As states finish the process of redistricting congressional and legislative maps and litigation takes off in contentious states, the question of who redistricts is central to the argument about whether maps are fair. State legislatures draw most of the maps for congressional and legislative districts, but there are exceptions. Seven states include other elected officeholders as part of political commissions to redistrict; several others require independent commissions (staffed by non-politicians) to redistrict in place of the legislature. Redistricting reformers largely instigated the creation of these non-legislative bodies, believing that they would “bring fairness to redistricting.” But partisan fights about the fairness of these districts have already led to litigation. Reformers allege corruption of these bodies most strongly in Ohio and Arizona, with claims of outright rigging of the process.
There is no set recipe for fair redistricting maps, but redistricters must be free from direct legislative and party organizational intervention and legally obligated to pursue nonpartisan redistricting criteria. Institutional barriers that protect against legislative involvement generally make independent commissions and courts the most likely to produce unbiased maps. Even here, however, sufficiently motivated politicians can overcome these barriers, thus necessitating constant vigilance.
As a general rule, elected officeholders within the executive and legislative branches have individual and party-based incentives to thwart the public interest. Whereas elections should enable voters to credibly threaten loss of office for individual legislators and the legislative majority party based on poor performance, elected officeholders would rather avoid this fate. Political scientists Gary Cox and Jonathan Katz note that when holding unified political power, parties produce congressional and legislative maps that ensure their party’s control, even when these go against the will of voters. Elected officeholders generally will seek to advance their own interests at the expense of electoral competitiveness. For redistricters, then, the stronger the partisan motivation – in the form of relying on legislative majorities to advance policy interests – the more certain one can be that political interests will taint a proposed map.
The redistricting bodies with the strongest incentive to produce incumbent and/or partisan gerrymanders are legislatures and commissions made up of politicians. I analyzed data on the competitiveness of congressional and legislative seats and found effectively no difference between districts drawn by legislatures and politician commissions. Additionally, the political bias shown in maps drawn by politician commissions does not significantly differ from that of legislature-produced maps, as documented in the book Gerrymandering in America. During the 2000 and 2010 redistricting cycles, 58% of the legislature- and politician-commission-produced maps exhibited partisan bias; the remainder effectively engaged in incumbent-protection plans. Any state relying on politicians to produce “fair” or competitive maps is not likely to succeed.
Hope exists, however, for maps drawn by independent commissions and courts. These bodies produce consistently more competitive districts, and over 80% of their maps did not exhibit partisan bias. While not perfect, these bodies appear preferable to the alternatives. Independent commissions enjoy their state’s constitutionally granted power to start the redistricting process; somewhat more constrained, courts must wait until a technical issue or failure arises in the redistricting process before they can intervene.
While rules vary by state, the defining feature of these bodies is their power to propose maps protected from direct legislative input. Arizona, California, Colorado, Idaho, Michigan, Missouri, and Washington all use independent commissions. State laws vary but require at least some nonpartisan voting members and separation from elected officeholders. (The most stringent process takes place in California, where the state thoroughly investigates commission members for any conflicts of interest and bans communications with state parties.) These commissions must redraw their state’s districts from scratch without legislative input or partisan data, preserving communities of interest and municipal boundaries. None of the independent commissions proposing maps during the last two redistricting cycles exhibited partisan bias, though they have weaknesses, too – election-law scholars note that they lack the resources of party organizations to hire experienced partisan mapmakers with access to precinct-level election data and the input of party leaders. Still, stripping independent commissions from the input of party organizations can lead to fairer maps simply by making it more difficult to gerrymander.
Most politically astute observers know that courts constantly mediate litigation alleging partisan and racial gerrymanders. But courts can do the redistricting, in place of legislatures and politician commissions, should one of two conditions be met: if a legislature fails to redistrict in time for candidates to file to run for office, or if approved maps contain obvious technical, population, or geographic contiguity violations. State courts – and occasionally federal courts – redistrict under these conditions. The first condition tends to arise the most in states with divided governments, and the second where legislators have limited resources to hire competent professional consultants amid time constraints.
While courts tend to be preferable to state legislatures and politician commissions, they have produced some biased maps. Whether a court produces a biased map depends entirely on whether it modifies an existing map or starts from scratch. Should a court modify a proposed base map, its intent is to implement minimal changes. All the biased court maps released from the 2000 and 2010 cycles followed such an approach. However, should a court hire an outside mapmaker not bound to the proposed legislative or politician-commission map, then it has the resources and expertise to pursue an unbiased map that adheres to state criteria. These experts possess the ability to find essentially neutral starting base maps and adjust accordingly. Within the current redistricting cycle, the Virginia state supreme court chose outside experts Bernard Grofman and Sean Trende to produce original maps within 30 days after the state’s politician commission failed to redistrict; the Princeton Gerrymandering Project graded the result an A for partisan fairness. None of these expert-drawn maps exhibited partisan bias during the 2000 and 2010 redistricting cycles.
The ability of independent commissions and courts to adopt unbiased maps depends on their separation and lack of communication with party organizations. David Daley alleges that within Arizona, the state’s Republican Party managed to nominate an “independent” commissioner with financial and social ties to the GOP. The Princeton Gerrymandering Project graded the effort a C; it’s possible that Daley is correct that a another commissioner might have adopted a fairer map. Likewise, Virginia’s process introduced the potential for bias by allowing parties to nominate special masters, with Republicans generally hostile to Grofman and Democrats to Trende. A better process might establish a truly nonpartisan mapmaker through some official set of guidelines – such as lack of financial connections and communications with parties – while allowing parties to veto nominees instead of holding nomination power. In any case, for the time being, courts and independent commissions appear to be the better alternative. The public, however, should keep a watchful eye on the redistricting process.
John Curiel, Ph.D., is an assistant professor of political science at Ohio Northern University. The information and opinions expressed in this column represent his own views and research.