districts. And in the Arizona, case the claim was that the Republican districts were deviating in the direction, sort of like plus 5% and the democratic districts were deviating in the opposite direction, which would in theory allow you to create more Democratic districts.

Thoko Moyo: So in essence the case was alleging that they were favoring the Democrats, I mean is that the bottom line?

Benjamin Schneer: Well that was the claim. But ultimately, in each case the Supreme Court found in favor of the commission and so they were sort of vindicated in what they had done.

Thoko Moyo: So what actually happens though in states where they can't have an independent commission. And I know that some of the work that you are currently doing, your research is actually based on that. What are the options?

Benjamin Schneer: Well, the number one outcome that generally happens is that there's litigation. One thing I'm interested in is when there are disputes between both parties and they're trying to figure out how to draw a map, for example, a good example is in North Carolina, there was recently litigation where the judge said that the current map was a gerrymander and that they, they needed to draw a new map and he essentially charged the two parties in the legislature with coming up with that new map. In other cases, sometimes if a map is thrown out, the judge will appoint an independent third party known as a special master to draw a new map. In most of these cases, no one is very happy with the outcome. In the case of there being an independent third party, often both sides can't agree on whether the person is actually independent.

Benjamin Schneer: Then if there's not a real structure to the process when the parties are supposed to somehow agree on something, that can also go really badly. And so an idea that I've had with some co-authors is to try to create a framework that hopefully both sides would agree on as fair, that would produce a new map that would be less skewed in favor of one party or the other. Specifically what it is, is if you were say in a state like North Carolina where you have 13 congressional districts, what you would do is you would allow each party to participate at different stages of the process. So for example, maybe the majority party would go first and they would actually propose a number of sub-districts.

Benjamin Schneer: So let's say double the number of actual districts. So instead of drawing 13 districts, maybe they would draw 26 districts that meet all the same criteria that you would want to meet for the, if there were 13 districts. Then they would turn the map over to the other side who would get to pair those districts together. Right off the first version of the map. So that would be one example of how each party could take into account what they wanted to take into account. They would be able to act in their own partisan interest, but they would be constrained by the process. What we're trying to show is essentially that, if you have a process like that it results in a map that's much closer to treating both parties equally than if you, of course, just let one part you draw the map.

Thoko Moyo: Has this been tried at all or this is all sort of stuff...

Benjamin Schneer: This is all still in the lab, right? So this is what we're working on now, and the next step will be to try to convince people to give this a try.

Thoko Moyo: Okay. Well, this was fantastic. Well, thank you very much. This was extremely informative. I feel like I got a really nice sense of what it means to redistrict, and all the issues that were going to be in a lot about in 2020.

Thoko Moyo: Thanks for listening. Please join us for our next episode when we'll discuss sustainability and climate crisis response with Harvard Kennedy School professor Robert Stavins, who'd have just returned from participating in the crucial 2019 United Nations climate talks in Madrid.