Redistricting Advanced Course

We are four years away from the next full round of redistricting.  The redistricting process is a combination of federal law, state law, and local politics.  The fact that there are legal rules governing the process means that individuals who do not like one of the many maps (congressional, state senate, state house, county commission, city council) can bring a court challenge to that map.  When discussing federal law, there are two crucial provisions — the Fourteenth Amendment and Section 2 of the Voting Rights Act.  (Additionally, there is some suggestion that the First Amendment may have an impact on certain types of gerrymanders.)  This week the Supreme Court issued an opinion on North Carolina’s congressional districts that attempted to reconcile the Fourteenth Amendment and the Voting Rights Acts.

The background of this case is that, two decades ago, the Supreme Court (in a case involving North Carolina) held that a racial gerrymander — one in which race played a significant role in the drawing of the lines — would be subject to strict scrutiny (the most state unfriendly form of review — requiring showing of both a “compelling interest” justifying the use of race and that the use of race was “narrowly tailored” to meet that compelling interest).  Over the years, the Supreme Court has clarified that, to trigger state scrutiny, race must be the predominate factor in drawing the lines.  The Supreme Court has also clarified that Section 2 of the Voting Rights Act can be a compelling interest.

North Carolina currently has three Democratic representatives in Congress — from the 1st district, the 4th district, and the 12th district.  Before the last round of redistricting, African-Americans represented around 48% of the voting age population (BVAP in election law jargon) of the 1st district and 43% of voting age population of the 12th.  That BVAP was enough to make African-Americans into a very significant segment of the Democratic primary vote in those districts and there are enough white Democrats in those districts that — even in bad years nationally, the Democratic candidate gets well over 60% of the vote in those districts.  In short, African-Americans could get their preferred candidate selected in those districts even though they did not have 50% of the vote.  In the trial court, North Carolina conceded that they did take race into account in drawing the 1st district but claimed that they did so to meet Section 2 (that is by making the 1st district into a majority-minority district),  On the 12th district, North Carolina claimed that they did not draw that district to pack it with African-Americans but rather to pack it with Democrats.  However, there was some evidence that — at least for one county in the district — they did expressly consider race and, also, that they used race as a proxy for partisanship.  Additionally, the 12th was already compliant with “one man, one vote” even if North Carolina had kept the old district lines and the changes added mostly African-Americans while removing mostly whites.

The Supreme Court made three crucial rulings in this case:  1) using race as a proxy for partisanship is still using race; 2) there is no particular way that the party claiming a racial gerrymander has to prove the existence of a racial gerrymander (i.e. the party challenging the gerrymander does not have to produce an “alternative” map that closely matches the goals that led to the actual map); 3) there needs to be a substantial reason to believe that the racial gerrymander is necessary to comply with the Voting Rights Act.  In this case, because the history of the districts showed that African-Americans could easily elect their preferred candidate even though the BVAP was not a majority in the district, the Voting Rights Act did not require the conversion of these “opportunity” districts into majority-minority districts.  As such, the lower court decision invalidating the legislatively-drawn districts and drawing a new temporary map (at least until the legislature draws its own new map) was upheld.

A significant feature of this decision is its discussion of “race as party.”  There are currently three basic types of gerrymander noted by election law experts — a racial gerrymander (lines drawn based on race for racial reason), a partisan gerrymander (lines drawn on past partisan performance for partisan reasons), and race as party gerrymander (using racial composition to approximate partisan vote).  This decision rejects any attempt to defend a gerrymander as actually being a race as party rather than racial gerrymander.

There remains the issue of partisan gerrymander.  The last time that the Supreme Court looked at partisan gerrymanders, the Supreme Court issued an ambiguous split decision.  The controlling decision kept open the possibility that such a claim could be raised but found that the challengers failed to propose any usable standard that would permit a court to find that the legislature went too far.  Since that decision, there has been a massive change in data management (of course, not just for redistricting purposes) that both makes it easier for those drawing maps to draw very precise lines to achieve partisan goals and also to measure the partisan impact of those lines.

Last November, in a challenge to Wisconsin’s state legislature, a three-judge panel determined that there was a usable standard for measuring a partisan gerrymander.  More significantly, the panel found that Wisconsin had engaged in a partisan gerrymander and that the lines could not be justified by traditional redistricting goals (e.g., compactness, respecting communities of interest, etc.).

In part, the Wisconsin involves a new statistical analysis.  That analysis (the “efficiency gap” or “EG” ) looks at how many votes are “wasted” — i.e. votes cast for the losing candidate or excess votes (more than 50% plus one) for the winning candidates.  In a close race, the winning party wastes few votes and the losing party wastes a significant number of votes.  In a landslide, the winning party wastes more votes and the losing party, while still wasting a large number of votes, wastes fewer votes than it would in a close race.  The efficiency gap looks at the total number of wasted votes state-wide by subtracting the number of wasted votes that one party has from the number of wasted votes that the other party has and then dividing by the total number of votes cast.  Imagine for an example, a state in which 60 of the districts favored one party by 55-45%  and the remaining 40 favored the other party by 75-25% with 3,000 votes in each district.  In the 60 districts favoring party A, party A wastes 5% of the total vote (150 in each district) and party B wastes 45% of the vote (1350 votes) for a state-wide total of 9,000 wasted votes for party A and 81,000 wasted votes for party B.  In the 40 districts favoring party B, both parties waste 25% of the vote (750 votes) for a state-wide total of 30,000 votes each.  The net is that — out of 300,000 votes statewide, there is an efficiency gap of 72,000 wasted votes for party B or 24% of the total vote in favor of party A.  (Also turning 43% of the state-wide vote total into 60% of the seats.)  The challengers proposed a two-part test for determining if there was a partisan gerrymander:  1) was there an intent to engage in a partisan gerrymander; and 2) does the EG show a significant partisan gerrymander — defined as an EG of 7% or more in favor of that party).  If the challengers can meet both elements, the courts would then shift the burden to  the defenders of the map who could win by showing that the map was the legitimate result of state policy or inevitable given the state’s political geography.  In other words, a state does not have to draw weird lines to overcome the fact that 60% of the state lives in areas where 60% of the voters are Republicans and the other 40% live in areas where 70% of the voters are Democrats.

While not strictly adopting the test proposed by the challengers, the Wisconsin panel did find that EG was a useful device in determining whether a party had proven an intentional partisan gerrymander.  The Wisconsin panel also held that the state had failed to provide sufficient justification for those lines.

Under federal law, the appeal of this decision goes directly to the Supreme Court.  The Supreme Court has three options:  1) affirm without briefing and argument; 2) reverse without briefing and argument; or 3) schedule briefing and argument.  Wisconsin has asked the Supreme Court to reverse without briefing and argument.  If the Supreme Court decides to grant full briefing, Wisconsin has asked for a stay of the panel decision (which requires Wisconsin to draw new lines this year in time for the 2018 elections or the panel will draw their own lines).   As the Supreme Court has never adopted standards governing a partisan gerrymander claim, it is unlikely that the Supreme Court would affirm without full briefing and argument.  We should know by the end of June when the Supreme Court breaks for the summer whether they will grant full briefing and argument on this case (instead of reversing without argument).

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One thought on “Redistricting Advanced Course

  1. alexismoore

    Redistricting is always local. The same way county maps look weird and not square, the same way redistricting is following locally.
    Usually is done to help an elected politician in office or to undercut donor/voting power of existing one. It is always about the people who run for office and not about the voters. Courts have settled for generations how to perform this. Do not expect drastic changes.

    It is a redistribution of power at the expense of the voters.

    Alexis work as an ambassador at Scale Campaign – start up company specialized in election software.
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