Login | December 13, 2018

Watching redistricting reform in 2018

Legal News Reporter

Published: January 12, 2018

Amid growing concerns about the present administration’s erosion of democratic norms, this coming year could see some real gains toward better government in one area: redistricting reform. A pending Supreme Court case could establish new standards for policing partisan gerrymandering. Plus, this could be the year that the latest reform proposal from Fair Districts Ohio makes it onto the ballot.

In October, the Supreme Court heard argument in Gill v. Whitford, a case challenging how Wisconsin Republicans drew districts after the 2010 census. It appears from oral argument that the justices are lining up in the usual 4-4 configuration with Justice Anthony Kennedy as the swing vote.

Any conversation about redistricting must acknowledge three basic truths. First, gerrymandering is an obnoxious feature of American democracy that carries many vices. Second, burgeoning computer power and sophisticated modelling has made partisan redistricting more effective than ever. And third, for all that, it is difficult to glean workable standards about district drawing from a constitution that says precious little about voting.

In past cases, the court held that districts must be contiguous, reasonably compact and where possible keep intact communities of interest. The clarity of the first of these demonstrates the inadequacy of the other two. Whether a district is contiguous is an easy yes or no.

On the other hand, how should a court determine how much compactness is necessary to be reasonable? How many splits to a community of interest fails muster?

It’s easy to identify an egregious case like Ohio’s Ninth District. Designed to pit Toledo’s Teresa Fedor against Cleveland’s Dennis Kucinich, in runs along the Lake Erie shore, covering a skinny strip five counties long. Hence the nickname, “The Snake on the Lake.”

Drawing that district was nauseatingly cynical and arguably unreasonable. But what would be reasonable? Three counties? Maybe four?

From the Gill oral argument, it appears that Justice Kennedy is concerned both about the expressly partisan process in Wisconsin and about the enduring difficulty with creating workable standards.

The plaintiffs seek to establish a standard by quantifying what they call the vote efficiency gap. It’s complicated, but it basically measures how many votes are wasted by one party, in the form of the votes cast for a losing candidate and the excess winning votes stacked into a supermajority district. The method then compares the wasted votes for each party statewide to determine the extent to which the map favors one over the other.

Again, this offers a way of quantifying the degree of partisanship, but still leaves the vexing question of where to draw the line. We all might agree that an extreme efficiency gap is unfair, but identifying a number to serve as a bright-line rule will be necessarily arbitrary.

Regardless of what the court does, it will not go as far as the Fair Districts proposal can. This is the second major push for the coalition. A 2015 ballot issue reforming the drawing of state legislative districts passed overwhelmingly. The current proposal, still in the signature-gathering stage, would do the same for Congressional districts.

Recall that this is the second major push at redistricting reform in as many decades. Back in 2005 a coalition of good-government and progressive groups drafted a set of proposals known as the Reform Ohio Now amendments that they got onto the ballot in 2005. The redistricting issue lost badly at ballot box, in part because the independent, self-perpetuating commission was easy to caricature as an unchecked bureaucracy.

The Fair Districts proposal maintains the present structure of the redistricting commission, favoring instead a new set of standards under which the commission must operate. Each of the standards riffs on the classic constitutional requirements, but creates firmer rules in a way that a court could not.

For example, the proposal establishes a preference against splitting counties, municipalities or townships, which establishes an easily adjudicated for determining what constitutes a community of interest and how much compactness is reasonable. In short, the proposal exemplifies the virtues of legislation over judge-made rules.

The proposal is not everything I would like. For example, it directs the commission to aim for a split in the Congressional delegation that approximates the statewide vote. I would rather see an emphasis on maximizing the number of competitive districts.

Nonetheless, the measure would offer movement in the right direction. I believe that working toward more competitive legislative elections is an essential next step for American democracy. One of the most important functions of democracy is to choose leaders in a way that carries a consensus of legitimacy. An electoral system structured to routinely ignore the will of a majority of voters sits on a shaky foundation.